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Bombay High Court disposes PIL raising permission to felling of trees for road widening

The Bombay High Court disposed of a Public Interest Litigation (PIL) filed raising issue regarding the procedure adopted by the Pune Municipal Corporation and its authorities in granting permission to the proposed felling of trees, so as to facilitate the road widening of Ganeshkhind Road, Sancheti upto University in Pune.

The Counsel for the Petitioners submits that the permission accorded by Notification dated 18th September 2023 to fell the trees is absolutely contrary to the statutory provisions contained in the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 (‘Act of 1975’). It has been pointed out by the learned Counsel for the Petitioners that as per the requirement of Section 8 of the Act of 1975, the Tree Officer is required to hear the objections and suggestions in respect of the trees, which are proposed to be felled and that the period for having objections shall not be less than seven days. The Tree Officer is thereafter to submit his report   alongwith the objections and suggestions to the Tree Authority, which shall then take an appropriate decision accordingly.

It has been argued that contrary to the said provisions, in the instant case, the notice was published on 6th September 2023 inviting objections and suggestions, in respect of the permission sought, to be furnished by the members of the general public between the period from 7th September 2023 to 18th September 2023 and on the date of the expiry of the said period, i.e., 18th September 2023 permission has been granted for removal of 105 trees, with the further stipulation that 87 trees shall be replanted. In her submissions, the learned Counsel for the Petitioners has thus stated that the statutory provisions as contained in Section 8 of the Act of 1975 having not been followed, it renders the permission accorded by the Tree Authority, as patently illegal and thus incapable of being acted upon. Various judgements have been cited before the Court in support of the said submissions by the learned Counsel for the Petitioners, who thus argued that on the basis of such permission granted for felling of trees, no action can be taken,   otherwise the same would be in violation of the statutory provisions contained in the Act of 1975.

Abhijit P. Kulkarni   Counsel representing the Respondent-Pune Municipal Corporation has however submitted that the procedure, as prescribed in the Act of 1975, has been followed and in fact the trees are required to be cut and removed for the construction of Metro Project in Pune, which is essentially required. However, Kulkarni is unable to refute the fact that it is only on the last date of the period within which the objections and suggestions were required to be submitted by the members of the general public, i.e., 18th September 2023 itself, the permission has been accorded.

The State Legislature has enacted the Act of 1975 with the object of regulating felling of trees in the urban areas in the State of Maharashtra and has accordingly created Tree Authorities under Section 3 of the Act of 1975, which have been established in every local urban body. In terms of provisions contained in Section 2(e), the Tree Officers have also been  appointed in urban local bodies, who are Officers appointed as such by the Tree Authorities for the purpose of administrating the Act of 1975. Section 8 of the Act of 1975 puts certain restrictions on felling of trees and provides that in case any person proposes to fell a tree, he needs to apply in writing to the Tree Officer for permission in that behalf. Further, the requirement of Sub-section (2) of Section 8 is that such an applicant shall furnish a site plan indicating the position of the tree, etc., which is proposed to be cut and the reasons for the same. As per the Proviso of Sub-section (2) of Section 8, where a significant number of trees are proposed to be removed, the alternate design alongwith the number of trees required to be cut is also to be submitted alongwith the application seeking permission for felling the said trees.  

As per the scheme contained in Section 8, the Tree Officer, on the receipt of the application, has to give public notice by advertising it. He has also to personally inspect the tree and hold an inquiry. The Tree Officer is further required to determine the age of the tree proposed to be cut as per the   criteria and the methods as may be notified by the State Government. Section 8 further provides that after expiry of the period of submission of the objections and suggestions, the Tree Officer shall submit his report alongwith the objections and suggestions to the Tree Authority or an officer mentioned in Sub-section (6), as the case may be. As per Sub-section (6), if the number of trees, in respect of which permission is sought, is 25 or less, the application seeking permission can be decided by the Tree Officer himself, otherwise the final decision is to be taken by the Tree Authority.

The Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S. Doctor  thus, see a meaningful purpose in having such an elaborate procedure as prescribed in Section 8 of the Act of 1975. One of the purposes of having such a procedure is to take into consideration the objections and suggestions to be submitted to any such proposal for felling of trees by the members of the general public, who, as in this matter, in our opinion, are also the stakeholders having substantial interest, since it concerns the environment and there can be no manner of doubt as to the adverse environmental impact that either indiscretionate or unnecessary felling of trees may cause. The purpose of providing such procedure under Section 8 is also that the objections and suggestions submitted by the members of the general public are taken into consideration appropriately and that is why the requirement under Section 8 is that the Tree Officer, after receiving the objections and suggestions, shall submit the same to the Tree Authority alongwith his inquiry report, etc.

It is true that the Tree Authority is the final authority empowered to take a decision in the matter, however, he needs to consider not only the report and recommendations submitted by the Tree Officer, but also the objections and suggestions, which may be filed by the members of the general public. If the Bench examine the facts of the present case in light of Section 8 of the Act of 1975, what the Court find is that the last date of submission of objections and suggestions by the members of the general public, as per the notice published by the Tree Officer, was 18th September 2023 and it is on the same day that the permission has been accorded by the Tree Authority. 

The Bench thus, find that the Tree Authority while issuing the impugned Notification dated 18th September 2023, hardly had any time either to consider the report and recommendations made by the Tree Officer or to take into consideration the objections and suggestions, which he might have received through the Tree Officer, from the members of the general public. Such a course adopted by the Tree Authority, in our considered opinion, does not conform to the statutory provisions available in Section 8 of the Act of 1975. The same has to be strictly followed both, in form and in substance. Failure to ensure strict compliance with the provisions of the Act would render the provisions of Section 8 as also the salutary objects of the Act nugatory apart from having grave and deleterious effects on the environment. Such a course cannot, at any cost, be permitted.

At this juncture, Kulkarni , on the basis of instructions received from the Additional Municipal Commissioner, submits that no action, pursuant to the impugned Notification dated 18th September 2023, shall be   taken and no tree shall be removed, however the Tree Officer and the Tree Authority shall conduct the exercise of considering the prayer for felling of trees afresh, after issuing a public notice in terms of the provisions of Section 8 of the Act of 1975 and will consider the objections and suggestions, which may be filed or submitted, pursuant to the public notice to be published afresh, by the members of the general public. Accordingly, in view of the submissions made by Kulkarni, on the instructions received by him from the Additional Municipal Commissioner, Pune, disposed of the Public Interest Litigation with the following directions :-

“(i) In terms of requirement of Section 8 of the Act of 1975, the Tree Officer shall publish a fresh public notice giving a period of at least seven days for furnishing the objections and suggestions, in view of the permissions sought for felling of trees. 

(ii) The Tree Authority while publishing a public notice in terms of Sub-section (3) of Section 8 of the Act of 1975 shall also personally inspect the trees, hold an inquiry and shall mention in the advertisement, if the trees to be removed are the heritage trees, as also shall determine the age of the trees sought to be removed as per the criteria and method, which may have been notified by the Government.

(iii) Once the period of objections and suggestions expires, the Tree Officer shall furnish the entire material along with the report and recommendation, if any, to the Tree Authority, which shall consider the material, that may be made available and take appropriate decision on the prayer for felling of trees.

(iv) We specifically direct that till the entire exercise in terms of this order as also keeping in view the provisions contained in Section 8 of the Act of 1975 is undertaken and completed afresh, no further felling of trees shall take place pursuant to the impugned Notification dated 18th September 2023, which shall abide by the fresh decision to be taken under this order. 

(v) The learned Counsel representing the Pune Municipal Corporation undertakes to communicate the gist of today’s order immediately to the Authorities concerned without waiting for its certified copy or the order being uploaded. 

(vi) We make it clear that the Court has not adjudicated any other issue(s) raised in this Public Interest Litigation except the issue relating to the procedure to be followed for according permission to a prayer for felling of trees.”

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