This article is written by Qamar of RMLNLU. 

Introduction

On June 24, 2018, #DelhiChipkoAndolan was trending on twitter when over 1500 people protested in the Sarojini Nagar area of south Delhi against the proposed cutting of over 16000 trees for a project by the National Building Construction Corporation (NBCC).

As the above hashtag rightly conveys, the citizens of Delhi took the matter into their own hands against the felling of their already depleting green cover. Amidst the clamour that has been going on regarding the legality of this urban deforestation, some relief was seen when the Delhi High Court put a stay on the project till July 4. The Ministry of Urban Development in 2016, had proposed redevelopment of seven residential accommodation colonies under the name of ‘Master Plan 2021’ aiming to cater to the city’s population.[1]

Bypassing the Law

As a responsible citizen of Delhi, you are expected to think how the government can approve the cutting down of trees on such a magnitude, which could majorly turn the air of this city from unhealthy to toxic. It is important to know how the legal framework, both at the centre and the state level, allow such proposals to pass. But before going into that, let us look at the obligations of the state towards the environment.

• In the case of Vellore Citizens Welfare Forum v. Union of India, it was laid down that the precautionary principle, in the context of the municipal law, observes that environmental measures shall be taken by state and must be anticipated, prevented and the cause of environmental degradation shall be attacked.[2]
• In case of serious irreversible damage, lack of scientific certainty should not be a reason for the postponement of measures that need to be taken to prevent environmental degradation and the onus lies on the developer to show that his action is environmentally benign.[3]
• The above principles along with the other provisions of the constitution reiterate the obligations of the state towards the environment to align it with the principle of good governance.

Central Government

A project of such nature and scale has to get an Environmental Clearance prior to the work getting started. The procedure to get an environmental clearance for any project has been laid down in the Environment Impact Assessment, Notification 2016(EIA).

EIA plays a major role when it comes to any developmental project and it is basically a procedure to know the positive and negative aspects of any proposed activity. It may also be said that it is a decision-making process to decide whether a developmental project must start or not. EIA is a process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development proposals prior to major decisions being taken and commitments made.[4] Housing projects come under category B1, in which the EIA report has to be mandatorily filed. When EIA report is filed for getting prior environmental clearance, the process goes through namely, four stages:

1. Screening
2. Scoping
3. Public Consultation
4. Appraisal

• Screening is an important phase for every environmental clearance. This phase decides the nature and scale of the project depending on which the categories are allotted. The category decides whether the EIA report needs to be filed for approval or not. Under the current law, building projects with an area of more than 20,000 square meters require a mandatory impact assessment study.[5]
• Scoping is about setting out the issues to be considered in the EIA, the parameters and the broad approach that is to be taken during the assessment to correctly assess the environmental issues.
• Public Consultation refers to the phase of stakeholder analysis. It is a process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. All Category ‘A’ and Category B1[6] projects or activities shall undertake public consultation. However, it is not a necessary practice for all buildings/ construction projects/ Area Development projects and Townships as they come under the exception clause of public consultation in the environment impact assessment notification, 2016[7]
• Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance.

It is evident that there is no legal recourse as far as the Environment Impact Assessment and the grant of environmental clearance is concerned by the Ministry of Environment and Forest. Filing a PIL was the only plausible option and the protest at Sarojini Nagar is an unavoidable moral question to the government.

Delhi Government

Delhi has its own act to save trees under the name of Delhi Preservation of Trees Act, 1994. Section 29 of the Act states that the Government has the power, subject to such conditions, if any, as may be imposed; the Government may, if it considers it necessary so to do in the public interest, by notification, exempt any area or any species of trees from all or any of the provisions of this Act.

Therefore, here is how the proposed project becomes a legally sound act even when undertaken by the government of Delhi. The lieutenant governor can pass such orders of felling 11000 trees in Sarojini Nagar, 2294 trees in Netaji Nagar and 1454 trees in Nauroji Nagar in the name of ‘development’ and ‘public interest’ by exercising the powers conferred to the government under Section 29 of the Delhi Preservation of Trees Act, 1994. The irony is that the same act establishes the Tree Authority in the capital region for the preservation of trees. The purpose of this act is to save trees from depletion by human activities.

Duties of the Tree Authority mentioned in the Act

1. The preservation of all trees within its jurisdiction.
2. Carrying out a census of the existing trees and obtaining, whenever considered necessary, declarations from all owners or occupants about the number of trees on their lands.
3. Development and maintenance of nurseries, the supply of seeds, saplings, and trees to persons who are required to plant new trees or to replace trees which have been felled.
4. Getting plantation and transplantation of trees necessitated by the construction of buildings. New roads or widening of existing roads or replacement of trees which have failed to come up along roads or for safeguarding danger to life and property.
5. Organization of demonstrations and extension services for the purposes of this Act and assisting private and public institutions connected with planting and preservation of trees.
6. Undertaking such schemes or measures as may be directed from time to time by the Government for achieving the objects of this Act.
7. Undertaking a critical study of the proposals of various government departments and private bodies for construction of buildings, roads, factories, irrigation works laying out of, electric telephone. telegraph and other, transmission lines with regard to the protection of existing trees and planting of more trees, wherever possible.[8]

Compensatory afforestation is not the answer

The backup plan of these proposed projects, which carry out felling of trees at such a magnitude, is compensatory afforestation. It does not need a scientist to understand that five saplings cannot replace five fully-grown trees planted. Let us look at the reasons as to why planting trees are not the damage reversed.

• A fully-grown tree is an ecosystem in itself, providing oxygen to five people.
• Saplings need to be protected and it takes years for them to grow into a full-fledged tree.
• Bad record of organization and government regarding compensatory afforestation.

The acquisition of land in exchange for a hollow promise of compensatory afforestation has been unprecedented. What is more unfortunate is that the felling of trees is being formalized by neglecting the ground realities and the possible consequences that might occur. Compensatory Afforestation Fund Act, 2016 came into force for setting up Compensatory Afforestation Fund Management and Planning Authority (CAMPA) at both central and state level to ensure expeditious and transparent utilization of amounts realized in lieu of forest land diverted for non-forest purpose.

What you can do to save a tree from being cut down

There are three steps:

• Challenge the cutting down of a tree.

• Ask for proof of permission to cut down the tree.
• Call 100 or Tree helpline number (2337 8600)

To read more on your legal capacity to save a tree from being cut down. Click on this document released by the Delhi Forest Department.

Conclusion

As a responsible citizen, you are expected to speak up for the trees. No matter where it stands, everyone has the right to breathe its oxygen. The current issue highlights how the city is being developed lately at the cost of our trees and our health. Delhi has already started witnessing dust storms because there are fewer and fewer trees to grab the dust, and NO, the saplings being planted in their place are not enough.

References

[1] http://pib.nic.in/newsite/PrintRelease.aspx?relid=146815

[2] (1996) 5 S.C.C. 647.

[3] Id.

[4] S.C.SHASTRI, ENVIRONMENTAL LAW 150 (5 ed. 2015).

[5] Item 8 of the Schedule (Construction/Township/Commercial Complexes/ Housing of EIA Notification 2006.

[6] See Para 4 (iii) of the EIA Notification 2006.

[7] See Para 7 (III)(i)(d) of the EIA Notification 2006.

[8] See Chapter IV of THE DELHI PRESERVATION OF TREES ACT, 1994.