Delhi High Court
Delhi Development Authority vs Deputy Conservator Of Forests, on 29 July, 2022
$~2 (SB)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 29.07.2022
+ W.P.(C) 11261/2022 & CM APPL. 33057/2022
DELHI DEVELOPMENT AUTHORITY ....Petitioner
Through: Ms. Prabhasahay Kaur, St.
Counsel for DDA with Ms.
Kritika Gupta, Mr. Arkaj
Kumar, Advocates with Mr
S.K. Meena, Deputy Director,
Horticulture, DDA with Mr
Yashpal, SE-2, PCC.
versus
DEPUTY CONSERVATOR OF FORESTS ..... Respondent
Through: Mr. Avishkar Singhvi, ASC
with Mr.
Naved Ahmed, Advocate.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZRI, J. (ORAL)
The hearing has been conducted through hybrid mode (physical
and virtual hearing).
1. Issue notice. Notice is accepted by learned ASC for the
respondent. At joint request, the petition is taken up for
disposal.
2. By application under s.9 of the Delhi (Preservation of Trees)
Act, 1994, the petitioner DDA had sought permission to cut
some trees (693) for a public project i.e., Construction of Storm
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Water Drain at Sector-8, Dwarka, to prevent upstream water-
logging especially during the monsoon season, in and around
Indira Gandhi International Airport, Delhi. The proposed
remedial measure includes widening of the northern and
southern stretch of the drain upto Najafgarh. The project site
was inspected by the Tree Officer, he held enquiries and after
considering the matter, the requisite permission was granted.
By notification dated 17.05.2022, published in Delhi Gazette-
Extraordinary, an area of approximately 4.33 hectare was
exempted from provisions of s.9(3) of the Act. In effect, 637
trees were recommended for transplantation and 56 trees
(keekar) were permitted to be cut. Compensatory plantation of
6930 trees (i.e. ten times of the number of trees which would be
effected by the proposed project) was directed and an amount of
Rs. 3,95,01,000/- towards administrative expenses and
contingency charges was to be deposited by DDA. The tree
varieties which could be planted were Neem, Amaltas, Peepal,
Pilkhan, Gular, Bargad and Arjun along with other native
species, at the locations identified and mentioned/ detailed in
the said notification. The DDA promptly deposited the
aforesaid amount and communicated the same to the Tree
Officer.
3. However, by a letter dated 29.06.2022, the respondent - while
acknowledging the "in-principal approval" of the
transplantation/cutting of trees and of the deposit of the monies,
informed the DDA that permission of felling of trees had been
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restricted on account of order dated 28.04.2022 passed by this
Court in Neeraj Sharma vs Vinay Sheel Saxena & Ors.
CONT.CAS(C) No. 851/2021. The relevant portion of the said
order inter alia reads as under:
"...4. It will be logical and prudent to transplant fully
grown trees instead of cutting them down. Let the
department of Deputy Conservator of Forests (DCF)
file an affidavit detailing:
i) the number of permitted trees to be cut down in the
last three years, month-wise and zone-wise;
ii) how many trees were transplanted, if any,
iii) how many compensatory afforestation have been
completed and the status of each compensatory
afforestation with photographs.
...
8. In the circumstances, it would be appropriate that
the Tree Officer(s) give due consideration to
transplantation of each tree which is sought to be cut,
before granting any further permission for cutting of
trees. This would entail inspection of the trees which
are sought. The reason for grant or denial of
permission would have to be spelt out in the order of
the Tree Officer along with photographs of each
tree...."
4. The import of the said order required that the denial or
permission of cutting of a tree would be preceded by inspection
of the tree and consideration whether it could be transplanted.
The Tree Officer had visited the DDA's project site, carried out
inspection, considered the matter and found that 637 trees could
be transplanted while 56 trees could be cut - the latter being
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belonging to the vilayti keekar species. The corollary
compensatory plantation and deposit of monies etc. was
accordingly permitted by the aforesaid notification.
5. The learned counsel for the respondent submits that the
impugned order of 29.06.2022 was more in the nature of erring
on the side of caution, in view of the subsequent order passed in
Neeraj Sharma (supra) on 19.05.2022. The said order reads
inter alia, as under:
"...4. Remedial measures are warranted. It would,
therefore, be in the fitness of things, in the public
interest as well as for the sake of the environment for the
present and future generations that tree-felling in Delhi
is not permitted till the next date, so as to ensure that
felling is done only when it is fully ensured by the
applicant that the trees would at least be transplanted.
Surely, there is no other way to mitigate Delhi's daily
ecological and environmental degradation. Let the data
be collated and filed by DCF (Headquarters) or an
officer of equivalent or higher rank and an affidavit
apropos exemptions granted under section 29 of the Act
and of offence cases filed by the Tree Officer, for the
years 2019, 2020 and 2021..."
(emphasis supplied)
6. However, it is clear that the order of 19.05.2022 also reiterates
that issue of transplantation was to be examined and felling of
trees was not precluded where transplantation was feasible.
Clearly the aforesaid order is a reiteration of earlier order of
28.04.2022. In the present case over 90% of the trees were to
be transplanted. Additionally ten times of the number of trees
which would be affected by the project/tree felling were
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directed to be planted in the same neighbourhood.
7. Ms. Prabhsahay Kaur, the learned Standing Counsel for the
DDA has shown to the court the area in which the trees will be
cut and from where they will be taken out for transplantation.
Satellite photograph of the same is reproduced herebelow:
8. In the demarcated portion the effected trees would be along the
lower horizontal line tilted from left to right and continuing
little distance up north. Even the lands where the
transplantation and compensatory trees has to be done have
been demarcated and the same are reproduced hereunder:
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9. From the above it is evident that the impugned order of
29.06.2022 has misconstrued the aforesaid two orders passed in
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Neeraj Sharma (supra). Therefore, the impugned order is set
aside.
10.DDA has undertaken to abide by the directions of the DCF as
detailed in notification dated 17.05.2022 and also to keep the
said officer informed of progress in the matter. An affidavit has
been handed over by the learned Standing Counsel for the
DDA, in which the Deputy Director (Horticulture), DDA has
undertaken as under:
"...4. The deponent undertakes to maintain the above said
trees and scrupulously adhere to all the conditions
imposed by the Delhi Preservation of Trees Act, 1994 and
the Notification/Permission dated 17.05.2022 and ensure
the highest possibly survival rate..."
11. What is evident from the above is that the proposed
transplantations are in the vicinity of multi-storied residential
group housing societies and institutional lands. The
beneficiaries will be the residents of that area, who will
suddenly have lush green neighbourhood in a few weeks post
transplantation, in lieu of the otherwise barren lands, which they
may have witnessed for years.
12.The learned ASC for the respondent submits, upon instructions,
that the Tree Officer will supervise the transplantation of the
trees.
13.The petition is disposed-off in terms of the above.
NAJMI WAZIRI, J
JULY 29, 2022/rd/ss
Signature Not Verified
Digitally Signed By:KAMLESH
Signing Date:29.07.2022
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