The Genesis Of This Writ Petition ... vs Division Of The
2022 Latest Caselaw 1 Sikkim

             THE HIGH COURT OF SIKKIM : GANGTOK
                               (Civil Extraordinary Jurisdiction)

                               DATED : 10th JANUARY, 2022
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
                 THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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                                 WP(PIL) No.04 of 2020
                 In Re : Recent Felling of Trees in Gangtok
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          Appearance
              Mr. Jorgay Namka, Advocate as Amicus Curiae.

              Ms. Yeshi Wangmo Rinchhen, Government Advocate for the State-
              Respondent No.1 (The State of Sikkim through the Chief
              Secretary).

              Ms. Yeshi Wangmo Rinchhen, Government Advocate with Ms. Rita
              Sharma, Advocate for State-Respondent No.2 (The Forest,
              Environment and Wildlife Management Department, Government
              of Sikkim).

              Mr. Karma Thinlay, Central Government Counsel for Respondent
              No.3 (The Union of India through Ministry of Road, Transport and
              Highways).

              Mr. Karma Thinlay, Central Government Counsel for Respondents
              No.4 (The National Highways & Infrastructure Development
              Corporation Limited).

              Mr. Karma Thinlay, Central Government Counsel for Respondents
              No.5 (The Ministry of Environment, Forest and Climate Change).

              Ms. Yeshi Wangmo Rinchhen, Government Advocate for State-
              Respondent No.6 (The Urban Development and Housing
              Department, Government of Sikkim).

              Dr. (Ms.) Doma T. Bhutia, Advocate for Respondent No.7
              (Gangtok Smart City Development Limited).
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                                    JUDGMENT

Meenakshi Madan Rai, J.

"Trees are Poems that the Earth writes upon the Sky"

- Kahlil Gibran

1. The genesis of this Writ Petition (PIL) lies in a letter

petition dated 08-06-2020. The Petitioner, Kailash Pradhan, an

In Re : Recent Felling of Trees in Gangtok

Architect from Sikkim, being deeply troubled by the callous way

that the trees in the city were being felled, averred that besides

providing clean air, stabilising climate, binding soil and supporting

other forms of biodiversity, trees are an intangible part of the

collective memories of the residents, and give meaning to

everyday urban existence. That, he was aware that the trees are

required to be cleared for essential human activity and that the

felled trees could not be resurrected, however, the Government

could be made to acknowledge that trees are important and ought

to be valued and saved. That, felling should be only for a good

purpose after rendering serious consideration. Besides, the general

public were not made aware of a plan of widening the National

Highway for which the trees were being felled. That, the merits of

a plan that warranted felling so many trees required questioning.

That, the Government had justified their action by stating that for

every felled tree 10 (ten) trees would be planted in another

location, but for city dwellers the trees in the city cannot be

compared to those in a forest. Hence, the prayer that this Court

recognise the gravity of what is at stake and to do what is best for

Gangtok and its citizens.

2. Besides the Respondent No.1 (The State of Sikkim

through the Chief Secretary); Respondent No.2 (The Forest,

Environment and Wildlife Management Department, Government of

Sikkim); Respondent No.3 (The Union of India through Ministry of

Road, Transport and Highways) and Respondent No.4 (National

Highways and Infrastructure Development Corporation Limited);

the Ministry of Environment, Forest and Climate Change, was

arrayed as Respondent No.5 vide Order dated 23-06-2020. On the

In Re : Recent Felling of Trees in Gangtok

submissions of Learned Advocate General, the Urban Development

and Housing Department was impleaded as Respondent No.6, while

on the submissions of the Learned Amicus Curiae, the Gangtok

Smart City Development Limited was impleaded as Respondent

No.7 vide Order dated 29-06-2020.

3. Learned Amicus Curiae submitted that after

interactions with the Petitioner, retired Forest Officials, Architects

of the town and other local persons certain suggestions were put

forth which were brought to the notice of the Court. That, the

Respondent No.2 was duty bound to get clearance for the felling of

trees from the Central Government which the concerned Officers

deliberately bypassed as no clearance would have been granted by

the Central Government. That, the Respondent No.2 is to look

into the interest and to protect the indiscriminate felling of trees

which are young and healthy despite adverse public opinion.

Reference was made by the Learned Amicus Curiae to the Royal

Parks, a charity created in London, United Kingdom, to support and

manage 5000 acres of Royal Park land across London. Reference

was also made to efforts worldwide and pledges by different

countries to plant trees. It was urged that trees have to be saved

and the protection of the environment be given priority.

4. Learned Counsel for the Respondent No.2 while

attempting to convince this Court that all relevant Rules had been

complied with by the Department, referred to the Report dated 27-

06-2020 and submitted that on receipt of an application dated 19-

03-2019 from the Nodal Officer of the Respondent No.7 under Rule

4 of the Sikkim Private and Other Non-Forest Lands Tree Felling

Rules, 2006 (for short, the ―Rules of 2006‖), requesting felling of

In Re : Recent Felling of Trees in Gangtok

trees to improve the 9 (nine) Junctions in line with the Gangtok

Smart City proposal, i.e., (a) Zero Point Junction; (b) Development

Area Junction; (c) High Court Junction; (d) Hospital Dara Junction;

(e) Ganju Lama Dwar Junction; (f) Smoke Test Junction; (g) Amdo

Golai Junction; (h) Sikkim Jewels Junction; and (i) CRH (Manipal)

Junction, the Joint Director, East Territorial Division of the

Respondent No.2, on 05-09-2019, in terms of the process provided

under the Rules of 2006, directed the Range Officer (T), Gangtok

Territorial Range, to coordinate with the Nodal Officer of the

Respondent No.7. The Range Officer submitted a Report dated 15-

10-2019 after site verification of three Junctions, i.e., Zero Point

Junction, Development Area Junction (I, II and III) and High Court

Junction, identifying 121 (one hundred and twenty one) numbers

of trees of different species and BHG, viz., 64 (sixty four) number

of poles (trees with smaller girth and less height) and 147 (one

hundred and forty seven) number of plants for removal for the said

three Junctions in due consideration of Rules 4, 5, 6, 7 and 8 of the

Rules of 2006. That, on this Report the Joint Director of the

Respondent No.2 vide letter dated 22-10-2019 prepared a

Compensatory Afforestation Management Plan, amounting to

Rs.4,70,879/- (Rupees four lakhs, seventy thousand, eight

hundred and seventy nine) only, under the Rules of 2006 and sent

it to the Conservator of Forest. On 13-12-2019, the proposal for

felling of 121 (one hundred and twenty one) numbers of trees,

removal of 64 (sixty four) number of poles and 147 (one hundred

and forty seven) numbers of plants, was approved by the

concerned Minister. Following this approval, the felling of the trees

and removal of poles and plants were ordered by the Respondent

In Re : Recent Felling of Trees in Gangtok

No.2 on receipt of payment of Rs.4,70,879/- (Rupees four lakhs,

seventy thousand, eight hundred and seventy nine) only, from the

Respondent No.7, on 20-01-2020, on which day the trees identified

were also hammer marked. Auction Notice was issued on the

same date for 121 (one hundred and twenty one) trees and 64

(sixty four) poles with the offset price of Rs.7,66,183/- (Rupees

seven lakhs, sixty six thousand, one hundred and eighty three)

only, and one K. B. Gurung who offered the highest bid of

Rs.7,67,900/- (Rupees seven lakhs, sixty seven thousand and nine

hundred) only, was handed over the trees and poles. As per the

Compensatory Afforestation Plan the Respondent No.7 will have to

plant 1210 (one thousand and ten) tree saplings at locations

identified by the Respondent No.2. The attention of this Court was

invited to the Report dated 27-06-2020, the Smart Cities Mission

Statement & Guidelines and the communication and Rules referred

to hereinabove along with approval orders of felling of trees, bid

documents, etc. Learned Counsel urged that there had been active

application of mind by the Respondent No.2 to ensure that the

barest minimum trees were felled and the Principal Secretary-cum-

PCCF in his Note pointed out that the felling had to be minimized.

5. It was next contended that in another Report dated 15-

07-2020 of the Respondent No.2 that the 2 (two) Junctions, i.e.,

Development Area Junction and the High Court Junction, were, vide

Notification dated 07-11-1985, declared notified Green Belt Areas

within the Gangtok town. Vide Notification dated 29-01-2018

(Denotification Notification) the majority of the area of the three

Junctions, i.e., Zero Point Junction, High Court Junction and

Development Area Junction, were denotified and excluded from the

In Re : Recent Felling of Trees in Gangtok

Green Belt Area. The Denotification process was carried out and

conducted by the Respondent No.6. That, while the Notification of

Green Belt is a matter of policy in given circumstances it is possible

for the Government to decide Denotification as well. That, the

Hon'ble Supreme Court in T. N. Godavarman Thirumulpad vs. Union of

India and Others has held that the term ―forest land‖ occurring in

Section 2 of the Forest (Conservation) Act, 1980 (which does not

contain any definition of the term ―forest land‖) will not only

include (a) ‗Forest' as understood in the dictionary sense; but also

(b) any area recorded as forest in the Government record

irrespective of ownership. That, in light of this pronouncement, a

few acres around a traffic junction would not qualify as a ‗Forest'

nor can it be treated or equated to ‗Forest' or ―forest land‖. It was

further urged that most of the trees to be removed were

Cryptomeria japonica (Dhupi) and Alnus nepalensis (Uttis). That,

the ‗Dhupi' is known to suppress indigenous undergrowth,

adversely affecting biodiversity, leading to increased surface run-

off and soil erosion. It was also clarified that the Rules do not

provide for any process or procedure to be followed for Auction of

the trees felled under the rules and the Department has followed

precedents and issued Notice for public Auction. In the instant

matter, due to the non-availability of Experts and machineries for

felling of trees, the trees were disposed of through open Auction in

its standing form and the felling was carried out by the successful

bidder. That, after the civil work is completed in the project sites

of the Smart City at three Junctions identified, herbs and shrubs of

aesthetic importance will be planted in the first few rows from the

(1997) 2 SCC 267

In Re : Recent Felling of Trees in Gangtok

road as avenue plantation to prevent threat to life and moving

vehicles. Small to medium size trees with high air Pollution

Tolerance Index (APTI), fast growing, high oxygen releasing and

high dust accumulating species will be planted around the Project

affected area. The work would be executed by the East Territorial

Division of the Respondent No.2, as per approved plan, hence the

stay ordered by this Court vide Orders dated 29-06-2020 and 17-

07-2020 be vacated.

6. Learned Counsel for the Respondent No.7 while

referring to its Report dated 15-07-2020 sought to explain the

aims and objectives of the Smart City Mission. That, feedback was

sought from the various stakeholders for Gangtok Smart City

proposal by holding consultative meetings with elected

representatives and three rounds of consultation were done in the

Area Based Development (ABD) wherein various aspects were

explained to citizens in a simplified manner to enable them to

understand the concepts. Their opinions were sought in the

consultative process. That, the major issues brought out by

citizens after three consultative meetings through direct or indirect

participation pertained to water supply, street lights, inadequate

road infrastructure, lack of public transport, traffic congestion,

indifference to mobility of differently-abled person, lack of

footpaths and pedestrian connection. These issues are sought to

be addressed by the Mission Document of Smart City Gangtok.

The felling of trees at the Zero Point Junction, Development Area

Junction and High Court Junction fall in the allotment of the

proposed widening of the road and shifting of the footpath.

Thereafter, necessary steps have been taken for felling of the trees

In Re : Recent Felling of Trees in Gangtok

in tandem with the Respondent No.2. That, the project has

considered the aspect of sustainable development and the Detailed

Project Report has been prepared by the experts based on

sustainable development and larger public interest without

compromising on environmental issues. Learned Counsel has

relied Narmada Bachao Andolan vs. Union of India and Others2; Balco

Employees' Union (Regd.) vs. Union of India and Others3 and Research

Foundation for Science Technology and Natural Resource Policy vs.

Union of India and Others , in support of her submissions.

7. Learned Counsel for the Respondent No.6 while

pointing out to its Report dated 18-08-2020, by and large

reiterated the arguments advanced by the Learned Counsel of the

Respondent No.2 and Respondent No.7 and had no specific

independent point to emphasis.

8. Learned Counsel for the Respondent No.5 for his part

referred to Section 2 of the Forest (Conservation) Act, 1980 and

the ratio of the Supreme Court in T. N. Godavarman Thirumulpad

(supra). That, the Supreme Court in Samatha vs. State of A.P. and

Others had observed that a large wooded area having a thick

growth of trees and plants, the trees in such an area, resembling a

large wooded area, especially in density, was a forest. That, the

areas where the trees were felled and are to be felled, considering

the density of trees could well be considered forest areas. That, the

Government of Sikkim vide its letter dated 15-07-2020 informed

the Respondent No.5 that no permission was sought for felling of

trees from them as the status of land where the trees are felled, as

(2000) 10 SCC 664

(2002) 2 SCC 333

(2007) 15 SCC 193

(1997) 8 SCC 191

In Re : Recent Felling of Trees in Gangtok

per cadastral records is a ―Government land‖ and not a ―Forest

land‖. That, Article 48A of the Constitution of India however

mandates that it is the duty of the State to protect and improve

the environment and safeguard forest and wildlife which the State

Government ought to have given due consideration. That, the

State Government is to comply with the doctrine of sustainable

development to maintain ecological balance as held by the Hon'ble

Supreme Court in Indian Council for Enviro-Legal Action vs. Union of

India and Others . Learned Counsel also drew strength from the

ratiocinations in M. C. Mehta vs. Union of India7; N. D. Jayal and

Another vs. Union of India and Others8; State of NCT of Delhi and

Another vs. Sanjeev alias Bitto9 and Lafarge Umiam Mining Private

Limited vs. Union of India and Others10.

9. On 13-11-2020, Respondents No.1, 2 and 6 filed

written submissions on behalf of the Learned Advocate General to

bring on record certain materials that would be essential to

contextualise the present issues and its adjudication.

10. An additional Report dated 14-09-2021 was filed by the

Respondents No.2 and 6 jointly placing on record certain pages

which were missing in the earlier Reports.

11. On 22-09-2021 another Report was placed by the

Respondent No.7 to queries raised by this Court, vide its Order

dated 15-09-2021.

(1996) 5 SCC 281

(1996) 4 SCC 351

(2004) 9 SCC 362

(2005) 5 SCC 181

(2011) 7 SCC 338

In Re : Recent Felling of Trees in Gangtok

12. On 25-10-2021, the Respondent No.7 filed a Joint

Inspection Report carried out with the Respondent No.2 in

compliance to the Order of this Court dated 24-09-2021.

13. On 17-11-2021 a Report on behalf of the Respondents

No.1, 2 and 6 was again filed informing that with regard to the

remaining 6 (six) Junctions that were identified for extension, the

Respondent No.2 has received fresh applications from the

Respondent No.7, dated 18-10-2021, for felling of trees in the

remaining 6 (six) Junctions which also includes the Development

Area Junction. That, fresh trees proposed to be felled in these

Junctions are independent of the previously mentioned 121 (one

hundred and twenty one) trees. That, the applications have been

filed as per the Rules of 2006 and hence, the total number of trees

that are proposed to be felled have now added up to 163 (one

hundred and sixty three). That, the applications are under

consideration of Respondent No.2 and the process under law will

be scrupulously followed after a decision is taken.

14. Learned Counsel for the parties were heard at length

on 06-12-2021 and 07-12-2021. The Learned Advocate General

who was representing the Respondents No.1, 2 and 6 remained

absent and the Learned Government Advocate made submissions

in his stead. All the Reports filed by the parties have been duly

perused by us and due consideration afforded to the verbal

submissions.

15. The core question for consideration is whether the

administrative decisions were tainted by illegality, irrationality or

procedural impropriety.

In Re : Recent Felling of Trees in Gangtok

16(i). Before dealing with the merits of the matter, it is

apposite to cite a Poem which poignantly comes to mind, On Killing

a Tree, by Gieve Patel. The poem is relevantly reproduced

hereinbelow;

"On Killing a Tree It takes much time to kill a tree, Not a simple jab of the knife Will do it. It has grown Slowly consuming the earth, Rising out of it, feeding Upon its crust, absorbing Years of sunlight, air, water, And out of its leprous hide Sprouting leaves.

So hack and chop But this alone won't do it.

Not so much pain will do it.

The bleeding bark will heal And from close to the ground Will rise curled green twigs, Miniature boughs Which if unchecked will expand again To former size No, The root is to be pulled out --

Out of the anchoring earth;

It is to be roped, tied, And pulled out -- snapped out Or pulled out entirely, Out from the earth-cave, And the strength of the tree exposed The source, white and wet, The most sensitive, hidden For years inside the earth.

Then the matter Of scorching and choking In sun and air, Browning, hardening, Twisting, withering, And then it is done.

GIEVE PATEL"

(ii) The theme of the poem is a confrontation between two

different attitudes, saving and cutting a tree. It is a tirade against

the practice of felling a tree. The poem describes the growth of a

tree, the years of consumption of the earth, absorption of sunlight,

air, water and nutrients from the soil to grow into a mature tree

In Re : Recent Felling of Trees in Gangtok

and the pain on its destruction. The poem makes an implied plea

to maintain an ecological balance. The poem is extracted herein

merely to sensitize us into the effort that goes into growing one

tree. We may also look at a poem by Maya Angelou ―When Great

Trees Fall‖ which is rich in its ecological perspective, as also

―Planting a Tree‖ by Joyce Kilmer which praises the planter, these

are not being extracted herein to prevent prolixity. It is the

visionary planters and foresters of the erstwhile Kingdom of Sikkim

who had planted these trees which have been ruthlessly felled,

these trees had stoically assisted the ecological balance thus far

and stood witness to history unfolding in this State. It is indeed

the bounden duty of every citizen to be sensitised about such

matters and to ensure that each of us play an active role in

ensuring the protection of a tree and to fell it only when no other

option remains. Every effort should be made to construct

alongside the tree or around it and to prioritise saving it.

17. The specific argument of the Respondent No.2 has

been that the areas where the trees are felled is not ‗Forest' as

defined by the Supreme Court in T. N. Godavarman Thirumulpad

(supra) indeed this may be true, but due attention must be paid to

the fact that deforestation is an environmental issue and the

continuous felling of trees illicit or otherwise has impacted the

environment worldwide in terms of water cycle, soil quality,

biodiversity and other environmental issues. The value of a forest,

nay, a single tree and its utility cannot be over-emphasized.

18(i). Coming to the case at hand, specific procedure has

been laid down for felling of trees under the Rules of 2006 while in

the Sikkim Forests, Water Courses and Road Reserve Preservation

In Re : Recent Felling of Trees in Gangtok

and Protection Act, 1988, ‗forest' and ―forest land‖ are defined

under Sections 2(b) and 2(c) respectively, which are as follows;

"(b) ―forest‖ means an extensive tract of land covered with trees and undergrowth, sometime intermingled with pastures, alpine scrubs;

(c) ―forest land‖ means the land shown as forest land in the records of right including areas under perpetual snow, alpine scrubs or alpine pasture or the land declared as forest land by the Government, by notification;"

(ii) The areas where the trees were felled or proposed to

be felled are not an exclusive tract of ―forest land‖ nor reflected as

‗forest' in the Revenue Records or notified by the Government as

such. It also does not fall within the specifics of any of the criteria

laid down in the definition of the Sikkim Forests, Water Courses

and Road Reserve Preservation and Protection Act, 1988. Hence,

we are satisfied that the areas in which the trees have already

been felled or are proposed to be felled do not fall under the

definition of ‗Forest'. Nevertheless, it must be borne in mind that

such a circumstance does not license anyone to carry out

haphazard deforestation. That having been said, the Rules of 2006

is to be invoked whenever trees are felled in non-forest land. The

documents on record establish that Rules 4, 5, 6, 7 and 8 of the

2006 Rules although not complied with to the letter, have been

adequately complied with by the Respondent No.2. Annexure R-2

(collectively), a letter addressed to the Respondent No.2 by the

Respondent No.7, filed by the Respondent No.2 along with the

Affidavit dated 27-06-2020, also indicates satisfactory compliance.

19. Admittedly, the Rules of 2006 do not provide for any

process or procedure for Auction of the trees felled. However,

In Re : Recent Felling of Trees in Gangtok

precedence for such Auction was followed by the Respondent No.2

inasmuch as it is stated that-

 A Forest Officer not below the rank of Range Officer determines the offset value of the standing trees as per notified volume table and the notified rate of timber/firewood.

 After determination of the offset price, the Forest Officer issues notice for open public Auction and publishes it in the notice board of the Range Office, Division Office or in the Office of the Assistant Conservator of Forest or any other place as he deems fit mentioning the date and time of Auction and details of crop.

 People interested in taking part in the Auction may inspect standing trees and ensure their satisfaction.

 Thereafter, open bidding is carried out on the day and time as per Auction Notice. At least 3 (three) bidders must be present for the Auction to be conducted. If 3 (three) bidders do not turn up, the Auction is cancelled and a new date for the Auction is published.

 If there are 3 (three) or more bidders, the bidding is carried out for different rounds and the highest bidder is considered.

 All the bidders shall sign the bid paper along with the Auction conducting Officer (generally Range Officer).

 The highest bidder shall deposit the bid amount in the dedicated head on accounts of the Government and take possession of the trees.

 Apart from the bid amount, the bidder will have to deposit 18% GST.

 The felling cost or transportation cost shall be entirely borne by the bidder.

In Re : Recent Felling of Trees in Gangtok

20. Although the documents on record indicate issuance of

Notice of Auction and steps taken pursuant thereto in terms of

what has been extracted hereinabove, however, we are dissatisfied

with the issuance of the Auction Notice being put up only in the

Notice Board of the Respondent No.2. Forest wealth belongs not

only to the Department and the few persons who may have to

access to such Notice, on them visiting the Forest Department, but

should be widely advertised to ensure that the best value is

obtained for the felled tree(s) and not reserved for a favoured few.

21. That having been said, from a perusal of the

documents relied on by the Respondent No.7, we are satisfied that

the necessary consultative process was carried out by the

Government with all stakeholders including the public at large.

22. It is relevant to reiterate that development must go

hand in hand with the preservation of the forests. In other words,

there must be sustainable development. Vide Order of this Court

dated 29-06-2020, we have already reflected that we deem it

imperative to record that sustainable development is development

that meets the needs of the present generation without

compromising on the ability of future generations to meet their

own needs (see Brundtland Report). It also encompasses social

and economic progress along with climate protection. It may

relevantly be noticed that the Learned Central Government Counsel

while placing reliance on the decisions of the Hon'ble Supreme

Court in T. N. Godavarman Thirumulkpad (supra); Samatha (supra),

Lafarge Umiam Mining Private Limited (supra), had submitted that in

view of the definition of ‗Forest' given in the ratiocinations supra

and considering that the areas where the trees were felled fall

In Re : Recent Felling of Trees in Gangtok

within the ambit of such definition, the State Government had

necessarily to obtain clearance from the Ministry of Environment,

Forest and Climate Change, Government of India, in terms of

Section 2 of the Forest (Conservation) Act, 1980. That, this was

bypassed by the State Government. In the first instance, it is

worth-recording that the Respondent No.5 chose to turn a Nelson's

eye on the felling of the trees when it was going on and

subsequently woke up from its slumber only on being impleaded as

a party vide Order of this Court dated 23-06-2020. That apart, the

submissions hold no water in view of the discussions pertaining to

Forest as already elucidated hereinabove.

23. Be that as it may, we may relevantly notice that the

Supreme Court while elucidating the concept of sustainable

development which all States should endeavour to adhere to as an

integral part of ‗life' under Article 21 of the Constitution of India,

in N. D. Jayal (supra) observed as follows;

"22. Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens' Welfare Forum v. Union of India [(1996) 5 SCC 647] and in M.C. Mehta v. Union of India [(2002) 4 SCC 356] it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of "sustainable development". This is a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environment-related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development without which life of the coming generations will be in jeopardy.

23. .........................................................

24. .........................................................

25. Therefore, the adherence to sustainable development principle is a sine qua non for the

In Re : Recent Felling of Trees in Gangtok

maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to "sustainable development" cannot be singled out. Therefore, the concept of ―sustainable development‖ is to be treated as an integral part of ―life‖ under Article 21. ..................................."

[emphasis supplied]

24. Compensatory Plantation is the next point that needs

to be addressed. On this count, it is necessary to refer to the

letter dated 12-10-2021 addressed to the Divisional Forest Officer,

Territorial (East) of the Respondent No.2, by the Chief Executive

Officer of the Respondent No.7 (Annexure R-1, Page 1170, Paper

Book IV) wherein the Respondent No.2 has been informed that 76

(seventy six) number of trees and 34 (thirty four) numbers of Poles

have already been felled although request had been made for

felling of 121 (one hundred and twenty one) number of trees and

64 (sixty four) numbers of poles at Zero Point Junction,

Development Area Junction and High Court Junction. That, there is

no further requirement for felling of trees at these Junctions as the

improvement of the Junctions were re-designed so as to minimize

the felling of trees during the construction phase. We cannot but

applaud this step taken by the Respondent No.7. At the same

time, it is worth remarking that we are appalled by the proposal of

Compensatory Plantation placed before us in the Affidavit dated

15-07-2020 of the Respondent No.2 wherein a proposal is placed

for replacing the trees felled with bushes and shrubs. This does

not tantamount to Compensatory Plantation but is eyewash. The

Respondent No.2 necessarily ought to replace the felled trees by

planting trees of equivalent value and other relevant ecological

factors. Surely a felled tree cannot be replaced by shrubs or

bushes, it has to be replaced by a tree.

In Re : Recent Felling of Trees in Gangtok

25. That apart, this Court is indeed conscious and aware of

the scope of judicial review without being reminded by the

Respondent No.2 and Respondent No.7, in their averments of the

ambit of judicial review. At the same time, it is worth-reminding

all concerned that the Court has a duty to see that in the

undertaking of a policy decision no law is violated and the

fundamental rights of the public are not transgressed upon except

to the extent permissible under the Constitution of India. This

obviously is the only area in which this Court is examining the

instant Writ Petition.

26. From the discussions hereinabove as already noticed

there is no specific written policy for Auction of felled trees which

ought to include Notice to the general public published in a daily

newspaper, both in English and in the Nepali vernacular, for at

least 3 (three) consecutive days. Let the Forest Department,

Respondent No.2,

(i) immediately develop policy guidelines which shall govern decision making with respect to the Auction of felled trees. This shall not be later than 3 (three) months from today.

(ii) Eco-sensitive areas shall be given due consideration when felling of trees are unavoidable, imperative and are proposed.

(iii) No tree or pole shall be unnecessarily felled for the personal enrichment of any person.

(iv) Need based felling of identified trees in the 6 (six) remaining Junctions under the Gangtok Smart City Project may be carried out subject to strict and meticulous compliance of the relevant Rules. Due application of mind by the concerned Officers indicating

In Re : Recent Felling of Trees in Gangtok

compliance to the letter of the Rules by the concerned Officers must be reflected in their notes and orders.

(v) Once the trees have been felled in the 9 (nine) Junctions, so far as safety allows there shall be avenue plantation of trees. In the event of impossibility of tree plantation in any area, keeping in mind the geographical terrain, then shrubs are necessarily to be planted.

(vi) The construction of the footpaths shall be made around the trees wherever possible duly bearing in mind the decision of the Hon'ble Supreme Court in Rajive Raturi

vs. Union of India and Others and taking into consideration the movement of physically challenged persons in Wheelchairs and of the visually challenged, on the footpaths.

(vii) Afforestation in these areas shall be carried out as undertaken immediately on completion of the civil works in the Gangtok Smart City Project, viz., in Zero Point Junction, Development Area Junction and High Court Junction.

(viii) The Respondent No.2 in its Report dated 22-06-2020 has stated that a plan with detailed estimates for Compensatory Afforestation has been prepared and the location for Compensatory Plantation identified. The locations have not been disclosed. The Respondent No.2 shall disclose the location to the Petitioner and the Learned Amicus Curiae within a month from today and carry out Compensatory Plantation within a period of 1 (one) year from today.

(ix) Wherever trees have been felled Compensatory Plantation shall be done by planting of trees, viz.; Rani Champ (Michelia excelsa), Pipli (Symingtonia populnea), Buk (Quercus lamellosa), Badrasay (Elaeocarpus sikkimensis), Tooni (Toona ciliata), Pumsi

(2018) 2 SCC 413

In Re : Recent Felling of Trees in Gangtok

(Machilus edulis), Arupatay (Prunus nepalensis), Kawlo (Machilus spp.) and Katus (Castonopsis spp.) [these trees are reflected in the Report of the Respondent No.2].

(x) A Committee comprising of 3 (three) senior department Officers of the rank of Conservator of Forest and above shall overlook the Project of Compensatory Afforestation. The composition of the Committee shall be informed to the Petitioner and the Learned Amicus Curiae within a month from today. The Committee shall ensure that every tree felled is compensated by 10 (ten) saplings as undertaken by the Respondent No.2.

(xi) We make it clear that should the Compensatory re-

plantation not be completed within the period specified above, the Petitioner is at liberty to approach this Court.

(xii) Strict compliance be made by all the Respondents to the observations of the Supreme Court in M. C. Mehta vs. Union of India and Others12, in that, the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of ―sustainable development‖. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environment-related developmental activities should benefit more people while maintaining the environmental balance.

27. The stay ordered by this Court vide Order dated 29-06-

2020 wherein the State Government was directed not to fell any

further trees whatsoever, either in Zero Point Junction,

(2002) 4 SCC 356

In Re : Recent Felling of Trees in Gangtok

Development Area Junction or High Court Junction or in the

remaining 6 (six) venues as listed in Report dated 27-06-2020 of

the Respondent No.2 and also Order dated 17-07-2020 by

inserting the words ―till further orders of this Court‖, stand vacated

with the hope and trust that all concerned Authorities shall stay

their hands from unnecessary felling of trees under the Smart City

Project.

28. With these directions, the Writ Petition is disposed of.

Interim Application(s), if any, also stand disposed of.

        ( Bhaskar Raj Pradhan )                         ( Meenakshi Madan Rai )
               Judge                                           Judge
                   10-01-2022                                         10-01-2022




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