The Delhi High Court recently set aside the guidelines permitting regular pruning of tree branches with girth up to 15.7 cms without prior permission and also directed that no trimming would be permitted except in accordance with the law. A single bench of Justice Najmi Waziri passed this order while hearing a petition filed by Professor Dr Sanjeev Bagai and others regarding the improper pruning or lopping off of approximately 800 trees in Vasant Vihar, South Delhi.
The petition challenged the January 19, 2023, order passed by the National Green Tribunal. Vivek Sibal, the senior advocate appearing for the petitioners, sought directions apropos the procedure adopted for pruning of trees under the Delhi Preservation of Trees Act, 1994, (DPT Act) and the guidelines for pruning of trees dated October 1, 2019. He said that the impugned order permitting pruning of trees on the basis of the guidelines is erroneous because such pruning is permitted without prior approval of and without even a site inspection or assessment of the tree(s) concerned by the relevant authority, namely, the tree officer/deputy conservator of forests. The guidelines and the impugned order permit private parties/entities to prune trees even on land owned by the government (MCD, DDA and PWD).
The Court noted that Section 8 of the DPT Act prohibits felling of trees in Delhi, except by express prior permission of the tree officer. Under the Act, permission for felling, cutting or removal of the trees is granted by the tree officer on an application made under Section 9 of the Act. The said Section stipulates that permission would not be refused in the six circumstances enumerated therein. The grant of permission envisages the examination of (i) the trees at the site i.e. obtaining a prior view; (ii) assessing the overall and specific situation obtained at the site and thereafter (iii) application of mind by the tree officer. In effect, for each such permission/application, a proper assessment would need to be carried out at the site.
The Court further noted that, currently, application for such felling of trees is made in accordance with Rule 4 of the guidelines. The format prescribed in Form-B requires the applicant to specify for each tree which is sought to be felled—(i) its girth measured at a height of 1.35 metres from ground level; (ii) the intended use of felled trees; (iii) the purpose of land after felling of trees; and (iv) appreciation of the species-wise number of trees existing at the site, among others.
The Court said there may be occasions where rare species of trees may be sought to be felled. The more solitary a tree, the greater its significance. Therefore, the responsibility of protecting and nurturing the solitary tree is far greater upon the tree officer and the authorities concerned. The Court further observed that a tree is a living being and it must be given, at least a “last look” and accorded a final inspection before a decision is taken to permit its felling or sanctioning extensive amputation of its live branches.
Since Section 9(2) of the Act mandates upon the tree officer to inspect the tree and conduct an enquiry as may be requisite, a visit to the site is imperative for assessing the situation comprehensively. Section 33 of the Act gives powers to the government to give directions, general or special, to the tree officers and other officers, regarding the discharge of their functions and for effectively carrying out actions in support of the objectives of the Act.
Justice Waziri said the guidelines for pruning of trees are essentially an informal administrative handbook to assist the officers of the Department of Forests and Wildlife. They are not a part of any statute. They do not carry a statutory flavour or character. The sole objective of the DPT Act is preservation of trees. The granting of permission for cutting, girdling, lopping, pollarding, etc., of trees is to be strictly regulated and such permission is not to be granted for the asking. Yet the guidelines permit cutting/pruning of branches of trees having a girth/circumference up to 15.7 cms.
The Court also wondered as to how did this figure come about? What is the scientific basis for reaching that figure? What is the justification for applying the same thickness of branches to all species of trees in Delhi? Some trees may have slim trunk girth. For such specific species, and otherwise too, the entire tree could well be wantonly pruned to reduce to a mere pole-like structure, as has been done to some trees in this case.
The Court asked how can there be a justification for such pruning? These are glaring examples of misuse of the generous permission granted under the guidelines to prune trees/tree branches having a girth up to 15.7 cms. The bench observed that had the tree officer been accorded an occasion to inspect these trees before they were pruned, perhaps the hapless trees would not have suffered their current fate. Was it examined or ascertained by the tree officer, or for that matter, by any authority, whether the branches of the many trees which were pruned, were dead, diseased, dying, split, broken or constituted a threat to life or property or obstructed traffic? Was it ascertained whether the extensive and possibly indiscriminate, cutting of branches with “live foliage” would not adversely affect the health of the trees? Was it examined, ascertained or estimated that the trees had been or could be over-pruned? If the answer to the last question is in the affirmative, then the sequitur dangers that would afflict the health and life of the fully-grown trees should have been minimized. Was it inspected if there was concretization around the tree-trunk, which could be affecting or had compromised their health and stability; therefore, the pruning of such trees would neither be advisable nor prudent? The answer to all these fundamental and relevant questions is in the negative. The guidelines ride roughshod over all these concerns and grant a general permission for the pruning of tree branches having a girth of up to 15.7 cms.
The Court further observed that the occasion for the tree officer to inspect or assess the health of the trees, the necessity or justification for pruning has been sought to be scuttled and taken away by the guidelines. What is the scientific methodology employed to measure that the pruning was done only up to a girth 15.7 cms and not beyond, is not known or specified. Evidently, it is a mere guesswork. An estimation. The guidelines are not a statutory enactment or an amendment of the statute. They cannot abridge the mandate of the statute. Even a regulation or rule, which are creatures of a statute, cannot limit, undo or transgress the powers, objective and mandate of the statute itself.
The Court said that under the Act there is no sanction for the 15.7-cm girth of a tree branch to be cut. Therefore, this figure is incongruous with the statutory requirements as mandated under Sections 8 and 9 of the DPT Act. The so-called permission granted under the guidelines seek to overreach the statute. The guidelines are in conflict with the DPT Act, they are arbitrary and illegal.
The court further observed that the permission for pruning, presumed to be or granted under the guidelines would be of no consequence and shall always be non est. Therefore, the guidelines permitting regular pruning of branches of trees with girth up to 15.7 cms without specific prior permission of the tree officer are hereby set aside. The only permission that can be granted for pruning, etc., is under Section 9 of the Act. In view of the above, no pruning of trees will be permitted in Delhi, except in accordance with the DPT Act.
Due to ever increasing population in the National Capital Territory of Delhi, the need for accommodating a large number of people has forced the private as well as government agencies to construct more and more residential as well as commercial complexes. As a result, the forest area in and around the National Capital Territory of Delhi is declining. The trees are being axed indiscriminately either to pave way for residential or commercial complexes or for widening of roads for free flow of increasing traffic. The declining forest area, urbanisation of rural belts and widening of roads have been affecting the environment very badly. In order to safeguard the forest area and to provide for the preservation of trees, the Delhi Preservation of Trees Bill was introduced in the legislative assembly. The Bill was later passed by the assembly and received its assent on October 12, 1994.
The Preservation of Tree Act is a crucial piece of legislation that has been enacted by several states in India to protect and restore the country’s forests. The Act aims to ensure that trees are not unnecessarily cut down and the felling of trees is only allowed under specific circumstances. According to the Act, permission to cut trees can only be granted by the relevant authorities, such as the forest department or local administration after a thorough evaluation. The Act also mandates that individuals and companies must plant an equivalent number of trees that are being felled, ensuring that the country’s green cover is not impacted. The Act also aims to prevent any action that might harm the growth or regeneration of trees. As per the Act, a tree is defined as any woody plant that has branches supported by a trunk or body of at least five cms diameter and is at least one metre high from the ground level.
—By Adarsh Kumar and India Legal Bureau