Legislations geared towards environmental concerns and goals are essential to ensure sustainable development, especially since the right to a clean environment has been recognised as a fundamental right by the Honourable Supreme Court, under Article 21 of the constitution.

As of 2022, the number of trees being felled every hour in Delhi, approximately, went up from 1 in 2019 to at least 3.1 Legislations such as the Delhi Preservation of Trees Act, 19942 (herein after "the Act") have thus become the need of the hour.

The Act penalises any kind of damage caused to 'trees' or 'forest produce' in the national capital territory, either on private or public property, without due authorisation from a 'tree officer' appointed under it. The argument is one can own a land, but not the environment around it. However, one controversial question which often arises here is the applicability of this Act with regard to activities that are essential to the development and general upkeep of trees and surrounding areas, and whether such activities like 'pruning' of trees fall within the ambit of the Act or not.

PROCEDURE UNDER THE DELHI PRESERVATION OF TREES ACT, 1994

Section 2(i) of the Act defines "trees" as any woody plant whose branches spring from and are supported upon a trunk or body not less than five centimeters in diameter, and at least one meter high from the ground level. The parameter for qualification as a tree itself is thus very low so as to give effect to the intention of the legislation. The Act further entails, under Section 3, that the ggovernment create a 'Tree Authority' which is tasked primarily with the preservation of all the trees within its jurisdiction, among other responsibilities. It also envisions the appointment of tree officers, under Section 5 of the Act. Tree officers are public servants entrusted with wide powers under the Act, including the power to arrest without warrant, persons committing offences, under certain conditions (what are these conditions?) or even seizure of property, if there is a need. The intention again is to give effect to the abstract domain of environmental legislation and improve its applicability.

Section 8 of the Act places restriction on felling, removing or disposing of any tree or forest produce in any land, regardless of whether it is owned or occupied by the person or not, subject to prior permission of the aforementioned/appointed tree officer. The Act however, allows, felling or disposal of trees, without permission, if they pose a grave danger to life, property or traffic. In such cases, the felling must be reported to a tree officer within 24 hours.

Section 9 of the Act further lays down the due procedure for obtaining the aforementioned permission from a tree officer. An application must be made before the officer with the following details:

  1. Attested copies of documents to support ownership over the land
  2. Number and kind of trees proposed to be felled, removed or disposed
  3. Girth measure of the trees at height of 1.85m from ground level
  4. Reasons for the proposed felling, removal or disposal
  5. Copy of sajra clearly showing the site and khasra numbers of the property. A sajra is a detailed village map drawn up for legal/ administrative purposes and a khasra number is a unique number assigned to a parcel of land in rural areas, similar to plot numbers assigned in urban areas.

Following this, the officer may inspect the trees/property in question and hold any enquiry deemed necessary. The officer may then allow the application in its entirety, in part or not at all, depending on his/her independent discretion. All reasons behind the tree officer's decision are to be recorded. However, there are certain exceptions wherein an officer is not authorised to refuse permission. These exceptions include, but are not limited to the tree being dead, diseased or fallen; substantially damaged by natural causes; tree posing a danger to life or property or obstruction to traffic or if the tree is needed for any bona fide domestic uses in rural areas.

A tree officer is expected to give his/her decision within 60 days from the receipt of an application. In the absence of any such decision, it's automatically assumed that permission has been granted. The provision stipulates that permission cannot be granted to persons from the same area more than twice in a year. The area under permission is also limited to a maximum of one hectare at a time.

Lastly, the legislation also prescribes that the permission may be subject to certain conditions such as ensuring the regeneration of felled trees. This condition is further given effect to in Section 10 of the Act, where it is incumbent upon a person felling, removing or disposing of trees to plant the same number and same kind of trees elsewhere in the same area. The Act further recognises positive obligations on the part of the persons who have been issued directions under Section 9 or 10 of the act, to preserve trees and to effectively begin the process of compliance as per the directions of the tree officer, within thirty days from the date of receipt. If the prescribed actions are not complied with, a tree officer may initiate penalities.

The penalties a person or an organization can be subjected to include, fines, afforestation of a said number of trees, seizure of property on which the offending act was committed or even imprisonment.

APPLICABILITY OF DELHI PRESERVATION OF TREES ACT, 1994 TO PRUNING OF TREES

Section 2(h) of the Act lays down an inclusive definition of what it means to "fell a tree" and brings within its ambit any act which damages the tree. The fact that merely pruning a tree, which is also a common gardening practice, without permission from a tree officer, does not in itself constitute an offence was established by the Honourable Delhi High Court in Shruti Co-operative Group v Government NCT of Delhi & Another[3]. Therein the Court had referred to a circular issued by the department of forest and wildlife, Government of National Capital Territory of Delhi on August 26, 2016, which clarified that pruning of trees is not an offence as envisioned by S.2(h) of the Act, as long as it does not cause damage or lead to the death of a tree. The court in this case held that no tree offence was established since the impugned order did not indicate that the allegedly pruned trees had been permanently damaged.

On October 1, 2019, the Department of Forest and Wildlife, Government of National Capital Territory of Delhi, released Guidelines for Pruning of Trees Under Delhi Preservation of Trees Act, 1994.4 Clause 2 of these guidelines reiterated the exclusion culled out by the circular regarding pruning of trees not being inherently a tree offence. The guidelines also further define "pruning" to mean "cutting off or removing dead or living parts or branches of a tree to improve shape or growth." It further holds it to be a horticultural and silvicultural practice done for maintaining or improving tree health as well as reducing the risk of falling branches. The guidelines consistently draw a distinction between general/regular, light and heavy pruning. The distinguishing factor between the three is in terms of the girth size of the branches. Triming branches upto 15.7 cm in girth is regular pruning, between 15.7cm to 40cm is light pruning and more than that would be heavy pruning. Clause 5 of the guidelines lay down that permission need not be obtained from a tree officer for regular pruning of branches. The rationale behind this distinction, as per the forest department, is that encroachment of spaces by unpruned trees is a common issue which threatens both personal safety as well as public stability. Branches if not trimmed regularly may damage property and cause personal injury. Any tree which is regularly pruned will have branches with girth less than 15cm and since civic agencies are supposed to conduct light pruning on a daily basis, anyways, certain leeway will allow for regular upkeep.5

However, in a recent case of Dr. Sanjeev Bagai v Department of Environment, Government of NCT Delhi & Ors,[6] the honourable Delhi High court held that the aforementioned Clause 5 of the guidelines is incongruous with the statutory requirements of Sections 8 and 9 of the Act. Pruning of branches up to girth size of 15.7cm without permission of the officer is a distinction which "does not find any approval in the Act."

It further said that permitting this would essentially be a "creeping legalised genocide" of trees with the possibility of trees being reduced to mere pole like entities. The court further noted that the guidelines must be treated as only a handbook for ensuring compliance with the law. They cannot dilute the strict mandate of the statute and pruning must thus happen in accordance with the provisions of the Act.

On a separate note, the court also observed that trees must be permitted to be cut only after first having exhausted all possibilities of saving them or ensuring its transplantation and compensatory afforestation.

CONCLUSION

The Honourable Court has thus, as seen above, drawn a clear inference that regular pruning which does not cause death or damage to the "tree" is not a tree offence. However, the question which arises after the court's decision in Dr.Sanjeev Bagai is whether permission may be required from a tree officer, for conducting the pruning,each time, as the court had held that pruning must happen in accordance with the provisions of the Act.

If answer to this question is in the affirmative, it may cause certain hindrance to the regular operations of cooperative societies and civic organisations which are often required to engage in regular pruning works. However, that being said, strict application of legislations which are by their very nature abstract is also essential to ensure that these provisions actually translate into action.

Footnotes

1. 'At Least 3 Trees Felled Every Hour in Delhi in Last 3 Years: Government Data' (The Economic Times, 6 June 2022) https://economictimes.indiatimes.com/news/india/at-least-3-trees-felled-every-hour-in-delhi-in-last-3-years-government-data/articleshow/92038360.cms?from=mdr accessed 1 June 2023

2. http://forest.delhigovt.nic.in/sites/default/files/AR_DelhiPreservationofTreesAct,1994.pdf

3. 2017 SCC OnLine Del 11957

4. https://treeremoval.delhigovt.nic.in/TEMP/Pruning%20Guidelines.pdf

5. Kushagra Dixit, 'Delhi Forest Department Goes to NGT with Norms for Pruning Trees' (The Times of India, 22 January 2023) https://timesofindia.indiatimes.com/city/delhi/delhi-forest-department-goes-to-ngt-with-norms-for-pruning-trees/articleshow/97216727.cms accessed 1 June 2023

6. W.P.(C) 2317/2023; CM APPL. 8779/2023

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