Bombay HC dismisses pleas against cutting Aarey trees

A view of the Aarey Colony in Mumbai. (DH Photo)

"The greens (environmentalists) have failed," the Bombay High Court said on Friday while refusing to declare Aarey colony a forest and also declining to quash the BMC tree authority's decision allowing felling of over 2,600 trees in the green zone to set up a metro carshed.

The court imposed a cost of Rs 50,000 on Shiv Sena corporator Yashwant Jadhav, who opposed the approval given by the BMC tree authority, of which he is a member, for hacking trees in the green belt.

A division bench of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre dismissed four petitions filed by NGOs and environmental activists on issues related to Aarey colony in Goregaon, a major green lung of the metropolis.

The court termed all the petitioners as "Davids" taking on the industrial "Goliaths", apparently suggesting that they are fighting an unequal battle.

One of the pleas filed by the city-based NGO Vanshakti sought that the Aarey colony be declared a forest and ecologically sensitive zone, while another petition by green activist Zoru Bathena pleaded the area be given the status of a floodplain.

Two separate petitions were filed by Bathena and Jadhav, challenging the decision of the BMC tree authority permitting the Mumbai Metro Rail Corporation Ltd (MMRCL) to cut 2,656 trees to construct a metro carshed in Aarey colony.

While dismissing the petition filed by Vanshakti, the court in its judgment noted that the issue was already decided by an earlier bench of the high court and the matter is presently pending before the Supreme Court.

"The greens (environmentalists) fail in the instant petition because they have lost touch with the procedure to be followed as per law. The clock cannot be put back. We do not make any comments thereon as the petitioner has to now swim or sink before the Supreme Court," the court said.

While dismissing the petitions filed by Bathena and Jadhav against the approval granted by the civic body's tree authority, the bench said the greens have failed on merit.

"The tree authority's decision making process was fair, transparent and based on reason. The greens fail not on account of sailing their boats in the wrong channel but on merits," the court said.

The bench imposed a cost of Rs 50,000 on Jadhav, who is a member of the tree authority, terming his petition as "sheer voyagerism".

"It (Jadhav's plea) is sans any material and bereft of concise statements and details concerning the meeting of the tree authority held on August 29, 2019," the court said.

The court noted that there was no variation in the opinion of the members of the tree authority on the issue of whether the trees could be transplanted or had to be cut.

"There are good reasons for taking the view that the trees would not survive if transplanted and that it would be futile to spend good money to transplant the trees which ultimately would by and large die," the bench said.

The court also took note of the submission made by MMRCL counsel Ashutosh Kumbhakoni that the authority has alrea1dy planted 20,900 trees in the Sanjay Gandhi National Park.

"This establishes that about seven times the number of trees to be felled have been replaced by planting of saplings," the court said.

The court termed all the petitioners as "Davids" taking on the industrial "Goliaths".

"Relationship with nature and love for environment alone is true and all other relationships are unreal and temporary, is their (environmentalists) belief. Their hearts are a temple of devotion to flora and fauna," the court said.

"In the instant case, the Davids (environmentalists) row their boat with faith, courage and devotion in the storm of development but directionless," the bench said in its judgment dismissing the plea filed by Vanshakti.

The court also refused to accept the contentions raised by Bathena and Jadhav in their pleas that the tree authority had granted approval in a haste and without considering opposing views.

"We highlight that the deliberation by the tree authority members was not only at the meeting held on August 29, 2019. They had discussed the issue at site visits held on August 10 and 20, 2019. What was discussed at the site has been neatly presented as a bonsai in the report prepared by the tree officers," the court said.

The Brihanmumbai Municipal Corporation had given the tree hacking approval on August 29, 2019, triggering protests by green activists and common citizens who launched a "Save Aarey" campaign.

Vanshakti, in its plea, claimed Aarey colony, measuring 1,287 hectares, had several exotic flora and fauna.

On the Vanshakti petition, the court said, "The remedy is before the Supreme Court or the National Green Tribunal. We have applied the principle of commonality and not decided on merit."

The Maharashtra government has claimed the Aarey colony cannot be termed a forest and that the issue has been already decided by another HC bench.

Advocate General Ashutosh Kumbhakoni, appearing for the state earlier, had said an appeal against the HC order refusing to declare Aarey a forest is currently pending before the Supreme Court.

Bathena, in his plea, challenged the decision taken by the tree authority granting permission to cut trees. The proposed carshed, part of the metro 3 project, will occupy 33 hectares in the southern part of Aarey colony.

The authority has approved felling of 2,185 trees and transplanting (uprooting from the original spot and replanting them at an alternate spot) 461 trees from the area.

The authority's approval is mandatory for felling of more than 20 trees at a time at any place in the city. 

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