Thinking Point

Apex court comes to the rescue of Aarey ‘forest’

Arunima Sen Gupta

The Supreme Court on October 7 recorded an assurance given by the State of Maharashtra that no more trees will be felled in the Aarey forest for a Metro car shed till the next date of court hearing on October 21. A Special Bench of Justices Arun Mishra and Ashok Bhushan, convened urgently and exclusively to hear the case after the apex court took suo motu cognisance of a letter written by law student Rishav Ranjan to the Chief Justice of India about the cutting of over 2600 trees in the Aarey, ordered status quo. The Bench also recorded the submission made by Solicitor General Tushar Mehta, for Maharashtra, that the detained protestors have already been released, and if any are left to be freed, they would be so immediately on the furnishing of personal bond.

“Tushar Mehta, Solicitor General, appearing for the State of Maharashtra, has stated that they are not going to cut any further trees till the next date of hearing.  In the circumstances, the statement is quite fair. It is stated by Mr. Mehta that the incumbents who have been arrested have been released.  It is further submitted that in case anybody has not been released so far, he/she be released immediately on furnishing personal bond.  Let the statement made be carried out in pith and substance,” the court directed in its short order. Ordering “status quo to be maintained till the next date of hearing with respect to cutting of trees”, the court ordered the parties to exchange pleadings by the next date of hearing before the Forest Bench. However, in the course of the order, the Bench mentioned a pending Special Leave Petition of last year in which it was pointed out that as “seen from the Management Plan for Sanjay Gandhi National Park, Borivali, Mumbai, some of the areas of the Aarey Milk Colony were transferred to revenue lands from the un-classed forests”. “However, identity of the area is to be established by the petitioners, though, it was orally stated that the area in question fell in the un-classed forest,” the court noted.

The felling of trees is being opposed by green activists and local residents. The letter said Aarey Forest was an unclassified forest and the felling of trees, robbing Mumbai of its green lungs, was illegal. The Bombay High Court had on October 4 refused to declare Aarey Colony a forest and declined to quash a Mumbai Municipal decision to permit the cutting of the trees for the metro car shed. Restrictions under Section 144 of Code of Criminal Procedure were imposed in the Aarey area. However, a notice was published on the Supreme Court website informed of the suo motu taking up of the case under the title ‘Re: Felling of trees in Aarey Forest (Maharashtra)’ on the basis of Mr Ranjan’s evocative letter. “Mumbai authorities continue to kill the lungs of Mumbai i.e. Aarey forest by clearing of trees near Mithi river bank and according to news reports 1,500 trees have already been cleared by authorities,” the letter said. “Not only this but our friends are put in jail who were peacefully organising a vigil against acts of the Municipal Corporation of Greater Mumbai (MCGM) with Mumbai Metro Rail Corporation (MMRC) at the site,” it said. Aarey forest is located adjacent to the Sanjay Gandhi National Park and has five lakh trees.

To recap the events of the past few days, the Bombay HC shot down all the environmentalists’ petitions, prompting authorities to swing into action and begin removing trees. In the ensuing protests, 29 activists were arrested (and eventually released). However, activists have gotten a temporary breather from the Supreme Court, which stayed further cutting of trees before it deliberates on the case on October 21.

Officials say 2,141 trees cut in Aarey, petitioner says 800

While the Metro authority said more than 2,000 trees have been cleared, environmentalists claim it is bluffing. The Mumbai Metro Rail Corporation Limited (MMRCL) earlier tweeted saying that 2,141 of the 2,185 trees that were marked, were felled over the weekend. Activists deny this. “My estimate is that they have cut around 800 trees,” said Stalin Dayanand founder of the non-profit Vanashakti, and a petitioner in the public interest litigation filed in the Bombay high court. "They are overestimating the numbers assuming that people won’t be vigilant and will allow the rest to be cut away,” he added. However, it was not possible to independently verify this estimated number. Another protestor, Cassandra Nazareth, said they were not allowed to go inside the forest due to the imposition of Section 144 of the Criminal Procedure Code (which prohibits large gatherings and unlawful assemblies) by the Mumbai police at Aarey. “We cannot be sure about how many trees were cut last week. The police stopped us right at the entrance of Aarey forest,” she says.

The government contends that the felling of trees is justifiable on two counts: first, that the portion of Aarey earmarked for the Metro carshed is not a classified forest to begin with, and second, that they were planting 7 trees for every tree axed in Aarey to offset the loss of tree cover. Further, it said that the “Carbon di-oxide sequestration of 2,702 trees for their entire lifetime calculated at 12,79,062 kg would be compensated in 3948 fully loaded trips of Metro Trains operating (sic)” . Tree experts, however, say that merely planting new trees is not a justification. New trees cannot replace the ‘ecosystem services’ that fully grown trees provide. “Mature trees in cities provide crucial ecosystem services for humans and other species like birds, small animals, and insects. It is time those who vote for development understand that real development means to include the trees too in the development process,” says Shobha Menon, a tree expert and the founder of ‘Nizhal’, a non-profit that works with local governments and promotes trees. “Why do we have to encounter natural disasters like cyclones and floods to understand the value of protecting and caring for what we already have?” she asks.

A few days ago, Union minister for environment, forests and climate change (MoEFCC) Prakash Javadekar backed the Bombay HC’s decision, saying: “Basically the high court has decided and ruled yesterday that it (Aarey) is not a forest.” He was speaking to reporters in Lucknow after the MMRCL began cutting trees in Mumbai. “You can’t fell anything that is forest,” he added. Experts in land conflict say that getting the government to identify forests has always historically been a complex and political struggle. The process of legally defining a forest has been a contentious issue since the 1980s. The Supreme Court, in 1996, said a forest must be defined by its dictionary meaning. The term ‘forest land’, will not only include ‘forest’ as understood in the dictionary sense but also any area recorded as forests in government records irrespective of ownership. In 2016, however, the MoEFCC left it to state governments to demarcate and define forests as per their own records. “One significant issue in the Aarey case was that this process of identifying deemed forest area is incomplete, and yet the area for the Metro shed is being treated as a non-forest where neither the dictionary meaning nor the rights of forest-dwelling communities would be applicable,” says Kanchi Kohli, researcher at the Centre For Policy Research, a public policy think-tank based in New Delhi. Stalin Dayanand says it is absurd that the government has not notified Aarey as a forest. “This is a land with five lakh trees, two rivers, three lakes, 76 types of birds, seven resident leopards and 18 types of reptiles in it,” he says. “Yet, the govt did not notify this forest, for which they need to rapped on the knuckles and punished. You cannot profit from your lapses,” he adds.

When Bombay HC upheld Tree Authority's decision to cut trees

The Bombay High Court upheld the decision taken to clear over 2,600 trees in the Aarey Colony, as per a resolution passed by the Tree Authority of the Brihanmumbai Municipal Corporation (BMC) on August 29, for construction of Metro car depot. In doing so, it dismissed two pleas; one challenging the Tree Authority proceedings in which the August 29 resolution was passed, and a second filed by NGO, Vanashakthi to declare over 1,000 hectares of the Aarey Colony as an ecologically sensitive zone under the Indian Forest Act. The High Court also dismissed a petition filed by Shiv Sena Corporator Yashwant Jadhav, a member of Tree Authority, who had challenged the resolution of the panel. The Court imposed a cost of Rs 50, 000 on Jadhav. However, the Bench of Chief Justice Pradeep Nandrajogand Justice Bharati Dangre clarified that the plea filed by Vanashakthi was dismissed not on merits, but rather on the principle of comity or legal reciprocity. The Court observed that the remedy sought in this plea lay with the Supreme Court or the National Green Tribunal.

On August 29, the Tree Authority had passed the resolution to cut the trees in Aarey, which included 2,185 trees proposed to be cut and 461 trees proposed to be transplanted for a Metro car shed for the Colaba- Bandra- Seepz Metro line and other projects. Expressing their disappointment over the approval given for removing the trees in Aarey, citizens, and activists had earlier staged a protest across the city on August 30 and demanded the reversal of the decision. Thereafter, environmental activist Zoru Bhathena approached the Bombay High Court, challenging the proceedings of the Tree Authority's meeting in which the resolution was passed. Inter alia, Bhathena had contended there were no reasons recorded as to why the objections raised by the citizens have been overruled by the authority. It was further argued that the resolution was passed without receiving written inputs from all the trees experts. Moreover, Bhathena submitted that the resolution failed to record reasons as to why it differed from the experts' opinion. The State countered these arguments, asserting that there were no discrepancies in the process carried out to pass the resolution for the felling of trees. It was contended that Tree Panel had taken the decision to fell the trees as per the procedure laid down in the Tree Act, 1975 and with due application of mind. It was further argued that the metro project is of paramount importance for the city.

Bhathena had also approached the High Court, contending that the proposed metro car depot falls within the ‘flood-plain’ and therefore it cannot be constructed as per the state water policy. Moreover, Vanashakti had urged the Court to declare over 1,000 hectares of the Aarey Colony as an ecologically sensitive zone under the Indian Forest Act. The State authorities had denied these claims as well. On Oct 4, while dismissing Vanashakti's petition, the Division Bench noted that Davids (environmentalists) took on industrial Goliath's. In view of this, Chief Justice Nandrajog had remarked: “In the instant case, the Davids (petitioners) row their boat with faith, courage, and devotion in the storm of development; but directionless. The Greens (environmentalists) fail in the instant petition because they have lost touch with the procedure to be followed as per law.” On September 17, the High Court had passed an interim order restraining the MMRCL that from felling trees in the Aarey Colony until September 30. That relief was thereafter extended until the pronouncement of the judgment.

When Union Environment Minister backed cutting of trees

Amid ongoing public protests against the cutting of trees at Aarey colony in Mumbai, Union Environment Minister Prakash Javadekar backed the proposed metro shed in Aarey forest area and said development and environment protection should be done together. Drawing parallels between the development of Delhi metro and Mumbai metro he said: “The High Court has ruled that Aarey is not a forest. Metro came to Delhi now today it is the best metro across the world. How does it develop? When the first metro station was constructed, 20-25 trees were cut down. People then protested against it. But metro has planted 5 trees for every single tree that it has taken down. Now, there are 271 stations. Forest undercover area has increased in Delhi. 30 lakh people are using the metro as public transport. This is the mantra of development and protecting the environment. Both should go together.” Though BJP alliance partner Shiv Sena attacked Chief Minister Devendra Fadnavis for backing the metro shed. Shiv Sena senior leader and Rajya Sabha lawmaker Sanjay Raut posted a cartoon in which the BJP leader is blindfolding Lady Justice with a strip of cloth that reads: “Arey not a forest”. Party chief Uddhav Thackeray’s son and Youth President Aaditya Thackeray asked Mumbai Metro to listen to sensible demands of sustainable development. “A project that should be executed with pride, the Metro 3, @MumbaiMetro3 has to do it in the cover of the night, with shame, slyness and heavy cop cover. The project supposed to get Mumbai clean air is hacking down a forest with a leopard, rusty-spotted cat and more,” he tweeted. Earlier, Fadnavis had said the government was bound to cut trees in Mumbai’s Aarey forest as “development is important”. “We do not wish to cut even a single tree in Aarey, but the development is also important. We will plant more trees in place of those cut. I will personally speak to Aditya Thackeray about this,” he said.

When student delegation calls on CJI to intervene

The felling of trees in Aarey and the detention of activists protesting the removal of trees prompted a student delegation to call on Chief Justice of India Ranjan Gogoi to intervene. After the Bombay High Court dismissed pleas challenging the removal of trees in Aarey, and thereafter refused to entertain an urgent request to stay the tree removal, the municipal authorities had begun clearing the trees in Aarey. It is reported that around 1,500 trees were cut in the first round. In view of these developments, a representation addressed to the CJI dated October 6 highlighted that: “...by the time an appeal is filed (against the Bombay High Court verdict) in the Hon’ble Supreme Court we feel the part of Aarey will be cleared with all trees axed leading to irrevocable loss.” The petition also raised concern over the treatment meted out to peaceful protesters. Several activists were detained by the Mumbai Police on October 4, Friday, and have been unable to contact their families, the representation highlights. Those who tried to protest, emulating the Chipko movement were lathi-charged by the Mumbai Police several times, it further states. “These were …law students, young activists, and rural youth in that vigil. It is reported by them that the rate of felling was around 7 trees every 10 minutes. By the time an appeal is filed and the matter is listed in the Supreme Court the unwanted irrevocable loss will be done. This makes this petition urgent…”, the representation stated. It also informed that on that Sunday morning, various detained activists were charged for non-bailable offences under Sections 353, 352, 143 and 149 of the Indian Penal Code.

In view of those concerns, the representation, signed off by Dhananjay Ranjan, a 4th-year law student of Lloyd Law College, Noida, put forward the following request: “The delegation requests the Hon’ble Supreme Court to exercise its Epistolary Jurisdiction to protect Aarey without getting into technicalities as there was no time for preparation of proper appeal petition and cover the scars of these young activists who are responsible citizens standing for serious environmental concerns. The counsel pleads to urgently get this matter listed as Writ Petition under Article 32 of the Indian Constitution as the Hon’ble Court had showered its Epistolary Jurisdiction in cases like Bhandhua Mukti Morcha v Union Of India, Peoples Union of Democratic Rights and others v Union of India and Sheela Barse v State of Maharashtra. The delegation wants you to pass any order possible for a stay on the acts of Municipal Corporation.  The present petition seeks orders on writs of Mandamus for a stay on felling of trees by Municipal Corporation of Greater Mumbai...”. The Apex Court obliged the young nature activists by taking up the case on a suo motu basis.