IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA) versus IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA) on 29 November 2022

1. On 15 April 2019, this Court, while considering Petition forSpecial Leave to Appeal (Civil) No 31178 of 2018, declined to grantinterim relief in IA No 33819 of 2019. The reliefs which were sought inGthe application for interim relief were in the following terms:

“a)… stopping all activities being carried out by the RespondentNo-4 on the land in question inside Aarey Colony;

b)… directing the Respondents to carry out the activities forsetting up Metro Car depot at the alternative sites referredHto in paragraph 3 of the present application;

c)… staying the operation of the observations made at page92 of the impugned order to the effect that Aarey MilkColony area cannot be referred to as forest; and d)… any other order or further order or orders as this Hon’bleCourt may deem fit and proper in the circumstances of thecase.”

2. Subsequently, on 7 October 2019, this Court, while entertaininga Suo Moto Writ Petition[1], passed an order recording the statement ofthe Solicitor General appearing on behalf of the State of Maharashtrathat no further trees were being felled till the next date of listing.

3. On 5 August 2022, this Court directed that all the connectedwrit petitions and Special Leave Petitions could be listed for final disposal.No specific interim directions were issued in view of the position ofMumbai Metro Rail Corporation Limited[2] that no further trees had beenfelled since the order dated 7 October 2019 and none be cut till the nextdate of hearing.

4. The position in regard to the permissions which have been soughtfor the felling of trees in respect of the proposed depot at Aarey forMetro Line – 3 has been summarized in a plan which has been placedon the record by the Solicitor General. The position is elucidated below:

ACar Depot

(i) Permission applied on 21 July 2017;

(ii) Permission granted by the Tree Authority on 13September 2019;

(iii) Trees permitted to be cut – 2185; and

(iv) Actual number of trees cut – 2144.

BRamp area

(i) Permission applied on 6 September 2017;

(ii) Permission granted by the Tree Authority on 6 July2018;

(iii) Trees permitted to be cut – 235; and

(iv) Actual number of trees cut – 212.

1 Suo Moto Writ Petition (Civil) No 2 of 2019

2 MMRCL

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ACShunting area

(i) Permission applied on 11 February 2019;

(ii) Total number of trees affected – 84; and

(iii) Grant of permission awaited.

B5. The IA which has been moved by MMRCL[3] is for permissionto enable it to move the Tree Authority for the felling of 84 trees requiredfor the purpose of proceeding with the shunting segment of the Aareycar depot. For convenience of reference, the relief which has been soughtin IA moved by MMRCL is extracted below:

C“a)Direct/permit the Tree Authority to decide the applicationdated 11.02.2019 filed by MMRCL pending before it andpass final order thereof with respect to cutting of the 84trees under The Maharashtra (Urban Areas) Protection andPreservation of Trees Act 1975 located on Metro Car ShedDLand at Aarey Colony admeasuring approximately 33hectares for the Mumbai Metro Line-3 project in Mumbaiand permit, MMRCL to implement such decision of the TreeAuthority, as the case may be;”

6. Apart from the IA which has been moved by MMRCL, thisCourt is seized of the following IAs:E

i.IA No 104886 of 2022 in Suo Moto Writ Petition (Civil) No2 of 2019seeking, inter alia,that (a) the order dated 21 July2022 issued by the Urban Development Department of theGovernment of Maharashtra be kept in abeyance as itpermits work on the car depot at Aarey, (b) the GovernmentFof Maharashtra submit the Wildlifereport on the Aarey CarShed plot and to grant protection to wildlife on the said plotand declare the area as a forest;

ii.IA No 178233 of 2019 in Suo Moto Writ Petition (Civil) No2 of 2019 seeking inter alia,the issuance of directions toGthe Government of Maharashtra to declare Aarey as a forestand direct that no trees be cut;

iii.IA No 107131 and IA 50314 of 2022 in Special LeavePetition (Civil) No 31178 of 2018 seeking, inter alia, a H3 IA No 169860 of 2022 in Suo Moto Writ Petition (Civil) No 2 of 2019

direction restraining the respondents from carrying out allwork of construction within the 33 hectares area implicatingthe Aarey car project;

iv.IA No 105220 of 2022 in Special Leave Petition (Civil) No14933 of 2019 for restraining the respondents from carryingout any consequential activities, including clearing of plants,excavation of vegetation or proceeding with any construction.

7. In order to appreciate the salient facts insofar as they pertainto the IAs before this Court, it would be appropriate, at this stage, toadvert briefly to the course of events.

8. On 6 January 2021, the Government of Maharashtra constituteda committee chaired by the Chief Secretary for examining whether theproposed car depot at Aarey should be realigned and relocated. TheCommittee submitted its report on 21 January 2021. The Committeewas of the considered view that the location of the car depot at Aareyshould be realigned so that an integrated car depot would be set up bothfor Metro Lines – 3 and 6 at Kanjurmarg. The report of the Committeewas accepted by the State Government on 23 March 2021.

9. On 17 March 2022, the Union Government in the Ministry ofHousing and Urban Affairs addressed a communication to the ChiefSecretary of the Government of Maharashtra, following a meeting whichwas convened on 23 September 2021 between the Ministry and theofficials of the State Government “to discuss the Aarey depot issue whichis seriously hampering the progress of Metro Line-3 project”. The letterrecorded that a decision was taken that Delhi Metro Rail Corporation[4]and M/s SYSTRA, the consultant appointed by MMRDA, would hold ameeting to sort out technical issues in the event that the depot was shiftedto Kanjurmarg. Thereafter, following the meetings between DMRC andSYSTRA, DMRC submitted a report on 11 February 2022. Both DMRCand SYSTRA have agreed that there are ‘inherited’ operational andmaintenance constraints in the proposal to have a common depot fortwo or more lines at Kanjurmarg. Some of the major observations in thereport are summarized in the communication dated 17 March 2022 andare extracted below:

“(i)The simulation exercise done by M/s SYSTRA is incompleteas no simulation internal to depot has been done. M/s 4 DMRC

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ASYSTRA had informed that simulation internal to depot mayrequire involvement of signalling contractor, which wasbeyond their scope of work. Thus, it could not be checkedby DMRC that proposed plan of induction of trains fromdepot could really materialise or not. DMRC has recordedtheir own experience that inducting trains from the depotBconsistently at a frequency of 4 minutes continuously for 3or more hours is a challenging task.

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(ii) There is a compromised time of maintenance window dueto running of Line-3 trains for 7.5 km on Line-6 networkupto Kanjurmarg. This will also have an adverse impact onCrestoration time in the event of failure of Line-3 train duringregular operation period.

(iii) There is sub optimal utilization of trains as at least twotrains are to be kept as hot standby at SEEPZ village station.

(iv) 100% punctual operation throughout the trips all the timein a day is rarely possible in real life operations as lot offactors affect train movement.Any deviation in trainmovement will lead to detention at L-3 & 6 connectionswhile transferring of trains between L-3 & 6. Thus, thedetention of trains mid-section seems real and unavoidable.

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(v) There is a requirement of same signalling system from theLine-3 supplier for Line-6 and thus related compulsions.”

10. In the above backdrop, the communication of the UnionMinistry of Housing and Urban Affairs noted that the proposed integrationof two lines at SEEPZ village station would be a permanent risk to reliableFtrain operations of both the lines. DMRC’s report had suggested that thedecision to adopt an integrated depot for Metro Lines – 3 and 6 shouldbe taken only if it is absolutely unavoidable even with possible mitigationmeasures in the present plans at Aarey. The communication also recordsthat the conclusion of the report of the Committee chaired by the ChiefGSecretary to the Government of Maharashtra that the current land anddesign of the depot at Aarey would be insufficient to cater to the projectdesign life requirement of Line-3, thereby necessitating an alternativelocation at Kanjurmarg is factually incorrect. In the opinion of the UnionMinistry of Housing and Urban Affairs, the land at Aarey is sufficient tomeet the current and projected requirement up to 2055 and, hence, itH

would not be prudent to shift the location to Kanjurmarg at the presentstage of the project. Moreover, it has been stated that:

(i) The project is in a significantly advanced stage of completion;

(ii) The combined depot plans will introduce operational andmaintenance bottlenecks in the functioning of the networkfor the entire lifecycle of a high capacity metro line; and

(iii) While the land at Aarey is free from encumbrances, theland at Kanjurmarg is under litigation.

11. Consequently, the State Government was requested toreconsider its decision to shift the depot of Line-3 from Aarey colony toKanjurmarg and to allow the restarting of the depot work of Line-3 atAarey colony for expeditious completion of the project in public interest.

12. Responding to the above communication, the StateGovernment has on 21 July 2022 taken a decision to allow the work ofthe Metro Car Depot at Aarey to proceed.

13. Appearing on behalf of MMRCL, the Solicitor General hashighlighted that:

(i) The overall cost of the Metro project ranges in the vicinityof Rs 23,000 crores, which is now projected to escalate toRs 37,000 crores;

(ii) Nearly 95 per cent of the project work has been completed;

(iii) Permission had already been granted for the felling of 2,185trees envisaged in the segment pertaining to the car depotand 235 trees for the segment pertaining to the ramp, while,permission has been sought of this Court to move the TreeAuthority for the felling of 84 trees which would beoccasioned in the segment pertaining to shunting; and

(iv) Having regard to the overall contours of public interestbearing on the project, the orders passed by this Court on 7October 2019 and 5 August 2022 may be clarified to theextent that MMRCL may be allowed to move the TreeAuthority for the grant of felling permission.

14. While opposing these submissions, Mr C U Singh and MsAnitha Shenoy, senior counsel, have urged that apart from rejecting therelief which has been sought by MMRCL, there are valid grounds for this 441A

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ACourt to not allow the decision of the State Government which wastaken on 21 July 2022 to allow the car depot project at Aarey to proceed.It has been urged that:

(i) The decision which has been taken on 21 July 2022 amountsto a reversal of a considered view which was taken by theBState Government on 23 March 2021, while accepting thereport of the Expert Committee chaired by the ChiefSecretary dated 21 January 2021;

(ii) The decision of the Committee was based on cogentconsiderations, including the fact that the capacity of theCproposed car shed at Aarey would be exhausted in 2031leading to a further need for the felling of approximately1000 trees should an expansion proposal be taken up in thefuture;

(iii) Once a considered decision was taken by the StateDGovernment to accept the report of the Committee chairedby the Chief Secretary, there was no valid basis to rescindthe decision in the absence of scientific material whichwould indicate that a contrary view was more desirable;and E(iv)The area in question is sensitive ecologically having dueregard to its proximity to the Sanjay Gandhi National Park,which is rich in bio-diversity.

15. Ms Anitha Shenoy, senior counsel, while buttressing the abovesubmissions, urged that the project involving the construction of a MetroFLine has high pollution potential falling within the red category. Moreover,it was submitted that on 12 October 2020, a notification has been issuedunder which 286 hectares of land have been notified as forests. Seniorcounsel submitted that, in this backdrop, the decision of the StateGovernment to the effect that full capacity utilization of the car shed atGAarey would be reached in 2031 necessitated the realignment of the carshed at Kanjurmarg. Hence, it was urged that there was no valid basisfor the State Government to rescind its decision.

16. While analyzing the merit of the rival submissions, it must, atthe outset, be noted that the validity of the judgment dated 26 October2018 and of the two judgments dated 4 October 2019 would fall forH

determination when the Special Leave Petitions are taken up for finaldisposal.

17. This Court, by an order dated 15 April 2019, declined to grantinterim relief. At that stage, when the Court proceeded to decline interimrelief, the State Government had filed its affidavit indicating the inherentpublic interest involved in the execution of the project. In regard to thealternate site, the affidavit of the State Government explained that inNovember 2011, a detailed project report for the Metro corridor hadbeen prepared. A six-MemberTechnical Committee chaired by theMetropolitan Commissioner, MMRDA was constituted to consideralternate sites. The Technical Committee submitted its report on 11 August2015 and considered the various sites, including the following:

“a)Backbay Reclamation, Colaba

b)Mumbai Port Trust

c)Mahalaxmi Race Course

d)Dharavi

e)Bandra Kurla Complex

f)Mumbai University, Kalina

g)Aarey Colony

h)Sariput Nagar

i)Kanjur Marg.”

18. In its affidavit, the State Government submitted that afterconsidering the options above, the Committee found that three sites at orbeyond the terminal points meet the requirements. Thereafter, theTechnical Committee submitted its report recommending as follows:

“i)The Metro-Ill car-depot be located at Kanjur Marg, withonly a small stabling unit at Aarey Depot;

(ii) In case the land was not made available at Kanjur Margwithin a period of three months then the car-depot wasproposed to be located at Aarey Colony within a 20.82hectare area; and

(iii) Measures would have to be taken to mitigate environmentdamage at Aarey Colony.”

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A19. The report of the Technical Committee was accepted by theState Government on 16 October 2015. The State Government explainedthe steps which were taken thereafter pursuant to the report of theTechnical Committee. This Court, after having considered the applicationfor interim relief, considered it appropriate to decline relief.B20. Now, it is in this backdrop that this Court must consider as to A

B20. Now, it is in this backdrop that this Court must consider as towhether it ought topermit the Tree Authority to decide the applicationdated 11.02.2019 filed by MMRCL for felling of 84 trees. Alternatively,there is a wider relief which has been sought in the companion IAs thatno part of the Aarey car shed should be allowed to proceed pending thefinal disposal of the proceedings.C

21. In such projects involving large outlay of public funds, theCourt cannot be oblivious to the serious dislocation which would be causedif the public investment which has gone into the project were to bedisregarded. Undoubtedly, considerations pertaining to the environmentare of concern because all development must, it is well settled, beDsustainable.

The State Government which had taken a decision in the firstplace to accept the Technical Committee report in 2015, later on, changedits view while deciding upon the realignment of the Metro car project atKanjurmarg. Subsequently, various aspects were pointed out to the StateEGovernment by the communication dated 17 March 2022 of the UnionMinistry of Housing and Urban Affairs. At this stage, it cannot be gainsaidthat the factors which have been set out in the communication dated 17March 2022 cannot be disregarded. Having regard to the entirety of thematerial before it, if the State Government has come to the conclusionFthat the original decision to allow the Metro car depot for Metro Line-3be located at Aareyhas to be restored, it would not be possible for theCourt at the interim stage to stay the decision.

22. Moreover, it must also be noted that a substantial number oftrees pertaining to the area which falls within the segment of the carGshed and the ramp have already been felled. Consequently, this Courtwas apprised on 7 October 2019 and 5 August 2022 that no further treeswere required to be felled. As already noted earlier, 2,144 trees werefelled in executing the work pertaining to car depot, while, 212 treeswere felled in connection with the work of the ramp. What is now soughtis permission to apply to the Tree Authority for the felling of 84 treesH

pertaining to the ramp. It needs no emphasis that without a ramp thework which has already been completed would be of no consequenceand would be wholly ineffective. Hence, having due regard to the abovecircumstances, we have arrived at the conclusion that MMRCL shouldbe permitted to pursue its application before the Tree Authority for thepermission to fell 84 trees for the purpose of the ramp. We clarify thatthe Tree Authority would be at liberty to take an independent decision onthe application and determine what conditions, if any, should be imposedif it decides to grant its permission.

23. The order of this Court, which has the effect of directing thepreservation of status quo on the felling of trees, shall accordingly standmodified to the above extent thereby permitting the MMRCL to movethe Tree Authority on its application for felling of 84 trees. The stategovernment would be at liberty to proceed further.

24. The IAs are accordingly disposed of.

25. The entire batch of petitions would be listed for hearing andfinal decision on 7 February 2023.

Devika Gujral

IAs disposed of.

(Assisted by : Shubhanshu Das, LCRA)

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