IN RE: FELLING OF TREES IN AAREY FOREST (MAHARASHTRA) versus IN RE: FELLING OF TREES IN AAREY FOREST (MAHARASHTRA) on 17 April 2023

1. Mumbai Metro Rail Corporation Limited[1] seeks a clarificationof the order of this Court dated 29 November 2022. By the order of thisCourt, MMRCL was permitted to move the Tree Authority for felling 84trees. MMRCL submits that 177 trees have to be felled or, as the casemay be, transplanted for the Metro Car Shed Land at Aarey Colonyadmeasuring approximately 33 hectares for Mumbai Metro Line-3.Permission is hence sought to implement the permission which has beengranted on 15 March 2023 by the Superintendent of Gardens of theMunicipal Corporation of Greater Mumbai for felling 124 trees andtransplanting 53 trees.

2. By the order of this Court dated 29 November 2022, an earlierorder directing the preservation of the status quo on felling trees wasmodified, so as to permit MMRCL to move the Tree Authority on itsapplication for felling 84 trees. Following the order of this Court, anapplication was initially moved on 19 December 2022 for permission tofell 84 trees. On 2 January 2023, MMRCL, however, sought permissionto cut 185 trees, without moving this Court.

3. By a communication dated 20 December 2022, the DeputySuperintendent of Gardens intimated the Deputy General Manager(Depot) of MMRCL that the site was jointly inspected by his staff, togetherwith the representatives of MMRCL on 19 December 2022. Following 1 “MMRCL”

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Athe inspection, the Deputy Superintendent of Gardens sought complianceon the following aspects:

“1. Submit updated proposal for the current status of trees as pera fresh survey.

2. Mention missing/dead/fallen trees and also any new addition toBthe list of affected trees as a long period has lapsed since the lastsurvey.

3. Number all such trees on the sites with black and white paint;

4. Submit details of land where the trees are to be proposed forCtransplantation and compensatory plantation.”4. On 12 January 2023, the Superintendent of Gardens issued apublic notice indicating that 185 trees would be affected of which 124trees would be felled and 53 trees would be transplanted.

5. Since the action proposed was in excess of the 84 trees whichDwere permitted to be felled by the order of this Court, a public interestlitigation[2] was moved before the High Court of Judicature at Bombay.The Division Bench, by its order dated 9 March 2023, observed:

“Public Notice has been issued by the Tree Authority. The Petitionerhas already raised objection before the Tree Authority. TheEPetitioner can bring it to the notice of the Tree Authority, the orderof the Apex Court. No final order has been passed by the TreeAuthority. It is for the Tree Authority to consider whether thosetrees beyond 84 were shrubs or otherwise.”

6. On 15 March 2023, the Superintendent of Gardens and TreeFOfficer granted permission for felling 124 trees and transplanting 53trees, subject to the condition that 1533 trees would be planted on theproperty. This led to the institution of another public interest litigation[3]before the High Court. The Division Bench, by its order dated 31 March2023, observed and, in our view, correctly, that this Court had grantedpermission to move the Tree Authority only to the extent of 84 trees.GHence, the permission which was granted in respect of 177 trees wasbeyond the permission granted by this Court on 29 November 2022.The High Court held that propriety would require that trees shall not befelled in pursuance of the order dated 15 March 2023 until a clarification 2 “Public Interest Litigation (L) No 2169 of 2023H3 Public Interest Litigation (L) No 8655 of 2023

was sought from this Court. It is in view of the above factual background,that the application for clarification has been filed by MMRCL.

7. We have heard Mr Tushar Mehta, Solicitor General appearingon behalf of MMRCL, Mr Dhruv Mehta, senior counsel appearing onbehalf of the Municipal Corporation, and Mr C U Singh and Mr GopalSankaranarayanan, senior counsel appearing on behalf of the respondents.

8. At the outset, the Court must take notice of the fact that whenthe order dated 29 November 2022 was passed, it was on the specificrequest of MMRCL that it should be permitted to pursue its applicationbefore the Tree Authority for permission to fell 84 trees for the purposeof the work of the ramp. The Court modified the earlier order of statusquo which held the field, to the above extent. If the number of trees thatare required to be felled was in excess of the permission which wasgranted by this Court, to move the Tree Authority to fell 84 trees, proprietyrequired that an application had to be moved before this Court for itspermission and for modification of its order dated 29 November 2022.Instead, it appears from the record that though initially the applicationwas made for felling 84 trees, subsequently, a stand was adopted thatactual number of trees would be in excess of what was originallyenvisaged.

9. As a matter of fact, it would be necessary to refer to the affidavitwhich was filed by the Chief Project Manager of MMRCL before theHigh Court of Judicature at Bombay in which the following avermentswere incorporated:

“24)In the aforesaid and such other relevant background of facts,in the humble submission of this Respondent, the number oftrees that are required to be felled is an aspect which isincidental to the proposal which is pending for considerationbefore the first Respondent in respect of which the Hon’bleSupreme Court has granted liberty to the presentRespondent to pursue, which is being done by the presentRespondent. I therefore say that not permitting the answeringRespondents to prosecute the present application in issuecovering more number of trees over and above the numberof trees incidentally mentioned in the aforesaid order of theHon’ble Supreme court, in fact would amount to frustrating

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the said order and/or preventing its implementation in itstrue letter and spirit.

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26) I hasten to state that if the contention of the Petitioner isaccepted that will in fact amount to causing impediment inBthe effective implementation of the order of the Hon’bleSupreme Court. At this juncture, it also will be apposite toconsider the well settled principle of law that the Judgmentof the Hon’ble Supreme Court and/or of this Hon’ble Courtcannot be read as a statute. I say that the Petitioner wantsCthis Hon’ble Court to read the order of the Hon’ble SupremeCourt as a statute, which is impermissible.”

10. The above averments in the affidavit which was filed byMMRCL indicate that it was well aware of the fact that the order of thisCourt continued to operate. MMRCL sought to justify its application forDfelling of trees in excess of what was permitted by the specific directionsof this Court. Such an exercise was clearly not contemplated in theorder of this Court. We are constrained to observe that MMRCL hasmade an attempt to overreach the jurisdiction of this Court.

11. The issue which, however, needs to be considered in theEapplication for clarification is whether permission should be granted interms of the order which has been passed by the Superintendent ofGardens.

12. In the IA for clarification, it has been submitted that subsequentto the order of 29 November 2022, a joint inspection took place on 19FDecember 2022 between the officers of the Municipal Corporation andMMRCL since a period of approximately three years and ten monthscovering four monsoon seasons had elapsed from the date of the previousinspection which took place on 20 March 2019. It has been stated that inthe course of the joint inspection, it was found that some trees were“missing/dead/fallen” and additional plants and trees had grown sinceGthe date of the previous inspection. Hence, it has been sought to beurged that the updated number of affected trees were estimated at 185,pursuant to which a public notice notice was issued by the Tree Authorityon 12 January 2023.

13. The Solicitor General, while adverting to the contents of theIA, also submitted that a compilation of relevant documents was placedon the record of this Court on 5 April 2023.

14. On the other hand, it has been submitted by Mr C U Singh andMr Gopal Sankaranarayanan that a survey was conducted in 2020 and,as a matter of fact, it was based on the survey that MMRCL had soughtpermission to prune a certain number of trees and to fell 84 trees. Seniorcounsel submitted that this Court permitted MMRCL to move the TreeAuthority specifically with reference to the proposal for 84 trees. Inother words, it has been urged before this Court that the fresh proposalwhich was made before the Tree Authority after the order of this Courtdated 29 November 2022 was clearly not bona fide having due regardto the events which had transpired, resulting in the order of this Court.

15. It was improper on the part of MMRCL to move the TreeAuthority for the felling of any trees in excess of 84 trees. If circumstanceshad transpired which led to a variation in the number of trees to be cut,the only correct course of action would have been to move this Court.We are, hence, of the view that it would be necessary for the Court topenalize MMRCL for its conduct. Having said that, the issue is as towhether the permission which has been granted on 15 March 2023 shouldbe stayed by the Court, at the present stage. Any such direction willhave the consequences of bringing the public project to a standstill. Sucha course of action would not be desirable. As the Court noted in itsprevious order, substantial steps have already been taken by felling over2000 trees for the purpose of the project. In this backdrop, we modifythe previous order by permitting MMRCL to act in compliance with theorder dated 15 March 2023. However, this shall be subject to the followingdirections:

(i) MMRCL shall, within a period of two weeks, deposit anamount of Rupees Ten Lakhs with the Conservator ofForests;

(ii) The Conservator of Forests shall ensure that all directionswhich have been contained in the previous orders of theTree Authority for afforestation have been duly compliedwith;

(iii) The Conservator of Forests shall submit a report beforethis Court indicating the status of compliance in regard to A

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Athe directions which have been issued up-to-date forafforestation and for transplantation of trees; and

(iv) In order to enable this Court to have objective assistancein regard to the compliance of the directions forafforestation, we request the Director of IIT Bombay toBdepute a team for the purpose of verifying compliance. Areport shall accordingly be submitted before this Court withina period of four weeks. The costs, charges and expensespayable shall be borne by MMRCL.

16. The IA is accordingly disposed of.

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Ankit Gyan

IA disposed of.

(Assisted by : Mahendra Yadav, LCRA)

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