Can Anything Stop the Cutting of 800 Trees in Aarey Colony?

The 15-day notice argument by activists is unlikely to succeed, but an appeal to the Supreme Court could still work.

Can the felling of trees in Aarey Colony be stopped?

(Photo: Kamran Akhter/The Quint)

On 4 October, the Bombay High Court delivered its judgments on a number of petitions that concerned the felling and transplanting of over 800 trees in Aarey Colony, Mumbai.

Within hours of the judgments, the Mumbai Metro Rail Corporation Limited (MMRCL), who had applied to cut these trees down to construct a metro car shed, moved in to begin cutting down the trees. Activists and protestors rushed to the scene, and tensions have continued to mount, with several of them being detained and arrested by the police.

But has the MMRCL broken the law in pressing to cut the trees so soon?

And do the Bombay High Court judgments really mean the fight of these environmentalist ‘Davids’ against industrialist ‘Goliaths’ is over? Or can they approach the Supreme Court or the National Green Tribunal?

The Immediate Question: Did MMRCL Need to Wait for 15 Days?

This issue has become the latest battleground between the activists trying to stop the felling of the trees on one side, and the MMRCL and the authorities on the other.

Soon after the MMRCL started cutting the trees down, a claim was made that this was wrong because they had to wait for 15 days before they could start felling the trees.

The concept of a 15-day wait period comes from the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975. No trees can be cut down in any urban area of Maharashtra unless the procedure set out in Section 8 of this Act is followed, which essentially involves applying to the Tree Authority for permission.

Section 8(3) of the Act says that once the application process is completed and permission is granted by the relevant Tree Authority, “no tree shall be felled until fifteen days after such permission is given”.

[NOTE: A 2016 amendment to the Act removed this line about 15 days, but it is unclear if the amendment has been brought into force, though it does still allow for objections to the permission to be made as before. However, the conduct of the BMC and arguments in the Bombay High Court seem to indicate the 15 day period is still applicable.]

WAS PROCEDURE FOLLOWED?

The MMRCL followed the procedure specified in the Act and applied to the Tree Authority of the Municipal Corporation of Greater Mumbai (better known as the BMC) for permission to cut and transplant 2,702 trees for the metro car shed to be built in the area.

Nearly one lakh objections were made to the Tree Authority against this application by the MMRCL. A Bombay High Court order dated 11 October 2018 stated that the Tree Authority had to provide a proper hearing to these objectors and specified that the Tree Authority would place orders passed by the BMC on its website at the earliest.

On 29 August, the BMC’s Tree Authority decided by a resolution to allow the MMRCL request though it reduced the number of trees to be cut to 2,185, and the number of trees to be transplanted to 461. This decision was challenged in the Bombay High Court by activist Zoru Bhatena.

The BMC’s Tree Authority issued a permission letter to MMRCL on 13 September, while the high court was hearing Bhatena’s petition, as well as a clutch of PILs filed by NGOs like Vanashakti. These other PILs were asking for a direction for the Aarey Colony area to be declared a ‘Reserved Forest’ or ‘Protected Forest’ under the Indian Forest Act, and therefore prevent the felling of any trees or other development work.

The BMC’s permission letter dated 13 September specifically directed MMRCL that no tree could be cut/transplanted until 15 days after the permission had been given.

During a hearing in the Bombay High Court in Zoru Bhatena’s case on 17 September, Bhatena’s lawyer Janak Dwarkadas drew the court’s attention to the permission letter by the Tree Authority, and pointed out that the 15-day cooling off period would end on 28 September, before the judges would have finished hearing the case.

The judges orally stated that it was understood that the MMRCL would not not cut any of the trees till 30 September and this was later extended till such time as the matters were decided by the high court.

COMPETING CLAIMS OVER 15-DAY RULE

The protestors, activists and opposition politicians insist that the MMRCL only uploaded the permission letter on the BMC website on 4 October, at 4:14 pm. Their argument is that this means the 15-day period has to run from 4 October, not 13 September – which means that the MMRCL’s actions in cutting down the trees is illegal.

Image shared by activists to show that order was uploaded on 4 October.(Photo courtesy: Preeti Sharma Menon)

To support this, they point to the observations of Justice Oka of the Bombay High Court in an oral order in April 2018, where he had said decisions of Tree Authorities of Municipal Corporations had to be uploaded online to make it easier for people to raise objections to them, and that the time period for objections had to run accordingly.

The MMRCL has strongly disputed this claim. Managing director Ashwini Bhide tweeted that the claim that 15 days’ notice was required after the Tree Authority’s order was uploaded to the website “is absolutely baseless.”

DID MMRCL GET IT WRONG?

The Quint was able to verify that links on the BMC’s website appear to indicate that the permission from the Tree Authority was last modified on 4 October.

Search results for ‘Aarey’ on BMC website.

On the other hand, Google’s search results indicate the letter was uploaded on 13 September – though admittedly this is not always accurate.

Google results for the official file number of the permission letter.

Regardless of the exact date and time the permission letter was uploaded, it is difficult to see this argument of the activists proving successful.

News reports on 14 and 15 September from Mid-Day, Hindustan Times, and Indian Express provide details of the Tree Authority permission letter, including its direction that no trees could be cut for 15 days from the day permission was given.

When it was discussed in the Bombay High Court on 17 September, there was an understanding that the 15-day period as per the notice would extend to 28 September – and the MMRCL duly agreed to not cut any trees till the high court decision. Janak Dwarkadas was not sure whether the letter had been uploaded online at the time, as she received a copy from the BMC, but at no point was this issue contested in the arguments by the petitioners.

Nor do the arguments based on the Bombay HC order of 23 April 2018 cut much ice. That order dealt with a separate provision of the Trees Act, which was being added using the 2016 amendment, Section 8(6). Under this new provision, if less than 25 trees are being cut, the Municipal Commissioner can give permission rather than the Tree Authority. As the procedure for this involved no objections from the public, Justice Oka stepped in to set out certain guidelines for how Section 8(6) would be used.

The order was also vacated by the Bombay HC on 11 December 2018, so even its persuasive value is questionable at this point of time.

Any attempt to stop the cutting of the trees in Aarey Colony using this 15-day period argument, therefore, is not likely to succeed.

Are There Any Other Options?

The fight isn’t necessarily over in this case. There are two broad ways in which it can continue:

1. The Aarey Colony area should be declared a ‘Reserved Forest’ or a ‘Protected Forest’ under the Indian Forest Act, and therefore no trees can be felled there.
2. The Tree Authority’s decision to permit the MMRCL’s request was illegal, and so MMRCL has no authority to fell any trees there.

The first issue can be argued in the Supreme Court and the National Green Tribunal, and indeed, this is exactly what the Bombay High Court said in its judgment on these issues, which had been raised in the Vanashakti petitions.

There is already a case going on in the Supreme Court dealing with the question of deciding whether or not areas like Aarey can be protected as forests under the Indian Forest Act, the TN Godavarman case. The petitioners can file an interim application in the Supreme Court in that case, and raise the same issues. This is vital, as it would allow them to counter a previous decision of the Bombay High Court which had rejected these claims, and which was the reason why the high court had to dismiss their case on 4 October.

There is also a case in the National Green Tribunal regarding similar issues, where these arguments are ongoing.

The decision to go to the Bombay High Court was actually bad strategy on the part of the petitioners, as they should have just moved interim applications in the apex court and the NGT asking for stays on the felling of the trees in Aarey Colony in the first place.

While the tree-cutting has already begun and the Supreme Court is on vacation for a week now, it should still be possible to file an urgent application before the vacation bench and seek a stay on any further deforestation. The fact that the felling cannot be reversed is a compelling argument for a stay.

The second line of attack, which would have to be in the Supreme Court, is a little more difficult, as it was already rejected by the Bombay High Court on 4 October when dismissing Zoru Bhatena’s petition. However, while the court found that there were no reasons to interfere with the Tree Authority’s order, the petitioners had been able to point out some strange irregularities in the BMC decision-making, including a mysterious U-turn in 12 days by some of the Tree Authority’s experts.

These could make a difference in the Supreme Court on appeal – and maybe be grounds for getting some sort of a stay from the apex court. At the same time, the Bombay High Court judgment does point out that the MMRCL has already been replacing almost 7 times the number of trees felled in their works, at a survival rate of 95 percent.

The permission for cutting trees in Aarey Colony also comes with conditions to plant 13,110 new trees within 30 days. The judgment also points to how the Mumbai Metro project is being monitored by the foreign agencies for environmental impact and that the project is set to lead to reductions in carbon dioxide emissions by reducing motorised transport.

This does not necessarily mean that the project will not have a bad environmental impact, but it does make it more difficult for such a challenge to succeed. The consequences of the felling may still prove sufficient to obtain a stay.