The Aarey Car Depot Conundrum: HC paves way for Mumbai Metro Line 3 Car Shed

The Bombay High Court under Chief Justice Bharati Dange deflated the #SaveAarey agenda with its October 4th, 2019 order squashing all petitions against Mumbai Metro Line 3 project and paved way for the felling of 2185  trees, transplanting 461 trees, retaining 1045 trees and planting 13110 trees.

In Writ Petition (L) NO. 2565 OF 2019 filed by Zoru Darayus Bhathena, 

Chief Justice states in para 15 “Having noted the relevant facts we repel the contentions advanced in both petitions that inadequate time was given to the members of the Tree Authority and therefore, the deliberations which took place on 29th August 2019 are tainted in law. 

Besides, it assumes importance and therefore, we highlight that the deliberations by the members of the Tree Authority were not only at the meeting held on 29th August 2019. They had discussed the issue at the site visits held on 10th August 2019 and 20th August 2019 and what was discussed at the site has been neatly presented as a bonsai in the report prepared by the Tree Officer to which we have alluded too herein before.”

Further more the Chief Justice elucidated in para 24, “In connection with the issues of environmental concerns, it has to be noted that the project proponent has already planted 20,900 trees with GPS tagging on each plant in Sanjay Gandhi National Park and the survival rate is 95%, proved by the letter dated 27th September 2019 addressed by the Chief Conservator Forest and Director Sanjay Gandhi National Park to the Chief Project Manager of MMRCL. 

This establishes that about 7 times the number of trees to be felled have been replaced by planting saplings of trees, which process commenced two years ago. Further, the project is being financed substantially by Japan International Cooperative Agency (“JICA”) and the project is registered with The United Nations Framework for Climate Change (UNFCC). 

It is thus being monitored by Foreign Agencies on the environmental impact. The project report demonstrates that the benefits and/or reduction in Carbon di-oxide emissions by virtue of the project demonstrate that the same would be reduced by 2,61,968 tonnes over ten years because of reduced dependence on motorised transport. The aforesaid Carbon di-oxide sequestration of 2702 trees for their entire lifetime calculated at 12,79,062 kg would be compensated in 3948 fully loaded trips of Metro Trains operating.”

The Chief Justice further pointed out that “In the two companion petitions which we have dismissed today, the Greens fail even in these two petitions, but not on account of sailing their boats in the wrong channel, but on merits.”

In Writ Petition No 1487 of 2019 filled by Vanshakti, Stalin Dayanand, Kripa Janaki Raman, Rohit Joshi and Priyanka Narayan Mishra to declare ‘Aarey as a Forest’:

Chief Justice observed,  “Repeatedly, Davids (environmentalist) take on industrial Goliath’s. Relationship with nature and love for environment alone is true and all other relationships are unreal and temporary, is their belief. Their hearts are a temple of devotion to flora and fauna. In the instant case, the Davids row their boat with faith, courage and devotion in the storm of development; but directionless. The Greens fail in the instant petition because they have lost touch with the procedure to be followed as per law. 

Since we agree that the coordinate Division Bench decision of this Court ties our hands, we need not elaborate on the submissions made by the learned counsel for the respondents that 525 hectare land has already been diverted to 24 departments and the map of Aarey Colony shows that the said 24 diversions are spread over the 1280 hectare of land in Aarey Milk Colony i.e. do not form a contiguous part, requiring therefrom to be inferred that what was originally a forest has degenerated and the clock cannot be put back. 

We do not make any comments thereon for the reason the petitioners have to now swim or sink before the Supreme Court with respect to the Special Leave Petition filed by them and the proceedings before the National Green Tribunal. The Writ Petition and the PIL are accordingly dismissed but without any order as to costs.”

Following the order for the HC on October 4, 2019, Mumbai Metro Rail Corporation Limited (MMRCL) opted to execute the Tree Authority permission and HC clearance to fell 2185 trees in the evening of October 4, 2019. 

Crying foul over the decision and act of the MMRCL, the representatives of the protesting NGOs approached a new bench of the Bombay High Court:

In Writ Petition (L) No 2565 of 2019 with Public Interest Litigation (L) No 86 of 2019 filed by 

Zoru Darayus Bhathena with Writ Petition No 1487 of 2019 filled by Vanshakti, Stalin Dayanand, Kripa Janaki Raman, Rohit Joshi and Priyanka Narayan Mishra to declare ‘Aarey as a Forest’:

The Bench of Justice SC Dharmadhikari and Justice AK Menon in Para 3 of the HC Order state, “It is stated in the praecipe that the request was that no trees should be cut till the parties move the Hon’ble Supreme Court. This request is stated to be orally made and rejected. Certain oral observations are attributed to the Division Bench and further premised on that, today the matter is moved in Chambers before this specially constituted Bench to restrain the MMRCL from cutting the trees.

“We are of the firm opinion that the petitioners attempted to question the tree cutting at the site in not one, but two legal proceedings. The Division Bench has followed another order dated 25^th October, 2018 rendered in the writ petitions, one of which was also by Mr.Zoru Darayus Bhathena. Now, in the second round, all the petitions are dismissed by the detailed judgments dated 4^th October, 2019. Once all the substantive proceedings are dismissed, it would not be proper to pass any restraint order and merely on a praceipe.

There is nothing on record to show that any request was made to stay the operation, implementation and enforcement of the judgment and order, nor any specific restraint was sought. We cannot proceed on any oral understanding. Merely because another Bench is constituted, it would not be proper to grant any relief. The nature of the relief is such that if it is granted, that would directly contravene the observations, findings and conclusions in the detailed judgment.”

The judgement of the HC has deflated the agenda of the #SaveAarey protestors on the basis of the merits of the Mumbai Metro Line 3 project and the Aarey Car Shed.

In the words of Chief Justice Dhange “In the two companion petitions which we have dismissed today, the Greens fail even in these two petitions, but not on account of sailing their boats in the wrong channel, but on merits.”