'Directionless Davids Taking on Industrial Goliaths': Bombay HC's take on Greens' Fight to Save Aarey
A bench headed by Chief Justice Pradeep Nandarjog said the green crusaders had failed in the four petitions on merit, not on account of sailing their boats in the wrong channel.
File photo of Bombay High Court.
Mumbai: To the dismay of green crusaders, the Bombay High Court on Friday dismissed all four petitions pertaining to Aarey forest, including a plea filed by activist Zoru Bathena that challenged the decision of Brihanmumbai Municipal Corporation (BMC)'s tree authority to cut 2,700 trees to make way for a metro card shed project.
In a 27 page-order on Zoru’s petiton, a division bench, headed by Chief Justice Pradeep Nandarjog, observed, “The greens fail in these petitions, but not on account of sailing their boats in the wrong channel, but on merits.”
Counsel for petitioner Janak Dwarkadas during arguments had raised concerns about the way in which the tree authority meeting was held in the last week of August and how due process was not followed while arriving at the decision and that the whole process lacked application of mind.
He had said thousands of objections received from the public were not placed before the tree authority and that some of the experts who voted in favour at the meeting were actually coerced into doing so and were in reality, against the felling of trees.
He had also questioned the data given out by the Mumbai Metro Rail Corporation Limited (MMRCL) about the number of trees to be cut saying that it changed and increased dramatically over the last five years.
The court, in its judgment, said, "There is no merit in the contention that the one lakh objections received from the public were not placed before the tree authority. The report summarises the objections and the response of the project proponent. Surely, one lakh objections, most of which were repetitive was not expected to be placed before the tree authority. The argument that it was inconceivable that the experts who opposed the proposal in writing on 13th August 2019 and 17th August 2019 would change their view is an argument which overlooks the fact that all proposals of the experts, except two, were accepted.”
The court also stated that as saplings grew into tree years over the years and because the exact size of plot was being deliberated, there was a fluctuation in data of trees.
Pointing to the environmental concerns raised by the petitioner, the court said, “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 seven times the number of trees to be felled have been replaced by planting saplings of trees and the which process commenced two years ago. The project report demonstrates that the benefits and/or reduction in carbon di-oxide emissions by virtue of the project that the same would be reduced by 2,61,968 tonnes over 10 years because of reduced dependence on motorised transport. The aforesaid carbon di-oxide sequestration of 2,702 trees for their entire lifetime calculated at 12,79,062 kg would be compensated in 3,948 fully loaded trips of metro trains operating."
‘What Was Originally a Forest Has Degenerated’
While dismissing a petition filed by Vanashakti NGO and others to classify Aarey as a forest land, the chief justice said, “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 1,280 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.” A special leave petition in the same matter is pending before the Supreme Court.
The court, while calling the environmentalists directionless, further said, "Repeatedly, Davids (environmentalist) take on industrial Goliaths. 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."
On the petition stating that Aarey is a flood plain and hence, should be devoid of any construction activities, the judge noted, “Since the report has been called for by the Supreme Court and the issue of flood plain of the Mithi river is being considered by the Supreme Court, on the principle of Comity the Petitioner ought to approach the Supreme Court by filing an application. The water policy relied upon does not expressly prohibit construction on a flood plain. It lays emphasis to protect flood plain while planning constructions.”
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