IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)versusIN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)

                        [2022] 14 S.C.R. 435                              435


        IN RE FELLING OF TREES IN AAREY FOREST                            A
                    (MAHARASHTRA)
                      (IA No. 169860 of 2022 )
                                  In
                (Suo Moto Writ (Civil) No. 2 of 2019)
                                                                          B
                       NOVEMBER 29, 2022
     [DR. DHANANJAYA Y CHANDRACHUD, CJI AND
         PAMIDIGHANTAM SRI NARASIMHA, J.]
       Metro Projects: Mumbai Metro Rail Corporation Limited
(MMRCL) – Aarey car depot for Metro Line – Court to consider as           C
to whether it ought to permit the Tree Authority to decide application
filed by MMRCL for felling of 84 trees or alternatively, whether no
part of the Aarey car shed should be allowed to proceed pending
the final disposal of the proceedings – Held: In projects involving
large outlay of public funds, the Court cannot be oblivious to the
serious dislocation which would be caused if the public investment        D
which has gone into the project were to be disregarded –
Considerations pertaining to environment are of concern because
all development must be sustainable – Having regard to the entirety
of the material before it, if the State Government has come to the
conclusion that the original decision to allow the Metro car depot        E
for Metro Line-3 be located at Aarey has to be restored, it would
not be possible for the Court at the interim stage to stay the decision
– Moreover, a substantial number of trees pertaining to the area
which falls within the segment of the car shed and the ramp have
already been felled – 2,144 trees were felled in executing the work
pertaining to car depot, while, 212 trees were felled in connection       F
with the work of the ramp – What is now sought is permission to
apply to the Tree Authority for the felling of 84 trees pertaining to
the ramp – Without a ramp the work which has already been
completed would be of no consequence and would be wholly
ineffective – Hence, having due regard to the circumstances, MMRCL        G
should be permitted to pursue its application before the Tree
Authority for the permission to fell 84 trees for the purpose of the
ramp – However, the Tree Authority would be at liberty to take an
independent decision on the application and determine what
conditions, if any, should be imposed if it decides to grant its
permission.                                                               H
                                  435
436              SUPREME COURT REPORTS                       [2022] 14 S.C.R.


A          CIVIL ORIGINAL JURISDICTION: IA No. 169860 of 2022 in
      Suo Moto Writ (Civil) No. 2 of 2019.
            (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
            With
B            IA Nos. 104736, 104886 of 2022 and 178233 of 2019 in SMW
      (Civil) No. 2 of 2019, IA No. 105220 of 2022 in SLP (Civil) No. 14933 of
      2019 and IA Nos. 107131 and 50314 of 2022 in SLP (Civil) No. 31178 of
      2018.
             Chander Uday Singh, Ms. Anitha Shenoy, Sr. Advs., Ms. Srishti
C     Agnihotri, Ms. Sanjana Grace Thomas, Ms. Mantika Vohra, Ms. Namrata
      Sarah Caleb, Amjid Maqbool, Ms. Prerna Priyadarshini, Advs for the
      Petitioner.
             Tushar Mehta, SG, Ms. Aishwarya Bhati, ASG, Maninder Singh,
      Dhruv Mehta, Sr. Advs., Ms. Rukhmini Bobde, Chirag Shah, Kanu
D     Aggarwal, Utsav Trivedi, Ms. Soumya Priyadarshini, Ankit Ambasta,
      Amit Kumar Srivastava, Amlaan Kumar, Vishal Prasad, Ms. Ruchi Kohli,
      S. S. Rebello, Ms. Archana Pathak Dave, Ms. Deepabali Dutta, Siddhanth
      Kohli, Ishaan Sharma, Arvind Kumar Sharma, G. S. Makker, Siddharth
      Dharmadhikari, Chirag Shah, Aaditya Aniruddha Pande, Akshay Shinde,
      Abhikalp Pratap Singh, Bharat Bagla, Ms. Kirti Dadheech, Ashish Wad,
E     Mrs. Tamali Wad, Sidharth Mahajan, Ajeyo Sharma, Shyam, Ms.
      Anupama, M/s. J S Wad and Co, Tanmaya Agarwal, Ms. Pooja Dhar,
      Pratul Pratap Singh, Shree Pal Singh, Advs. for the Respondent.
            By Courts Motion.
            The Judgment of the Court was delivered by
F
            DR. DHANANJAYA Y CHANDRACHUD, CJI
             1. On 15 April 2019, this Court, while considering Petition for
      Special Leave to Appeal (Civil) No 31178 of 2018, declined to grant
      interim relief in IA No 33819 of 2019. The reliefs which were sought in
G     the application for interim relief were in the following terms:
            “a)    … stopping all activities being carried out by the Respondent
                   No-4 on the land in question inside Aarey Colony;
            b)     … directing the Respondents to carry out the activities for
                   setting up Metro Car depot at the alternative sites referred
H                  to in paragraph 3 of the present application;
    IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                            437
              [DR. DHANANJAYA Y CHANDRACHUD, CJI]

          c)     … staying the operation of the observations made at page           A
                 92 of the impugned order to the effect that Aarey Milk
                 Colony area cannot be referred to as forest; and
          d)     … any other order or further order or orders as this Hon’ble
                 Court may deem fit and proper in the circumstances of the
                 case.”                                                             B
       2. Subsequently, on 7 October 2019, this Court, while entertaining
a Suo Moto Writ Petition1, passed an order recording the statement of
the Solicitor General appearing on behalf of the State of Maharashtra
that no further trees were being felled till the next date of listing.
       3. On 5 August 2022, this Court directed that all the connected              C
writ petitions and Special Leave Petitions could be listed for final disposal.
No specific interim directions were issued in view of the position of
Mumbai Metro Rail Corporation Limited2 that no further trees had been
felled since the order dated 7 October 2019 and none be cut till the next
date of hearing.
                                                                                    D
       4. The position in regard to the permissions which have been sought
for the felling of trees in respect of the proposed depot at Aarey for
Metro Line – 3 has been summarized in a plan which has been placed
on the record by the Solicitor General. The position is elucidated below:
          A      Car Depot                                                          E
                        (i)       Permission applied on 21 July 2017;
                        (ii)      Permission granted by the Tree Authority on 13
                                  September 2019;
                        (iii)     Trees permitted to be cut – 2185; and
                                                                                    F
                        (iv)      Actual number of trees cut – 2144.
          B      Ramp area
                 (i)           Permission applied on 6 September 2017;
                 (ii)          Permission granted by the Tree Authority on 6 July
                               2018;                                                G

                 (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                                                                           H
438                    SUPREME COURT REPORTS                         [2022] 14 S.C.R.


A               C        Shunting area
                         (i)     Permission applied on 11 February 2019;
                         (ii)    Total number of trees affected – 84; and
                         (iii)   Grant of permission awaited.
B            5. The IA which has been moved by MMRCL3 is for permission
      to enable it to move the Tree Authority for the felling of 84 trees required
      for the purpose of proceeding with the shunting segment of the Aarey
      car depot. For convenience of reference, the relief which has been sought
      in IA moved by MMRCL is extracted below:
C               “a)      Direct/permit the Tree Authority to decide the application
                         dated 11.02.2019 filed by MMRCL pending before it and
                         pass final order thereof with respect to cutting of the 84
                         trees under The Maharashtra (Urban Areas) Protection and
                         Preservation of Trees Act 1975 located on Metro Car Shed
D                        Land at Aarey Colony admeasuring approximately 33
                         hectares for the Mumbai Metro Line-3 project in Mumbai
                         and permit, MMRCL to implement such decision of the Tree
                         Authority, as the case may be;”
            6. Apart from the IA which has been moved by MMRCL, this
      Court is seized of the following IAs:
E
                i.       IA No 104886 of 2022 in Suo Moto Writ Petition (Civil) No
                         2 of 2019seeking, inter alia,that (a) the order dated 21 July
                         2022 issued by the Urban Development Department of the
                         Government of Maharashtra be kept in abeyance as it
                         permits work on the car depot at Aarey, (b) the Government
F
                         of Maharashtra submit the Wildlifereport on the Aarey Car
                         Shed plot and to grant protection to wildlife on the said plot
                         and declare the area as a forest;
                ii.      IA No 178233 of 2019 in Suo Moto Writ Petition (Civil) No
                         2 of 2019 seeking inter alia,the issuance of directions to
G                        the Government of Maharashtra to declare Aarey as a forest
                         and direct that no trees be cut;
                iii.     IA No 107131 and IA 50314 of 2022 in Special Leave
                         Petition (Civil) No 31178 of 2018 seeking, inter alia, a

H     3
          IA No 169860 of 2022 in Suo Moto Writ Petition (Civil) No 2 of 2019
    IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                         439
              [DR. DHANANJAYA Y CHANDRACHUD, CJI]

               direction restraining the respondents from carrying out all       A
               work of construction within the 33 hectares area implicating
               the Aarey car project;
        iv.    IA No 105220 of 2022 in Special Leave Petition (Civil) No
               14933 of 2019 for restraining the respondents from carrying
               out any consequential activities, including clearing of plants,   B
               excavation of vegetation or proceeding with any construction.
       7. In order to appreciate the salient facts insofar as they pertain
to the IAs before this Court, it would be appropriate, at this stage, to
advert briefly to the course of events.
      8. On 6 January 2021, the Government of Maharashtra constituted            C
a committee chaired by the Chief Secretary for examining whether the
proposed car depot at Aarey should be realigned and relocated. The
Committee submitted its report on 21 January 2021. The Committee
was of the considered view that the location of the car depot at Aarey
should be realigned so that an integrated car depot would be set up both
                                                                                 D
for Metro Lines – 3 and 6 at Kanjurmarg. The report of the Committee
was accepted by the State Government on 23 March 2021.
        9. On 17 March 2022, the Union Government in the Ministry of
Housing and Urban Affairs addressed a communication to the Chief
Secretary of the Government of Maharashtra, following a meeting which
                                                                                 E
was convened on 23 September 2021 between the Ministry and the
officials of the State Government “to discuss the Aarey depot issue which
is seriously hampering the progress of Metro Line-3 project”. The letter
recorded that a decision was taken that Delhi Metro Rail Corporation4
and M/s SYSTRA, the consultant appointed by MMRDA, would hold a
meeting to sort out technical issues in the event that the depot was shifted     F
to Kanjurmarg. Thereafter, following the meetings between DMRC and
SYSTRA, DMRC submitted a report on 11 February 2022. Both DMRC
and SYSTRA have agreed that there are ‘inherited’ operational and
maintenance constraints in the proposal to have a common depot for
two or more lines at Kanjurmarg. Some of the major observations in the
report are summarized in the communication dated 17 March 2022 and               G
are extracted below:
        “(i)    The simulation exercise done by M/s SYSTRA is incomplete
               as no simulation internal to depot has been done. M/s
4
    DMRC                                                                         H
440                SUPREME COURT REPORTS                        [2022] 14 S.C.R.


A                    SYSTRA had informed that simulation internal to depot may
                     require involvement of signalling contractor, which was
                     beyond their scope of work. Thus, it could not be checked
                     by DMRC that proposed plan of induction of trains from
                     depot could really materialise or not. DMRC has recorded
                     their own experience that inducting trains from the depot
B
                     consistently at a frequency of 4 minutes continuously for 3
                     or more hours is a challenging task.
            (ii)      There is a compromised time of maintenance window due
                     to running of Line-3 trains for 7.5 km on Line-6 network
                     upto Kanjurmarg. This will also have an adverse impact on
C                    restoration time in the event of failure of Line-3 train during
                     regular operation period.
            (iii)     There is sub optimal utilization of trains as at least two
                     trains are to be kept as hot standby at SEEPZ village station.

D           (iv)      100% punctual operation throughout the trips all the time
                     in a day is rarely possible in real life operations as lot of
                     factors affect train movement.Any deviation in train
                     movement will lead to detention at L-3 & 6 connections
                     while transferring of trains between L-3 & 6. Thus, the
                     detention of trains mid-section seems real and unavoidable.
E
            (v)      There is a requirement of same signalling system from the
                     Line-3 supplier for Line-6 and thus related compulsions.”
             10. In the above backdrop, the communication of the Union
      Ministry of Housing and Urban Affairs noted that the proposed integration
      of two lines at SEEPZ village station would be a permanent risk to reliable
F
      train operations of both the lines. DMRC’s report had suggested that the
      decision to adopt an integrated depot for Metro Lines – 3 and 6 should
      be taken only if it is absolutely unavoidable even with possible mitigation
      measures in the present plans at Aarey. The communication also records
      that the conclusion of the report of the Committee chaired by the Chief
G     Secretary to the Government of Maharashtra that the current land and
      design of the depot at Aarey would be insufficient to cater to the project
      design life requirement of Line-3, thereby necessitating an alternative
      location at Kanjurmarg is factually incorrect. In the opinion of the Union
      Ministry of Housing and Urban Affairs, the land at Aarey is sufficient to
      meet the current and projected requirement up to 2055 and, hence, it
H
 IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                           441
           [DR. DHANANJAYA Y CHANDRACHUD, CJI]

would not be prudent to shift the location to Kanjurmarg at the present         A
stage 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 and
              maintenance bottlenecks in the functioning of the network
              for the entire lifecycle of a high capacity metro line; and       B

      (iii)   While the land at Aarey is free from encumbrances, the
              land at Kanjurmarg is under litigation.
      11. Consequently, the State Government was requested to
reconsider its decision to shift the depot of Line-3 from Aarey colony to       C
Kanjurmarg and to allow the restarting of the depot work of Line-3 at
Aarey colony for expeditious completion of the project in public interest.
     12. Responding to the above communication, the State
Government has on 21 July 2022 taken a decision to allow the work of
the Metro Car Depot at Aarey to proceed.
                                                                                D
       13. Appearing on behalf of MMRCL, the Solicitor General has
highlighted that:
      (i)     The overall cost of the Metro project ranges in the vicinity
              of Rs 23,000 crores, which is now projected to escalate to
              Rs 37,000 crores;                                                 E
      (ii)    Nearly 95 per cent of the project work has been completed;
      (iii)   Permission had already been granted for the felling of 2,185
              trees envisaged in the segment pertaining to the car depot
              and 235 trees for the segment pertaining to the ramp, while,
              permission has been sought of this Court to move the Tree         F
              Authority for the felling of 84 trees which would be
              occasioned in the segment pertaining to shunting; and
      (iv)    Having regard to the overall contours of public interest
              bearing on the project, the orders passed by this Court on 7
              October 2019 and 5 August 2022 may be clarified to the            G
              extent that MMRCL may be allowed to move the Tree
              Authority for the grant of felling permission.
       14. While opposing these submissions, Mr C U Singh and Ms
Anitha Shenoy, senior counsel, have urged that apart from rejecting the
relief which has been sought by MMRCL, there are valid grounds for this         H
442                SUPREME COURT REPORTS                      [2022] 14 S.C.R.


A     Court to not allow the decision of the State Government which was
      taken 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 amounts
                     to a reversal of a considered view which was taken by the
B                    State Government on 23 March 2021, while accepting the
                     report of the Expert Committee chaired by the Chief
                     Secretary dated 21 January 2021;
            (ii)     The decision of the Committee was based on cogent
                     considerations, including the fact that the capacity of the
C                    proposed car shed at Aarey would be exhausted in 2031
                     leading to a further need for the felling of approximately
                     1000 trees should an expansion proposal be taken up in the
                     future;
            (iii)    Once a considered decision was taken by the State
D                    Government to accept the report of the Committee chaired
                     by the Chief Secretary, there was no valid basis to rescind
                     the decision in the absence of scientific material which
                     would indicate that a contrary view was more desirable;
                     and
E           (iv)     The area in question is sensitive ecologically having due
                     regard to its proximity to the Sanjay Gandhi National Park,
                     which is rich in bio-diversity.
             15. Ms Anitha Shenoy, senior counsel, while buttressing the above
      submissions, urged that the project involving the construction of a Metro
F     Line has high pollution potential falling within the red category. Moreover,
      it was submitted that on 12 October 2020, a notification has been issued
      under which 286 hectares of land have been notified as forests. Senior
      counsel submitted that, in this backdrop, the decision of the State
      Government to the effect that full capacity utilization of the car shed at
G     Aarey would be reached in 2031 necessitated the realignment of the car
      shed at Kanjurmarg. Hence, it was urged that there was no valid basis
      for the State Government to rescind its decision.
            16. While analyzing the merit of the rival submissions, it must, at
      the outset, be noted that the validity of the judgment dated 26 October
H     2018 and of the two judgments dated 4 October 2019 would fall for
 IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                          443
           [DR. DHANANJAYA Y CHANDRACHUD, CJI]

determination when the Special Leave Petitions are taken up for final          A
disposal.
        17. This Court, by an order dated 15 April 2019, declined to grant
interim relief. At that stage, when the Court proceeded to decline interim
relief, the State Government had filed its affidavit indicating the inherent
public interest involved in the execution of the project. In regard to the     B
alternate site, the affidavit of the State Government explained that in
November 2011, a detailed project report for the Metro corridor had
been prepared. A six-MemberTechnical Committee chaired by the
Metropolitan Commissioner, MMRDA was constituted to consider
alternate sites. The Technical Committee submitted its report on 11 August
2015 and considered the various sites, including the following:                C

      “a)     Backbay Reclamation, Colaba
      b)      Mumbai Port Trust
      c)      Mahalaxmi Race Course
                                                                               D
      d)      Dharavi
      e)      Bandra Kurla Complex
      f)      Mumbai University, Kalina
      g)      Aarey Colony
                                                                               E
      h)      Sariput Nagar
      i)      Kanjur Marg.”
      18. In its affidavit, the State Government submitted that after
considering the options above, the Committee found that three sites at or
beyond the terminal points meet the requirements. Thereafter, the              F
Technical Committee submitted its report recommending as follows:
      “i)     The Metro-Ill car-depot be located at Kanjur Marg, with
              only a small stabling unit at Aarey Depot;
      (ii)    In case the land was not made available at Kanjur Marg
                                                                               G
              within a period of three months then the car-depot was
              proposed to be located at Aarey Colony within a 20.82
              hectare area; and
      (iii)   Measures would have to be taken to mitigate environment
              damage at Aarey Colony.”
                                                                               H
444            SUPREME COURT REPORTS                          [2022] 14 S.C.R.


A            19. The report of the Technical Committee was accepted by the
      State Government on 16 October 2015. The State Government explained
      the steps which were taken thereafter pursuant to the report of the
      Technical Committee. This Court, after having considered the application
      for interim relief, considered it appropriate to decline relief.
B            20. Now, it is in this backdrop that this Court must consider as to
      whether it ought topermit the Tree Authority to decide the application
      dated 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 that
      no part of the Aarey car shed should be allowed to proceed pending the
      final disposal of the proceedings.
C
             21. In such projects involving large outlay of public funds, the
      Court cannot be oblivious to the serious dislocation which would be caused
      if the public investment which has gone into the project were to be
      disregarded. Undoubtedly, considerations pertaining to the environment
      are of concern because all development must, it is well settled, be
D
      sustainable.
             The State Government which had taken a decision in the first
      place to accept the Technical Committee report in 2015, later on, changed
      its view while deciding upon the realignment of the Metro car project at
      Kanjurmarg. Subsequently, various aspects were pointed out to the State
E     Government by the communication dated 17 March 2022 of the Union
      Ministry of Housing and Urban Affairs. At this stage, it cannot be gainsaid
      that the factors which have been set out in the communication dated 17
      March 2022 cannot be disregarded. Having regard to the entirety of the
      material before it, if the State Government has come to the conclusion
F     that the original decision to allow the Metro car depot for Metro Line-3
      be located at Aareyhas to be restored, it would not be possible for the
      Court at the interim stage to stay the decision.
             22. Moreover, it must also be noted that a substantial number of
      trees pertaining to the area which falls within the segment of the car
G     shed and the ramp have already been felled. Consequently, this Court
      was apprised on 7 October 2019 and 5 August 2022 that no further trees
      were required to be felled. As already noted earlier, 2,144 trees were
      felled in executing the work pertaining to car depot, while, 212 trees
      were felled in connection with the work of the ramp. What is now sought
      is permission to apply to the Tree Authority for the felling of 84 trees
H
 IN RE FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                           445
           [DR. DHANANJAYA Y CHANDRACHUD, CJI]

pertaining to the ramp. It needs no emphasis that without a ramp the            A
work which has already been completed would be of no consequence
and would be wholly ineffective. Hence, having due regard to the above
circumstances, we have arrived at the conclusion that MMRCL should
be permitted to pursue its application before the Tree Authority for the
permission to fell 84 trees for the purpose of the ramp. We clarify that
                                                                                B
the Tree Authority would be at liberty to take an independent decision on
the application and determine what conditions, if any, should be imposed
if it decides to grant its permission.
      23. The order of this Court, which has the effect of directing the
preservation of status quo on the felling of trees, shall accordingly stand
modified to the above extent thereby permitting the MMRCL to move               C
the Tree Authority on its application for felling of 84 trees. The state
government 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 and        D
final decision on 7 February 2023.

Devika Gujral                                                IAs disposed of.
(Assisted by : Shubhanshu Das, LCRA)

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