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

392                      [2023]REPORTS
               SUPREME COURT    6 S.C.R. 392              [2023] 6 S.C.R.


A             IN RE: FELLING OF TREES IN AAREY FOREST
                           (MAHARASHTRA)
                             IA No. 68608 of 2023
                                       In
B                     (Suo Moto Writ (Civil) No. 2 of 2019)
                                APRIL 17, 2023
              [DR. DHANANJAYA Y CHANDRACHUD, CJI,
               PAMIDIGHANTAM SRI NARASIMHA AND
                       J. B. PARDIWALA, JJ.]
C
             Environment – Felling of trees – By order dated 29.11.2022,
      MMRCL was permitted to move the Tree Authority on its application
      for felling of 84 trees – On 02.01.2023, MMRCL, however, sought
      permission to cut 185 trees, without moving Supreme Court – On
      15.03.2023, the Superintendent of Gardens and Tree Officer granted
D     permission for felling 124 trees and transplanting 53 trees, subject
      to the condition that 1533 trees would be planted on the property –
      The High Court held that propriety would require that trees shall
      not be felled in pursuance of the order dated 15.03.2023 until a
      clarification was sought from Supreme Court – Application for
      clarification filed in Supreme Court – Held: It was improper on the
E
      part of MMRCL to move the Tree Authority for the felling of any
      trees in excess of 84 trees – If circumstances had 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 Supreme Court – Now,
      any direction to stay permission granted on 15.03.2023 would bring
F     the public project to a standstill – Therefore, the previous order is
      modified by permitting MMRCL to act in compliance with the order
      dated 15.03.2023 – However, it would be necessary to penalize
      MMRCL for its conduct – MMRCL directed to deposit an amount of
      Rs. 10 lakhs with the conservator of forests – Conservator of Forests
      to ensure all directions issued with regard to afforestation and for
G
      transplantation of trees are complied with and submit report – I.A.
      disposed of.
           CIVIL ORIGINAL JURISDICTION: IA No. 68608 of 2023 in
      Suo Moto Writ (Civil) No. 2 of 2019.
H
                                      392
    IN RE: FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                     393


        Under Article 32 of The Constitution of India                         A
        By Courts Motion
       Tushar Mehta, Shyam Divan, Gopal Sankaranarayan, Dhruv
Mehta, Maninder Singh, C.U. Singh, Sr. Advs., Chirag Shah,
Ms. Rukhmini Bobde, Ms. Soumya Priyadarshinee, Ankit Ambasta, Amit
Kumar Shrivastava, Amlaan Kumar, Vishal Prasad, Ms. Pooja Dhar,               B
Tushad Kakalia, Sudipto Sarkar, Ms. Aditi Gupta, Ashish Wad, Sandip
Patil, Sidharth Mahajan, Ajeyo Sharma, Shyam Agarwal, M/s. J S Wad
and Co, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat
Bagla, Sourav Singh, Shree Pal Singh, Ms. Anitha Shenoy, Ms. Srishti
Agnihotri, Ms. Sanjana Thomas, Advs. for the Respondent.                      C
        The Judgment of the Court was delivered by
        DR. DHANANJAYA Y CHANDRACHUD, CJI
       1. Mumbai Metro Rail Corporation Limited1 seeks a clarification
of the order of this Court dated 29 November 2022. By the order of this       D
Court, MMRCL was permitted to move the Tree Authority for felling 84
trees. MMRCL submits that 177 trees have to be felled or, as the case
may be, transplanted for the Metro Car Shed Land at Aarey Colony
admeasuring approximately 33 hectares for Mumbai Metro Line-3.
Permission is hence sought to implement the permission which has been
granted on 15 March 2023 by the Superintendent of Gardens of the              E
Municipal Corporation of Greater Mumbai for felling 124 trees and
transplanting 53 trees.
       2. By the order of this Court dated 29 November 2022, an earlier
order directing the preservation of the status quo on felling trees was
modified, so as to permit MMRCL to move the Tree Authority on its             F
application for felling 84 trees. Following the order of this Court, an
application was initially moved on 19 December 2022 for permission to
fell 84 trees. On 2 January 2023, MMRCL, however, sought permission
to cut 185 trees, without moving this Court.
       3. By a communication dated 20 December 2022, the Deputy               G
Superintendent of Gardens intimated the Deputy General Manager
(Depot) of MMRCL that the site was jointly inspected by his staff, together
with the representatives of MMRCL on 19 December 2022. Following

1
    “MMRCL”
                                                                              H
394                 SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A     the inspection, the Deputy Superintendent of Gardens sought compliance
      on the following aspects:
                “1. Submit updated proposal for the current status of trees as per
                a fresh survey.
                2. Mention missing/dead/fallen trees and also any new addition to
B               the list of affected trees as a long period has lapsed since the last
                survey.
                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 for
C               transplantation and compensatory plantation.”
             4. On 12 January 2023, the Superintendent of Gardens issued a
      public notice indicating that 185 trees would be affected of which 124
      trees would be felled and 53 trees would be transplanted.
              5. Since the action proposed was in excess of the 84 trees which
D     were permitted to be felled by the order of this Court, a public interest
      litigation2 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 Petitioner
                has already raised objection before the Tree Authority. The
E               Petitioner can bring it to the notice of the Tree Authority, the order
                of the Apex Court. No final order has been passed by the Tree
                Authority. It is for the Tree Authority to consider whether those
                trees beyond 84 were shrubs or otherwise.”
             6. On 15 March 2023, the Superintendent of Gardens and Tree
F     Officer granted permission for felling 124 trees and transplanting 53
      trees, subject to the condition that 1533 trees would be planted on the
      property. This led to the institution of another public interest litigation 3
      before the High Court. The Division Bench, by its order dated 31 March
      2023, observed and, in our view, correctly, that this Court had granted
      permission to move the Tree Authority only to the extent of 84 trees.
G     Hence, the permission which was granted in respect of 177 trees was
      beyond the permission granted by this Court on 29 November 2022.
      The High Court held that propriety would require that trees shall not be
      felled in pursuance of the order dated 15 March 2023 until a clarification
      2
          “Public Interest Litigation (L) No 2169 of 2023
H     3
          Public Interest Litigation (L) No 8655 of 2023
IN RE: FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                           395
          [DR. DHANANJAYA Y CHANDRACHUD, CJI]

was sought from this Court. It is in view of the above factual background,      A
that the application for clarification has been filed by MMRCL.
      7. We have heard Mr Tushar Mehta, Solicitor General appearing
on behalf of MMRCL, Mr Dhruv Mehta, senior counsel appearing on
behalf of the Municipal Corporation, and Mr C U Singh and Mr Gopal
Sankaranarayanan, senior counsel appearing on behalf of the respondents.        B
       8. At the outset, the Court must take notice of the fact that when
the order dated 29 November 2022 was passed, it was on the specific
request of MMRCL that it should be permitted to pursue its application
before the Tree Authority for permission to fell 84 trees for the purpose
of the work of the ramp. The Court modified the earlier order of status         C
quo which held the field, to the above extent. If the number of trees that
are required to be felled was in excess of the permission which was
granted by this Court, to move the Tree Authority to fell 84 trees, propriety
required that an application had to be moved before this Court for its
permission and for modification of its order dated 29 November 2022.
Instead, it appears from the record that though initially the application       D
was made for felling 84 trees, subsequently, a stand was adopted that
actual number of trees would be in excess of what was originally
envisaged.
      9. As a matter of fact, it would be necessary to refer to the affidavit
which was filed by the Chief Project Manager of MMRCL before the                E
High Court of Judicature at Bombay in which the following averments
were incorporated:
       “24) In the aforesaid and such other relevant background of facts,
            in the humble submission of this Respondent, the number of
            trees that are required to be felled is an aspect which is          F
            incidental to the proposal which is pending for consideration
            before the first Respondent in respect of which the Hon’ble
            Supreme Court has granted liberty to the present
            Respondent to pursue, which is being done by the present
            Respondent. I therefore say that not permitting the answering       G
            Respondents to prosecute the present application in issue
            covering more number of trees over and above the number
            of trees incidentally mentioned in the aforesaid order of the
            Hon’ble Supreme court, in fact would amount to frustrating

                                                                                H
396             SUPREME COURT REPORTS                            [2023] 6 S.C.R.


A                   the said order and/or preventing its implementation in its
                    true letter and spirit.
                           ***                 ***         ***
            26)    I hasten to state that if the contention of the Petitioner is
                   accepted that will in fact amount to causing impediment in
B                  the effective implementation of the order of the Hon’ble
                   Supreme Court. At this juncture, it also will be apposite to
                   consider the well settled principle of law that the Judgment
                   of the Hon’ble Supreme Court and/or of this Hon’ble Court
                   cannot be read as a statute. I say that the Petitioner wants
C                  this Hon’ble Court to read the order of the Hon’ble Supreme
                   Court as a statute, which is impermissible.”
             10. The above averments in the affidavit which was filed by
      MMRCL indicate that it was well aware of the fact that the order of this
      Court continued to operate. MMRCL sought to justify its application for
D     felling of trees in excess of what was permitted by the specific directions
      of this Court. Such an exercise was clearly not contemplated in the
      order of this Court. We are constrained to observe that MMRCL has
      made an attempt to overreach the jurisdiction of this Court.
            11. The issue which, however, needs to be considered in the
E     application for clarification is whether permission should be granted in
      terms of the order which has been passed by the Superintendent of
      Gardens.
             12. In the IA for clarification, it has been submitted that subsequent
      to the order of 29 November 2022, a joint inspection took place on 19
F     December 2022 between the officers of the Municipal Corporation and
      MMRCL since a period of approximately three years and ten months
      covering four monsoon seasons had elapsed from the date of the previous
      inspection which took place on 20 March 2019. It has been stated that in
      the course of the joint inspection, it was found that some trees were
      “missing/dead/fallen” and additional plants and trees had grown since
G     the date of the previous inspection. Hence, it has been sought to be
      urged that the updated number of affected trees were estimated at 185,
      pursuant to which a public notice notice was issued by the Tree Authority
      on 12 January 2023.

H
IN RE: FELLING OF TREES IN AAREY FOREST (MAHARASHTRA)                            397
          [DR. DHANANJAYA Y CHANDRACHUD, CJI]

       13. The Solicitor General, while adverting to the contents of the         A
IA, also submitted that a compilation of relevant documents was placed
on the record of this Court on 5 April 2023.
       14. On the other hand, it has been submitted by Mr C U Singh and
Mr Gopal Sankaranarayanan that a survey was conducted in 2020 and,
as a matter of fact, it was based on the survey that MMRCL had sought            B
permission to prune a certain number of trees and to fell 84 trees. Senior
counsel submitted that this Court permitted MMRCL to move the Tree
Authority specifically with reference to the proposal for 84 trees. In
other words, it has been urged before this Court that the fresh proposal
which was made before the Tree Authority after the order of this Court
dated 29 November 2022 was clearly not bona fide having due regard               C
to the events which had transpired, resulting in the order of this Court.
       15. It was improper on the part of MMRCL to move the Tree
Authority for the felling of any trees in excess of 84 trees. If circumstances
had 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.            D
We are, hence, of the view that it would be necessary for the Court to
penalize MMRCL for its conduct. Having said that, the issue is as to
whether the permission which has been granted on 15 March 2023 should
be stayed by the Court, at the present stage. Any such direction will
have the consequences of bringing the public project to a standstill. Such       E
a course of action would not be desirable. As the Court noted in its
previous order, substantial steps have already been taken by felling over
2000 trees for the purpose of the project. In this backdrop, we modify
the previous order by permitting MMRCL to act in compliance with the
order dated 15 March 2023. However, this shall be subject to the following
directions:                                                                      F

       (i)     MMRCL shall, within a period of two weeks, deposit an
               amount of Rupees Ten Lakhs with the Conservator of
               Forests;
       (ii)    The Conservator of Forests shall ensure that all directions       G
               which have been contained in the previous orders of the
               Tree Authority for afforestation have been duly complied
               with;
       (iii)   The Conservator of Forests shall submit a report before
               this Court indicating the status of compliance in regard to
                                                                                 H
398             SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A                   the directions which have been issued up-to-date for
                    afforestation and for transplantation of trees; and
             (iv)   In order to enable this Court to have objective assistance
                    in regard to the compliance of the directions for
                    afforestation, we request the Director of IIT Bombay to
B                   depute a team for the purpose of verifying compliance. A
                    report shall accordingly be submitted before this Court within
                    a period of four weeks. The costs, charges and expenses
                    payable shall be borne by MMRCL.
             16. The IA is accordingly disposed of.
C
      Ankit Gyan                                                     IA disposed of.
      (Assisted by : Mahendra Yadav, LCRA)




D




E




F




G




H