On Friday, a division bench of the Bombay High Court rejected petitions asking for a block on the felling of trees in Aarey in suburban Mumbai to build a car shed for the ongoing metro project. Armed with this judgment, the Mumbai Metro Rail Corporation started cutting trees in Aarey that very night. As scores of people gathered to protest against the move, Section 144 banning unlawful assemblies was imposed in the area and several protestors were arrested. A Mumbai court rejected the bail applications of 29 of them, sending them to judicial custody till Monday.

The Bombay High Court’s decision was the trigger for the tree felling to start. “If you lose a battle in court, better to accept it honourably than to take it to street,” said Ashwini Bhide, the managing director of the metro rail corporation, in a tweet. But is this understanding correct? Was the Bombay High Court’s decision rejecting the petitions explicit approval for the authorities to start felling the trees? The answer is no.

The petitions asked the court to declare Aarey as a “reserved forest” or a “protected forest” under the Indian Forest Act, 1927. The Bombay High Court rejected the petitions on the grounds that a previous verdict of the same court in October 2018 had already rejected a similar plea. The petitioners had appealed the verdict in the Supreme Court, where the case is pending adjudication. Therefore, the correct forum to take the petition is the Supreme Court, not the Bombay High Court.

That is the basis of the Friday’s Bombay High Court judgment. The judgment did not say that the metro corporation could proceed to cut the trees. In fact, it does not say anything about the merits of the case.

Supreme Court appeal

The pending appeal before the Supreme Court asks for the Bombay High Court judgment of October 2018 to be stayed. It also wants the Supreme Court to pass an order stopping all construction work related to the metro shed in Aarey until the merits of the issue are decided by the National Green Tribunal and the Bombay High Court in separate pending litigations.

It is true that the Supreme Court has not yet granted a stay in this appeal. However, the Mumbai Metro Rail Corporation’s decision to proceed with the tree cutting even as the validity of this action is pending adjudication before the Supreme Court is opportunistic.

Other circumstantial factors contribute to this notion of opportunism: the tree felling began uncharacteristically swiftly late in the night; the act in itself is essentially irreversible; the Supreme Court has closed for the Dussehra vacations so it is not possible to move the court for relief till it reopens on October 14. Finally, the Maharashtra government has not formulated a policy laying down the parameters to determine the extent of land required to be called a “forest” (as even the Bombay High Court noted in its decision on Friday). This ambiguity has allowed the government to avoid the conservation standards required for a parcel of land that qualifies as a forest.

Trees being felled at Aarey Colony in Mumbai on Friday night. Credit: PTI

In a nutshell, Friday’s decision of the Bombay High Court did not change anything materially that could have become the basis for the Mumbai Metro Rail Corporation to start the tree felling. It would have been legally correct for it to start the tree cutting right after the Bombay High Court’s October 2018 judgment was delivered as the matter had not been appealed before the Supreme Court then. But once the matter became the subject of a pending appeal before the Supreme Court, the sudden tree cutting is highly questionable and the corporation’s intention seems mala fide. It undermines the Supreme Court’s power to effectively rule on the matter.

Unprincipled behaviour

What will happen now if the Supreme Court stays the Bombay High Court judgment of October 2018 and directs that there be no tree felling in Aarey? What will happen now if the green tribunal or the Bombay High Court declare that Aarey qualifies to be classified as forest land that requires protection under Indian environmental laws? Any such decisions will basically have little value as all the trees that require felling for the metro shed would have been axed by then.

At the very least, when the Supreme Court opens on October 14, it should take exception to this unprincipled behaviour of the Mumbai Metro Rail Corporation (and the Maharashtra government in general) and pass directions to bring the responsible officers to task.

On Saturday morning, the petitioners asked the Bombay High Court to grant an urgent stay on the felling of trees at Aarey. A special constituted bench refused to grant any relief as it would contravene Friday’s verdict of the court. Petitioner Zoru Bhatena’s lawyer submitted before the court that the bench that passed Friday’s judgment dismissing the petitions did not expect the Mumbai Metro Rail Corporation to go ahead and cut the trees. Did the Mumbai Metro Rail Corporation just conveniently misread the script?

Mridul Godha is an advocate in New Delhi.