Bombay HC rejects plea seeking stay on felling of trees in Aarey

Environmental activists dealt another blow on Saturday as a specially constituted Bench of the Bombay High Court (HC) comprising of Justice SC Dharmadhikari and Justice AK Menon rejected their plea for a stay on the felling of trees in Aarey Colony which commenced on Friday night. Earlier, the Bombay HC had dismissed all petitions challenging the action of the Tree Authority of the Brihanmumbai Municipal Corporation (BMC) in allowing the Mumbai Metro Rail Corporation Ltd (MMRCL) to cut down 2,656 trees in the area. The stay was specifically sought so that the petitioners could approach the Supreme Court. According to the Mumbai police, 38 people have been arrested while 55 others have been detained for protesting against the felling of trees. 

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Counterarguments

One of the advocates for the original petitioners contended that after the Division bench pronounced the final judgment dismissing the petitions, it expected the BMC to not immediately commence the process of cutting the trees. Citing the long Dussehra vacation of the Supreme Court (SC) which lasts till October 13, she appealed for a restraint order. However, advocate Akshay Shinde, appearing for the MMRCL, pointed out that this was an oral request which did not find resonance in the final judgement of the HC. He called upon the Bench to not grant any relief. Shinde also mentioned that public interest would suffer if the Mumbai Metro 3 was delayed. 

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The HC order 

Noting the arguments on both sides, the Bench stated that the petitioners had tried to question the cutting of trees at the site in two different legal proceedings. It noted that as the petitions had been dismissed, it would not be appropriate to pass any restraint order.  

According to the order, “Having noted the rival contentions, 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 25th 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 4th October 2019. Once all the substantive proceedings are dismissed, it would not be proper to pass any restraint order and merely on a praecipe.” 

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The court observed that it could not proceed on the grounds of any oral understanding. Acknowledging that any relief at this stage would contravene the findings of the final judgement, it rejected the plea.

The order states, “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 with 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. Hence, the request is refused.” 

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