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IN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION No. OF 2019

...Petitioner

Tree Authority, Mumbai & others ...Respondents

INDEX

Sr. Particular Page

No. No.

1. Proforma Sheets I-III

2. Synopsis A-B
3. Memo of Petition 1-10
4. Vakalatnama 11-12
5. Memorandum of Registered Address 13
6. List of Documents 14
7. Exhibit-A Judgement dated 19.07.2019 in 15-36
PIL(L) No. 60 of 2019.
8. Exhibit-B Petitioner's objection letter dated 37-43
08.07.2019
9. Exhibit-C Minutes of Meeting dated 29.08.2019, 44-66
with Impugned Resolution, with translation
10. Exhibit-D written input dated 13.08.2019 from 67
three experts
11. Exhibit-E written input dated 17.08.2019 from 68
one expert
12. Exhibit-F protest letter dated 13.08.2019, with 69-75
translation, of Corporator Kaptan Malik
13. Exhibit-G statement dated 31.08.2019 issued by 76
expert member Dr Sashirekha Suresh Kumar
14. Affidavit in support 77
15. Affidavit cum Undertaking 78
16. Certificate from the Advocate 79

Mumbai Advocate for Petitioner

Dated 03.09.2019
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION No. OF 2019

...Petitioner

Tree Authority, Mumbai & others ...Respondents

Office notes. Office memorandum of Coram Court’s or judges

appearance. Court’s orders or directions and orders
prothonotary orders.
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Office notes. Office memorandum of Coram Court’s or judges

appearance. Court’s orders or directions and orders
prothonotary orders.
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Office notes. Office memorandum of Coram Court’s or judges

appearance. Court’s orders or directions and orders
prothonotary orders.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. OF 2019
...Petitioner

...Respondents
SYNOPSIS
CHALLENGE

This Petition has been filed to challenge the Impugned Resolution

dated 29.08.2019, passed by the Respondent No.1 Tree Authority,
approving the removal of 2646 trees at Aarey, situated at Andheri E,
Mumbai, in breach of the Judgment of this Hon'ble Court, dated
19.07.2019 in PIL(L) No. 60 of 2019. The Respondent No. 1 Tree
Authority has been set up to protect and preserve the trees of
Mumbai and not to illegally sanction their destruction. This Petition
has been filed to protect the tree cover in Mumbai from such illegal
destruction.

LIST OF DATES

S. Date Event Exhibit

No / Page
No
1. 30.06.2019 Public Notice issued by Respondent No.
1 Tree Authority seeking suggestions
and objections from the public in
respect of removal of 2702 trees at
Aarey (2238 cut & 364 transplant)
2. 08.07.2019 The Petitioner filed his written Ex-B
objections. Over one lakh objections
were filed by members of the public.
3. 08.07.2019 The Tree Officer heard the objections of
the Petitioner and approx 500 other
citizens who attended the public hearing
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4. 19.07.2019 This Hon'ble Court passed Judgement in Ex-A

PIL(L) No. 60 of 2019 filed by this
Petitioner against the Respondent No. 1
Tree Authority & Ors.
5. 29.08.2019 The Respondent No. 1 Tree Authority
held a meeting to discuss the removal of
2646 trees at Aarey (2185 cut & 461
transplant)
6. 29.08.2019 The Respondent No. 1 Tree Authority Ex-C
passed the Impugned Resolution
approving the removal of 2646 trees at
Aarey, in breach of said Order dated
19.07.2019 in PIL(L) No. 60 of 2019
7. 03.09.2019 Hence this Petition

Relevant Statutes:

The Constitution of India, 1950

Maharashtra (Urban Areas) Protection and Preservation of Trees

Act, 1975 and Rules, 2009.

Case Laws:

Shall be submitted at the time of arguments.

Mumbai, Dated: Advocate for Petitioner

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. OF 2019

In the matter of Article 21, Article

48-A, Article 51-A [g] and Article
226 of the Constitution of India,
1950;

And

In the matter of Maharashtra

(Urban Areas) Protection and
Preservation of Trees Act, 1975;

And

In the matter of Maharashtra

(Urban Areas) Protection and
Preservation of Trees Rules 2009;

And

In the matter of Resolution dated

29.08.2019 passed by Respondent
No. 1 Tree Authority approving the
removal of 2646 trees at Aarey
("Impugned Resolution")

) ...Petitioner

Versus
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1. Tree Authority, Mumbai )

MCGM, Mahapalika Marg, Mumbai-01 )

2. Mumbai Metro Rail Corporation Ltd )

Plot R-13, E Block, BKC, Mumbai-51 )

3. State of Maharashtra )

Through office of the Government Pleader )

Bombay High Court,Mumbai 400001 ) ...Respondents

TO

THE HONOURABLE CHIEF JUSTICE

AND THE HONOURABLE PUINSE JUDGES OF

THE HONOURABLE HIGH COURT AT BOMBAY

HUMBLE PETITION OF THE

PETITIONER ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. The Petitioner is a citizen of India and is concerned about the

tree cover in the city of Mumbai and elsewhere. The Petitioner had
challenged the constitution and functioning of the Tree Authority
by way of PIL No. 46 of 2015 and PIL(L) No. 60 of 2019.

2. The Respondent No.1 herein is the Tree Authority of

Mumbai constituted under the provisions of the Maharashtra
(Urban Areas) Protection and Preservation of Trees Act, 1975
[hereinafter referred to as the “Trees Act”].

3. Respondent No. 2 is the Mumbai Metro Rail Corporation Ltd

who had submitted the impugned tree removal proposal to
Respondent No. 1 for approval.
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4. Respondent no. 3 is the State of Maharashtra which has

enacted the Trees Act.

5. As the Respondent No. 1 Tree Authority was not complying

with the provisions of the Trees Act & Rules, with respect to its
constitution/nomination of experts, the Petitioner had challenged
the same before this Hon'ble Court. By Order dated 24.10.2018 in
Notice of Motion No. 384 of 2018 in PIL No.46 of 2015, this
Hon'ble Court was pleased to restrain the Respondent No. 1 Tree
Authority from taking any decisions on tree removal applications
received u/s 8(2) of the Trees Act. The Respondent No. 1 Tree
Authority was permitted to apply for modification/vacating the
said Order upon appointing the appropriate number of experts u/s
3(3) of the Trees Act. The Petitioner craves leave to refer to and
rely upon the said Order dated 24.10.2018 when produced.

6. Pursuant to the said Order dated 24.10.2018, the Respondent

No. 1 filed NM No. 181 of 2019 in PIL No. 46 of 2015 seeking
permission of this Hon'ble Court to resume functioning, as they
had appointed/nominated experts. As there was an issue as to the
number of expert members required, by Order dated 18.06.2019,
this Hon'ble Court permitted the Petitioner to file a substantive
Petition to decide the issue. The Petitioner craves leave to refer to
and rely upon the said Order dated 18.06.2019 when produced.

7. The Respondent No. 1 challenged the said Order dated

24.10.2018 & 18.06.2019 before the Hon'ble Supreme Court. By
Order dated 04.07.2019 the Hon'be Supreme Court declined to
interfere and directed Respondent No. 1 to approach this Hon'ble
Court. The Petitioner craves leave to refer to and rely upon the said
Supreme Court Order dated 18.06.2019 when produced.

8. The Petitioner filed PIL(L) No. 60 of 2019 to decide the

issue as to the number of experts nominated on the Tree Authority
qua the number of Corporators.
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9. By Judgement dated 19.07.2019 in PIL(L) No. 60 of 2019,

this Hon'ble Court was pleased to declare that five nominated
experts was a proper constitution of Respondent No.1's Tree
Authority. Hereto annexed and marked as EXHIBIT-A is a copy
of the said Judgement dated 19.07.2019 in PIL(L) No. 60 of 2019.

10. This Petition has been filed due to a brazen breach by

Respondent No. 1 in complying with the said Judgement dated
19.7.2019, in particular with Para No. 26 therein, viz:
26. The very fact that the legislature has found it necessary
to include expert members inheres that their expert opinion must
be valued and should become an essential facet of decision
making. As per Section 8 of the Trees Act, the Tree Authority deals
with objections received under the public notice given by the Tree
Officer and a decision is taken after giving a hearing to the person
who has objected. That hearing is given when an objection is
raised would indicate that a decision has to be in must contain
the reason why the objection is being overruled. Section 14 of the
Trees Act also provides for an appeal from an order passed under
Section 9 or 10 by the Tree Officer to the Tree Authority. For this
appeal, hearing is statutorily provided, and the decision is made
final. Thus this decision has to be reasoned. This being the
scheme of Sections 8 and 14 of the Trees Act and the purpose for
which expert members are included, it is necessary that the expert
members give their inputs in writing. The scientific input cannot
be in the form of an oral suggestion. The Tree Authority must
discuss the input of the expert members for taking an informed
decision as envisaged under Section 3 read with Sections 8 and 14
of the Trees Act. Considering the function of the Tree Authority
and the object of the Trees Act, if the Tree Authority is to differ
from the expert's input, it must record reasons. If the scientific
input is not even referred to in the decision making, then the
purpose for which the expert members are included would be
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rendered meaningless.
(Emphasis added)

FACTS LEADING TO PRESENT CHALLENGE TO

IMPUGNED RESOLUTION ARE AS UNDER:

11. By a Public Notice dated 30.06.2019, the Respondent No. 1

called for suggestions and objections from members of the public
on a proposal by Respondent No. 2 seeking to remove 2702 trees
at Aarey, in Andheri E, Mumbai (2238 trees proposed to be cut &
464 trees proposed to be transplanted).

12. The Petitioner filed his detailed objections with Respondent

No. 1, vide letter dated 08.07.2019 raising 14 points. A copy of
Petitioner's objection letter dated 08.07.2019 is annexed hereto as
EXHIBIT-B. It will not be out of place to record that over one
Lakh citizens filed their objections to the said proposal.

13. On 08.07.2019, the Tree Officer of Respondent No.1

Authority conducted a public hearing, where the Petitioner and
approx 500 other citizens attended and once again raised their
objections.

14. On 29.08.2019, the Respondent No. 1 Tree Authority held a

meeting to decide the said proposal. The said proposal tabled
before Respondent No. 1 is of 986 pages. The said proposal tabled
was for removal of 2646 trees at Aarey (2185 cut & 461
transplant), which is a reduction of 56 trees from the original
proposal. The Petitioner craves leave to refer to and rely upon the
said proposal tabled, when produced.

15. At the said meeting, a Resolution was passed permitting the

said proposal for removal of 2646 trees at Aarey. The said proposal
was passed by a majority of 8 to 6, with 3 nominated experts
allegedly supporting the proposal, with 2 members walking out
and with 2 members absent. Hereto annexed and marked as
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EXHIBIT-C is a copy of the Minutes of Meeting dated

29.08.2019, containing the Impugned Resolution, with translation.

16. As is evident from the said Minutes, the orders of this

Hon'ble Court in Judgement dated 19.07.2019 in PIL(L) No. 60 of
2019 have simply not been complied with, viz:
i) There is no mention of nor reasons recorded as to why the
objections raised by the Petitioner and other citizens have been
overruled;
ii) There was no discussion regarding the input by the experts;
iii) There is no discussion as to why the members disagreed with
the opinion of the expert members;
iv) The scientific input of the expert members have simply not
been considered, thus rendering the meeting meaningless.

17. The written input of the experts had been tabled before the
meeting, at Page Nos 961 & 962 of the proposal.

18. Three experts, Dr Deepak Apte, Dr Sashirekha Sureshkumar

and Dr Chandrakant Salunkhe, vide their common letter dated
13.08.2019 had recorded that; they did not have adequate time to
examine all tree details; that their observations are by no means
final recommendations; that Terminalia bellerica/Beheda trees
need to retained as they are unique/heritage trees; that Adensonia
digitata trees should be transplanted instead of being cut; that all
trees along the adjoining road, not falling in construction area,
should be retained; that indigenous trees should be retained or
transplanted; that any trees above 50 feet height should be
retained; that there were so many discrepancies in the tree
inventory data of the site from 2012, 2014 & 2017 to the extent of
1652, 2298 & 3691 respectively; that there is a lot of confusion in
the common name/scientific name of the trees. Hereto annexed
and marked as EXHIBIT-D is a copy of written input dated
13.08.2019 from three experts.
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19. One expert, Mr. Subhash K.Patne, vide his letter dated
17.08.2019 recorded that cutting 2238 (61%) of green cover is too
high and that out of trees to be cut 623 Subabul trees can be
transplanted. Hereto annexed and marked as EXHIBIT-E is a
copy of written input dated 17.08.2019 from one expert.

20. It is relevant to state that no written input from the fifth

expert, Mr.Manohar Sawant, was tabled along with the impugned
proposal.

21. It is clear that the inputs submitted by the expert/nominated

members were neither discussed nor deliberated at the impugned
meeting.

22. It will not be out of place to record that the impugned

resolution was allegedly passed with a majority of 8 to 6, where
one Corporator member, Kaptan Malik, who had opposed the
proposal in writing, allegedly voted in favour of the proposal; and
one expert member, Dr Sashirekha Suresh Kumar, who allegedly
voted for the proposal, has come on record to say that she never
recommended the felling of trees at Aarey nor does she endorse
such a decision. She has also recorded that no due process has
been followed for the assessment of the site and that the
recommendations made by her and her colleagues had not been
considered when passing the impugned Resolution. Hereto
annexed and marked as EXHIBIT-F is a copy of written protest
letter dated 13.08.2019 of Corporator Kaptan Malik, with
translation. Hereto annexed and marked as EXHIBIT-G is a copy
of statement dated 31.08.2019 issued by expert member Dr
Sashirekha Suresh Kumar.

23. It will also not be out of place to state that the present
proposal has been floated from time to time right from year 2014
and withdrawn/postponed due to stiff opposition. On the present
occasion the proposal has been passed by fraudulent methods.
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24. GROUNDS
A) The Impugned Resolution has failed to contain reasons as to
why the Petitioner's objections were overruled;
B) The Impugned Resolution was passed without receiving written
inputs from all experts;
C) The Impugned Resolution was passed without discussing the
inputs given by the experts;
D) The Impugned Resolution failed to record reasons as to why it
differed with the expert's inputs;
E) The Impugned Resolution failed to refer to the scientific inputs
rendering these inputs meaningless.
F) The Impugned Resolution was passed in breach of the orders of
this Hon'ble Court in Judgement dated 19.07.2019 in PIL(L) No.
60 of 2019.
G) The Impugned Resolution was passed in haste due to the
impending assembly elections and the model code of conduct
likely to come into effect.
H) The Impugned Resolution suffers from non-application of
mind.

25. The Petitioner has filed this petition on the limited ground of
breach of order of this Hon'ble Court in Judgement dated
19.07.2019 in PIL(L) No. 60 of 2019. The Petitioner is at present
challenging the impugned resolution on the ground that the
decision making process was flawed and suffered from non-
application of mind and was in violation of this Honourable
Court’s Judgment and order dated 19.07.2017 in PIL [L] No. 60 of
2019. The Petitioner has not gone into the merits of his objections
to the impugned proposal and craves leave of this Honourable
Court to file a substantial petition on merits, should the need arise
in future.

26. Till date the Respondent No. 1 has not issued any tree felling
permission to Respondent No. 2, pursuant to the impugned
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resolution (copy of such permission letter is required to be

uploaded on MCGM website, where no such permission appears).
Therefore, no reliefs are being sought against Respondent No.2 in
the present Petition at present.

27. The issues raised in this Petition have a substantial impact on

the environment. If the reliefs as prayed for are not granted, there
will be widespread environmental damage to Mumbai city, which
cannot be compensated in terms of money.

28. The Petitioner has not filed any suit, application, petition or
proceeding in any court in India for similar reliefs.

29. The Petitioner has affixed the requisite court fees of Rs.
______/- to this petition.

30. The impugned Resolution has been passed in Mumbai. The

entire cause of action has arisen within the ordinary original civil
jurisdiction of this Honourable Court hence this Honourable Court
has jurisdiction to receive, try and determine the present petition.

31. The Petitioner is not guilty of delay or laches in preferring

this petition.

32. The Petitioner does not have any equally efficacious

alternative remedy other than the present petition and the reliefs
prayed for in the present petition, if granted, would suffice to meet
the ends of justice.

33. The Petitioner will rely upon documents, a list whereof is

annexed hereto.

The Petitioner therefore prays:

(a) that this Honourable Court be pleased to issue an appropriate

writ, order or direction under Article 226 of the Constitution
of India and call for the papers and proceedings relating to
the Impugned Resolution dated 29.08.2019, as recorded in
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the Minutes of Meeting annexed and marked at Exhibit-C to

the petition, passed by Respondent No.1, approving the
Respondent No. 2's proposal to remove 2646 trees at Aarey
(2185 cut & 461 transplant) and after examining the legality
and propriety thereof be pleased to quash the same;
(b) that Pending the hearing and final disposal of this petition,
this Honourable Court may be pleased to stay the Impugned
Resolution dated 29.08.2019;
(c) that Pending the hearing and final disposal of this petition,
this Honourable Court may be pleased to restrain the
Respondent No. 1 from issuing a tree removal permission
letter to Respondent No. 2, pursuant to the Impugned
Resolution dated 29.08.2019;
(d) For costs;
(e) For such other and further reliefs as this Honourable Court
may deem fit in the nature and circumstances of the case.

Mumbai
Date: Petitioner

VERIFICATION

I,
Mumbai, do hereby state on solemn affirmation that the contents of
paragraphs 1 to 22 are true and correct to the best of my knowledge
and the contents of paragraphs 23 to 32 are based on legal advice
which I believe the same to be correct.

Solemnly affirmed at Mumbai ]

]
Before me
Identified by me

Advocate for Petitioner.

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I am not a member of the Advocates' Welfare Fund Association. Hence, Rs.2/- Stamp is not affixed.

Advocate for Petitioner

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. OF 2019

)
)
)
) ...Petitioner
Versus
1. Tree Authority, Mumbai )
MCGM, Mahapalika Marg, Mumbai-01 )
2. Mumbai Metro Rail Corporation Ltd )
Plot R-13, E Block, BKC, Mumbai-51 )
3. State of Maharashtra )
Through office of the Government Pleader )
Bombay High Court,Mumbai 400001 ) ...Respondents
To,
The Prothonotary & Senior Master,
Registrar (O.S.),
High Court Mumbai, Original Side
Sir,
I, the Petitioner above named do hereby
appoint Ms Pushpa Thapa, Advocate High Court, Bombay to act, appear
and plead for me in the above matter.

IN WITNESS WHEREOF we have set and subscribed my hand to

this writing at Bombay.

Witness:
Accepted Petitioner
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION No. OF 2019

.. Petitioner

V/s.

Tree Authority, Mumbai & Ors.

.. Respondents

VAKALATNAMA
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION No. OF 2019

...Petitioner
Versus

Tree Authority, Mumbai & Ors. ...Respondents

MEMORANDUM OF REGISTERED ADDRESS

OF THE PETITIONER

Advocate for the Petitioner

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION No. OF 2019

...Petitioner

Tree Authority, Mumbai & Ors. ...Respondents

LIST OF DOCUMENTS ON WHICH THE PETITIONER

SHALL RELY

1. All the documents exhibited, referred to and relied upon in the

Petition.

Advocate for the Petitioner

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION No. OF 2019

...Petitioners

Tree Authority, Mumbai & Ors. ...Respondents

I,

do hereby state on solemn affirmation as under:-

1. I have filed this petition as a Writ Petition under Article 226 of The
Constitution of India, praying that this Honourable Court may be pleased
to quash Respondent No.1's Impugned Resolution dated 29.08.2019
being bad in law.

2. I say that if the reliefs as prayed in the petition are not granted then it
will result in serious and severe damage to the tree cover in the city of
Mumbai and it will disturb the ecological balance.

3. I repeat, reiterate and confirm the contents of the Exhibits annexed to the
Petition.

4. I pray that the appropriate orders/directions be passed against the

Respondents in order to protect the tree cover in Mumbai from illegal
cutting.

5. Whatever is stated in the Petition is true to my knowledge

Solemnly affirmed at Mumbai )

)
Before me:
Advocate for Petitioner
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. OF 2019

...Petitioners

Tree Authority, Mumbai & Ors. ...Respondents

MOST RESPECTFULLY SHEWETH:

1. That the Petitioner has filed the Writ Petition for its reliefs as prayed for in the
Petition. I repeat and confirm all that has been stated in the petition is true and
prays that the reliefs prayed for in the petition be granted.
2. That the present Petitioner, has no personal interest, gain, private motive or
oblique reason in filing the present Petition.
3. That the Petitioner undertakes to pay costs as ordered by this Hon’ble Court if
ultimately held that the Petition is frivolous or has been filed for extraneous
consideration or that it lack bonafides.
4. That the Petitioner, undertakes to disclose the source of his information
leading to the filing of the present Petition if and when called upon by the
Hon’ble Court to do so.
5. This Petition has been filed seeking compliance with orders passed by this
Hon'ble Court in PIL(L) No. 60 of 2019 filed by this Petitioner against the
Respondent No. 1 for the ultimate aim of protecting & preserving the tree
cover in Mumbai.
I say that accordingly this affidavit is filed.

Solemnly affirmed at Mumbai )

this )

Identified by me, Deponent

Advocate for the Petitioner

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. OF 2019

...Petitioners

Versus
Tree Authority, Mumbai & Ors. ...Respondents

ADVOCATE'S CERTIFICATE

To,
The Prothonotary & Senior Master,
High Court, Bombay

I, do certify and state that the issue

involved in the present Writ Petition is required to be entertained
by a Division Bench, as per High Court (Original Side) Rules.

Yours faithfully,

Advocate for the Petitioner

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION No. OF 2019

V/s
Tree Authority, Mumbai & Ors
....Respondents

PETITION