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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRADEEP NANDRAJOG, BHARATI DANGRE, JJ.
Vanashakti A Public Trust - Appellant
Versus
Union of India - Respondent
Writ Petition No. 1487 of 2019; Public Interest Litigation (L) No. 86 of 2019
Decided On : 04-10-2019
Indian Forest Act, 1927 - Constitution of India - Article 226 - Wildlife Act – Condo nation of delay - Claim of compensation - That this Honble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus directing Respondent No.2 to declare the entire area of Aarey Colony ad measuring 1280 hectare as a Reserved Forest or a Protected Forest as the case may be, under the Indian Forest Act, 1927 and to issue a formal notification to that effect under the Indian Forest Act, 1927 - That this Honble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus restraining Respondents from granting permissions for any proposed development and/or for any non-forest activity in the entire area of Aarey Colony without following the due process under the Forest (Conservation) Act, 1980 – Held, Concerning the case pleaded in PIL (L) No. 86/2019 that the report submitted by IIT Bombay and NEERI, placed before the Supreme Court in CA No.10463-64/2016, suffice it to state that even this issue relating to the report has to be urged before the Supreme Court and not in a separate proceedings. We have perused the report. It notes that the total length of Mithi river is 75.84 km out of which 8.23 km downstream part is influenced by the tidal effect of Mahim creek. The river traverses through Powai, Marol, Andheri and runs below the runway of the International Air-port and Meanders through Bandra-Kurla complex. It discharges through the Mahim creek into the Arabean Sea. The report notes that the channelization of the river by erecting vertical concrete walls was wrong. It suggests remedial measures pertaining to the flood plain in Aarey Colony. It notes that the natural course of the river had already been altered leading to an acute 90 degrees turn at the edge of the proposed Metro Yard. The report also notes that large tracts of lands having depression at the site of the proposed Metro Yard have been extensively filled up. Though not expressly stated, the report recognizes the irretrievable change in Topology and therefore in the proposed eco-rejuvenation master plan it proposed solutions in a manner the Metro Yard could be constructed without further environmental damage. Since the report has been called for by the Supreme Court and the issue of flood plain of Mithi river is being considered by the Supreme Court, on the principle of Comity the Petitioner ought to approach the Supreme Court by filing an application. The water policy relied upon does not expressly prohibit construction on a flood plain. It lays emphasis to protect flood plain while planning constructions – Petition dismissed
JUDGMENT :
PRADEEP NANDRAJOG, J.
1. The five Writ Petitioners of W.P. No. 1487/2019, the first being a Public Charitable Trust having object to protect and preserve the western Ghats, coastal zones, forests and rivers, the second being its project Director, the other three being environmental activists and residents of Mumbai have filed Writ Petition No. 1487 of 2019 praying as under:
"(a) That this Hon'ble Court be pleased to issue a writ of Declaration, declaring the entire area of Aarey Colony ad measuring 1280 hectare as a 'Reserved Forest' or a 'Protected Forest' as the case may be, under the Indian Forest Act, 1927 and direct Respondent No.2 to issue a formal notification to that effect under the Indian Forest Act, 1927.
(b) That this Hon'ble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus directing Respondent No.2 to declare the entire area of Aarey Colony ad measuring 1280 hectare as a 'Reserved Forest' or a 'Protected Forest' as the case may be, under the Indian Forest Act, 1927 and to issue a formal notification to that effect under the Indian Forest Act, 1927.
(c) That this Hon'ble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus restraining Respondents from granting permissions for any proposed development and/or for any non-forest activity in the entire area of Aarey Colony without following the due process under the Forest (Conservation) Act, 1980.
(d) That this Hon'ble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus directing Respondents to forthwith stop all ongoing construction/development / land filling activities inside Aarey, within the entire area of 1280 hectares.
(e) That this Hon'ble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus directing Respondents to give effect to the implementation of the orders of Hon'ble Supreme Court in T.N. Godavarman v/s. Union of India (W.P. [Civil] No. 202/1995) on having identified Aarey as a 'Forest land'.
(f) That this Hon'ble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus directing Respondents to settle and vest all forest rights of tribal communities in Aarey Colony in accordance with The Scheduled Tribes and Other Traditional Forest (Recognition of Forest Rights) Act, 2006.
(f-i) That this Hon'ble Court be pleased to issue a writ of Mandamus and/or any other writ or order or direction in the nature of Mandamus directing Respondent No.13 to not carry out any non-forest activity in the entire Aarey Colony including any change of forest landscape by way of cutting/trimming/felling/removal of trees and/or reclamation and/or dumping of debris and/or leveling of land and/or any construction in the entire Aarey Colony and to restore the areas of Aarey Colony allotted to Respondent No.13 to its original position."
2. The Petitioner in Public Interest Litigation (L) No. 86/2019, who is concerned with environment has filed the petition praying as under:
"(a) that this Honourable Court be pleased to issue an appropriate writ, order or direction under Article 226 of the Constitution of India prohibiting the construction of a Metro Car Depot on the flood plains of the Mithi river at Aarey;
(b) that this Honourable Court be pleased to issue an appropriate writ, order or direction under Article 226 of the Constitution of India directing the restoration of the natural flood plain of the Mithi river at Aarey;
(c) that this Honourable Court be pleased to issue an appropriate writ, order or direction under Article 226 of the Constitution of India directing the removal of any mechanical barrier/wall at the bank of the Mithi river which is blocking the flow of water t
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