Bombay High Court
Parisar Sanrakshan Sanwardh And ... vs The Pune Muncipal Corporation Thr The ... on 21 December, 2023
903-PIL.210.2023
Jvs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURIDICTION
PUBLIC INTEREST LITIGATION NO. 210 OF 2023
Parisar Sanrakshan Sanwardhan }
Sanstha & Ors. } Petitioners
Versus
The Pune Municipal Corporation }
& Ors. } Respondents
Ms. Ronita Bhattacharya-Bector for the petitioners.
Mr. Abhijit P. Kulkarni with Mr. Gaurav Shahane,
Ms.Shweta Shah, Mr. Krishna Jaybhay for
respondents 1 to 3 (PMC).
Mr. Rohit Sakhdeo for respondent no. 4 (PMRDA).
Mr. P. P. Kakade, Government Pleader with Mr. O. A.
Chandurkar, Additional Government for respondent
no. 5 (State).
Mr. Manoj Suresh Gathe, Deputy Engineer, Road
Department, PMC present.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE: 21st DECEMBER 2023
P.C.:
1. Mr. Kulkarni, learned counsel puts in appearance on behalf
of respondents 1, 2 and 3 and waives service of notice, Mr.
Sakhdeo, learned counsel puts in appearance on behalf of
respondent no. 4 and waives service of notice, whereas the
learned Additional Government Pleader puts in appearance on
behalf of respondent no. 5 and waives service of notice.
2. This PIL petition has been filed by an NGO, namely, Parisar
Sanrakshan Sanwardhan Sanstha and 2 (two) individuals, who
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are the residents of the City of Pune, raising concern about
felling of trees which is taking place on account of a road
widening project and Metro Rail project. The road widening work
is being executed in respect of Ganeshkhind road in the city and
the Metro Rail is also being laid on the said road. Road widening
is to take place from Sancheti to Vidyapith and is aimed at
widening of the width of the existing road of 36 meters to 45
meters.
3. The petitioner had earlier approached this Court by
instituting proceedings of Public Interest Litigation No. 163 of
2023 pointing out various flaws in the order passed by the Tree
Authority, whereby permission for felling of trees coming in the
road widening project was accorded by the Tree Authority. The
said PIL petition was finally disposed of by this Court by means
of an order, dated 12th October 2023 with certain directions. The
direction, in fact, contained in the said order was to the effect
that the Tree Authority shall take decision afresh in respect of
the prayer made by the Municipal Corporation for felling the
trees only by strictly observing the various statutory provisions
of the Maharashtra (Urban Areas) Protection and Preservation of
Trees Act, 1975 (hereafter referred to as "the Act of 1975). It is
in purported compliance of the said order dated, 12th October
2023 passed by this Court that the permission to fell trees has
been accorded by the Tree Authority vide order dated 9 th
December 2023, which is under challenge before us in this PIL
petition. By the impugned order, while according permission, the
Tree Authority has permitted that 33 trees may be cut
completely and 52 trees are to be replanted. While passing the
said order, dated 9th December 2023, the Tree Authority has
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also provided that 2 trees are to be saved, i.e., neither felled
nor replanted from permission. The said permission has been
accorded subject to the condition that 1689 new trees of local
species should be planted.
4. It appears that, the National Green Tribunal at Delhi had
taken suo motu cognizance of the issue and subsequently, such
proceedings have been transferred to its Bench at Pune. During
the pendency of the said proceedings, petitioners 2 and 3
approached the National Green Tribunal (NGT) at Pune Bench
seeking an injunction against Pune Municipal Corporation (PMC)
and Pune Metropolitan Region Development Authority (PMRDA)
restraining them from proceeding ahead with the project of road
widening as also the construction Metro Rail, however, the said
injunction has been denied by the NGT vide its order, dated 11 th
December 2023. The NGT has further observed in the said order
and in subsequent orders that it shall monitor these two
projects.
5. The petitioners, thereafter, approached the Hon'ble
Supreme Court by filing Civil Appeal Diary No. 52331 of 2023,
which has been disposed of finally by means of an order, dated
15th December 2023 permitting the petitioners to move this
Court either in substantive proceedings or by moving an
application in Public Interest Litigation No. 163 of 2023 so as to
draw the attention of this Court to the manner in which its
directions have been complied with by the PMC. The Hon'ble
Supreme Court, by the said order, has also directed that no
further felling of trees shall take place till 21 st December 2021
for widening of the Ganeshkhind road. The relevant extract of
the order, dated 15th December 2023 is quoted as under: -
903-PIL.210.2023
"5 Rather than entertaining the appeal which
arises from an interim order of the NGT, we are of
the considered opinion that it would be appropriate
if the appellants are granted liberty to move the
High court of Judicature at Bombay either in a
substantive proceeding or by moving an
application in PIL 163 of 2023 so as to draw the
attention of the High Court to the manner in which
its directions have ben complied with by the
Municipal Corporation. In the event that the
appellants do so, we request the Chief Justice of
the High Court of Judicature at Bombay to take up
the proceedings with all responsible despatch.
6. In order to enable the appellants to have a
reasonable time to approach the High Court, we
direct that no further felling of trees shall take
place between the date of this order and till 5 pm
of 21 December 2023 for the widening of
Ganeshkhind Road.
7. Since we are leaving it to the High Court to
take an appropriate view of the matter, we clarify
that this order shall not be construed as any
expression of opinion on merits.
8. The appeal is accordingly disposed of.
9. Pending application, if any, stands disposed
of."
6. It is in view of the liberty granted by the Hon'ble Supreme
Court vide its order dated 15th December 2023 that the
petitioners have filed the instant PIL petition challenging the
order dated 9th December 2023 passed by the Tree Authority,
whereby permission to fell certain number of trees has been
accorded as also permission to relocate/replant certain number
of trees has also been granted.
7. Submission of the learned counsel for the petitioners is
that the Tree Authority, while passing the impugned order, has
not taken into consideration the relevant factors which vitiates
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the permission. It has also been argued by the learned counsel
for the petitioners that one of the relevant factors to be taken
into account, while considering an application for grant of
permission to fell trees by the Tree Authority, is the kind of trees
in respect of which such a permission is sought. In other words,
it has been submitted that the age, girth, species, general
health and location of the trees are some of the relevant aspects
which ought to weigh in the mind of the Tree Authority while
considering any prayer for according permission to cut trees. In
this regard, it is submitted on behalf of the petitioners that
determination of the said aspects in respect of the trees,
regarding which permission was sought by the PMC, was not
possible in absence of any data based on census of the trees
which are required to be Geo Tagged.
8. Our attention has been drawn to a Division Bench
Judgment of this Court, dated 20th September 2013 rendered in
Public Interest Litigation No. 93 of 2009 (Deepak
Balkrishna Vahikar and Anr. vs. The State of Maharashtra
and Ors.). The issue, which was considered by this Court in the
said case, related to implementation of provisions of the Act of
1975. The Court, while considering the matter in detail, issued
certain directions so as to take appropriate steps for saving the
trees in the city of Pune itself. One of the issues considered by
the Court in the said judgment related to ascertaining as to
whether census of the trees has been carried out by utilizing
modern technology and in particular, with the help of Radio
Frequency Identification Devises (RFID). The Court, in the said
case, felt that it had become necessary to allow the experts to
consider measures to adopt modern technology for managing
903-PIL.210.2023
the trees and the green cover. The Court also noticed that in a
meeting between the PMC and the experts, a conclusion was
arrived at to the effect that an effective census of trees can be
carried out by utilizing the process of geo-tagging. The Court
further noticed that by the process of geo-tagging, the latitude
and longitude of every tree in the urban agglomeration can be
verified, documented and preserved with photographs. The
Court had observed further that the PMC can take a lead role in
the State of Maharashtra for developing Geographical
Information System (GIS), which includes geo-tagging as one of
its components and for creation of a data base for effective
mapping of the trees. Para 15 of the said judgment is extracted
below: -
"15. The assistance of the experts has been obtained
for ascertaining whether a census of trees can be carried
out in future by utilizing modern technology and in
particular with the help of Radio Frequency Identification
Devices (RFID). The modalities which were used by the
PMC for carrying out the census of the trees were largely
manual without the aid of modern technology and hence
it became necessary to allow these experts to consider
measures to adopt modern technology for managing the
trees and the green cover. During the course of the
meeting between the PMC and the experts referred to
above, a conclusion was arrived at that an effective
census of trees can be carried out by utilizing the
process of geo tagging. By the process of geo-tagging
(additional geographical identification meta-data to
various media such as geo-tag photograph or media) the
latitude and longitude of every tree in an urban
agglomeration can be verified, documented and
preserved. In the process, a photograph of every
individual tree is taken, which is automatically tagged to
the Global Positioning System (`GPS'). During the
course of the hearing, this Court had observed that PMC
can take a lead role in the State of Maharashtra for
developing a Geographical Information System(`GIS')
based system which includes as its components geo-
tagging and the creation of a data base for effective
mapping and enumeration of trees.".
903-PIL.210.2023
9. In Deepak Vahikar (supra), the Court further proceeded
to give certain directions and also observed that PMC shall take
necessary steps to implement the order to ensure that census of
the trees, by adopting modern technology in digitized frame
work with geo-tagging, is duly completed. The observations
made by the Court, so far as the functions of the Tree Authority
is concerned, are relevant to be reiterated, where the Court
observed that "the Tree Authority is not an authority for the
destruction of trees but for the preservation of trees and the
enhancement of the fast depleting green cover in the urban
areas of the State". This direction is given in para 26 of the
judgment, which is extracted herein below: -
"26. We now direct that the PMC shall take necessary
steps to effectuate this order to ensure that the census
of trees adopting modern technology in a digitized frame
work with geo-tagging is duly completed. All steps shall
be taken to ensure that the constitution of the Tree
Authority is carried out in terms as indicated to the
Court. Above all, we would seek to emphasize that the
Tree Authority is not an authority for the destruction of
trees but for the preservation of trees and the
enhancement of the fast depleting green cover in the a
cover in the urban areas of the State".
10. The State Legislature, while enacting the Act of 1975 was
conscious of the relevance of census of trees and accordingly, in
section 7(1)(b) of the said Act, it is provided that the Tree
Authority shall be responsible for carrying out census of the
existing trees in all lands within its jurisdiction, once before
December 1996 and thereafter once in every five years by using
new technological means such as GIS based trees census or any
other modern technology. Section 7(1)(b) of the Act of 1975
runs as under: -
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"7. Duties of Tree Authority: - Notwithstanding
anything contained in the relevant Act or in any other
law for the time being in force, and subject to any
special or general directions given by the State
Government, the Tree Authority shall be responsible for
(a) *****
(b) Carrying out a census of the existing trees
in all lands within its jurisdiction, once before
December 1996 and thereafter once in every
five years by using new technological means
such as GIS based tree census or any other
modern technology".
11. It is not only that the Tree Authority is under statutory
mandate as per the provisions contained in section 7(1)(b) of
the Act of 1975, but also under the judicial mandate as per the
judgment of this Court in the case of Deepak Vahikar (supra)
to conduct on regular basis census of all trees lying within its
jurisdiction. The Statutory requirement, as emanates from
section 7(1)(b) of the Act of 1975, mandates that such census
has to be conducted once in 5 (five) years. The primary purpose
of getting the census conducted on regular basis is to have a
complete data base of the trees which can be used for various
purposes and it shall form a relevant material for the purpose of
considering a prayer, if made, for felling of trees. The kind of
information, which can be gathered by conducting census of
trees by using GIS based technology, can be used objectively by
the Tree Authority while considering any prayer for felling of the
trees. In absence of such a GIS based census, in our opinion,
the Tree Authority may not be in a position to arrive at a correct
conclusion whether to grant permission to fell trees or not.
12. It has been stated by the learned counsel for the
petitioners that no such census has been undertaken by the
PMC and hence, the PMC has not only failed to perform its
903-PIL.210.2023
statutory duties, but also deprived the Tree Authority of a
significant data necessary for considering the prayers for felling
of trees.
13. It has further been argued by learned counsel for the
petitioners that the Tree Authority, while considering the prayer
for felling the trees, failed to consider that as per section 8(2) of
the Act of 1975 the Municipal Corporation, while making the
application seeking permission to fell trees, did not enclose any
alternative design. According to the petitioners, submission of
such alternative design was necessary for the reason that the
permission was being sought to cut significant number of trees
and in terms of the proviso appended to section 8(2) of the Act
of 1975, if significant number of trees are proposed to be felled,
the alternate design along with the number of trees required to
be felled for respective design shall be submitted along with the
application. It is, thus, submitted that in absence of such
alternate design available before the Tree Authority, the Tree
Authority was deprived of the relevant material to be taken into
account while considering the prayer for grant of permission to
fell trees.
14. Several other grounds have been raised by the learned
counsel for the petitioners and in that effort, our attention has
been drawn to the fact that in case the road in question is
widened in terms of the provisions contained in guidelines: IRC-
103-2022 issued by Indian Roads Congress, large number of
trees can be saved. According to the petitioners the said
guidelines are to be statutorily followed either while constructing
or widening a road. Our attention has been invited to section
198(A) of the Motor Vehicles Act, 1988 and Rule 166 of the
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Central Motor Vehicles Rules, 1989. Our attention has also been
drawn to section 41 of the Rights of Persons with Disabilities
Act, 2016, which mandates that suitable measures shall be
taken to provide access to all modes of transport to persons
with disabilities and to provide accessible roads to such persons
to address mobility necessary for persons with disabilities.
Section 198(A) of the Moto Vehicles Act, 1988 is a penal
provision, which provides for penalty in case of failure to comply
with the standards for road design, its construction and
maintenance as per the prescription made by the Central
Government from time to time. Rule 166 of the Central Motor
Vehicles Rules, 1989 clearly provides that the design,
construction and maintenance of roads other than National
Highways shall be in accordance with the standards and
specifications of the Indian Road Congress, as may be applicable
or any other guidelines issued by the Government from time to
time. Thus, so far as the applicability of the guidelines issued by
the Indian Roads Congress is concerned, we are of the opinion
that the same are statutory.
15. Learned counsel for the petitioners has drawn our
attention to Chapter 6 of IRC-103-2022 issued by Indian Roads
Congress in the year 2022, which is in relation to pedestrian
facilities design standards. According to clause 6.2.1 of the said
guidelines, in case of a city level commercial street, high street
or shopping street, minimum total footpath width should be 6.5
meters for a 21 meter wide street with 7 meters undivided
carriageway. The same standard will be applicable in case the
width of the street or road is more than 21 meters. According to
the petitioners, in case widening of the road in question is done
903-PIL.210.2023
in terms of the provisions contained in IRC-103-2022 guidelines
issued by Indian Road Congress, which has a statutory force,
large number of trees can be saved.
16. With the aforesaid submissions, it has been urged by the
learned counsel for the petitioners that the order, dated 9 th
December 2023 passed by the Tree Authority may be stayed
and the respondents may also be directed not to fell trees any
further.
17. Opposing the prayers made by the petitioners, learned
counsel representing the PMC has submitted that along with the
plan, the alternative design was submitted as per the
requirement of section 8(2) of the Act of 1975. He has also
stated that prior to executing the work relating to road
widening, opinion of experts was taken and the permission was,
thus, sought from the Tree Authority based on the opinion of the
experts. It has also been argued by the learned counsel
representing the PMC that it is not that the Tree Authority has
not applied its mind to the relevant factors necessary for
considering such a prayer for the reason that 2 (two) trees,
which were prayed to be permitted to be felled, have been
ordered to be saved by the Tree Authority. It has also been
argued on behalf of the PMC that in the impugned permission,
adequate provisions have been made to re-plant the trees and
hence, the concerns relating to environment and green cover
have been addressed.
18. However, on a query as to whether census of the trees
based on geo-tagging or GIS has been conducted, learned
counsel for the respondents, on the instructions, submitted that
in most part of the city, it has been done. It appears that tree
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census on regular intervals with effect from December 1996 has
not been done using geo-tagging as mandated by section 7 of
the Act of 1975.
19. Having regard to the statutory nature of the guidelines
issued by the Indian Roads Congress (IRC-103-2022), we are of
the opinion that with a view to examine the feasibility as to
whether by altering the alignment of the road and/or its design,
the trees can be saved, the matter may be referred to a Court
appointed Committee of experts, which will include the officers
of the PMC, PMRDA and the representatives of the petitioners as
well.
20. Accordingly, we appoint the following Committee which
shall comprise of: -
(i) A higher-level expert working in the field of road
construction at Central Road Research Institute (a CSIR
Institute), New Delhi to be appointed by its Director;
(ii) Head of the Department of Environmental
Engineering or any other related Department or any of
the nominee of the Head of such Department of Indian
Institute of Technology (IIT), Mumbai;
(iii) A nominee of National Environmental
Engineering Research Institute (NEERI) to be appointed
by its Director;
(iv) Additional Municipal Commissioner, Pune
Municipal Corporation;
(v) Additional Commissioner, Pune Metropolitan
Region Development Authority;
903-PIL.210.2023
(vi) An expert in Town Planning, Urban Planning and
Urban Studies Department, Indian Institute of
Technology (IIT), Mumbai to be nominated by its
Director.
21. The Additional Commissioner, PMC shall be the convener of
the Committee and shall be responsible for convening the
meetings of the Committee and for placing all the necessary
documents and material before the Committee.
22. Mr. Ranjit Gadgil, the authorised representative of
petitioner no. 1 shall be permitted to participate in the meetings
of the said Committee and his views on the issues to be
deliberated by the Committee shall also be taken into
consideration. He shall be given prior information of all the
meetings of the Committee by its convener.
23. The Committee shall consider, study and recommend the
best possible plan so that maximum number of trees can be
saved on one hand and the road widening and Metro Rail project
work is also executed.
24. The Committee shall complete its task as above as early as
possible, preferably within a period of 2 (two) months. The
report of the Committee shall be submitted to the Court through
the learned counsel representing the Municipal Corporation by
the next date of listing.
25. The entire expenses to be incurred to complete the above
task shall be borne jointly by the PMC and the PMRDA.
903-PIL.210.2023
26. We further direct that till the next date of listing, no felling
of trees shall take place.
27. Stand over to 28th February 2024.
JAYANT
VISHWANATH
SALUNKE
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
