Bombay High Court
Mumbai Railway Vikas Corporation Ltd vs Mr. Purshottam Lilaram Khanchandani ... on 28 August, 2024
Author: Amit Borkar
Bench: Amit Borkar
6-ia-17616-2023
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.17616 OF 2023
IN
SHABNOOR
AYUB PUBLIC INTEREST LITIGATION NO.155 OF 2016
PATHAN
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2024.08.28
18:19:55 +0530
Mumbai Railway Vikas
Corporation Limited ... Applicant
In the matter between
Purushottam Lilaram Khanchandani ... Petitioner
V/s.
State of Maharashtra & Ors. ... Respondents
Mr. Atharva A. Dandekar for Applicant.
Ms. Ronita Bhattacharya Bector a/w Ms. Sejal Khan and
Ms. Savita Purushottam Khanchandani for Petitioner in PIL.
Mr. Suresh M Kamble for Respondent No.2.
Mr. P. P. Kakade, Government Pleader a/w Mr. O. A.
Chandurkar, Additional Government Pleader with Ms. G. R.
Raghuwanshi, AGP for State-Respondent Nos.1, 9, 10, 11
and 12.
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ
& AMIT BORKAR, J.
DATED : AUGUST 28, 2024
P.C.:
1. Heard Mr. Atharva A. Dandekar, learned counsel for the
applicant, Ms. Ronita Bhattacharya Bector, learned counsel
representing PIL petitioner and Mr. Suresh Kamble, learned
counsel representing respondent No.2 - Ulhasnagar Municipal
Corporation.
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2. The instant interim application has been moved by the
applicant, which is Mumbai Railway Vikas Corporation Limited,
seeking permission of the Court to fell 53 trees which have
been described more appropriately in Annexure 'A' appended
to the interim application. The permission of the Court is
being sought as according to the applicant these 53 trees
need to be cut for laying 3 and 4 railway lines between Kalyan
and Badlapur railway lines.
3. Learned counsel for the applicant has drawn our
attention to the order dated 18 July 2018 passed in the
petition, whereby it was directed by this Court that till further
orders, the Tree Authority of the Corporation shall not
exercise its powers of granting permission for felling of trees.
The Court, however, by the said order, also directed that it
would be open to the Corporation to apply for modification of
this order after the Tree Authority is lawfully constituted.
4. The order was passed on 18 July 2018; however, it
appears that till date the Tree Authority in terms of provisions
contained in the Maharashtra (Urban Areas) Protection and
Preservation of Trees Act, 1975 (1975 Act) has not been
constituted by the respondent-Corporation. The Court has
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recorded the said fact in its order dated 3 February 2023. This
Court in the order dated 3 February 2023 also records that it
appears that the Commissioner is exercising the powers of the
Tree Authority, who certainly cannot be considered to be an
expert.
5. On being asked as to why the Tree Authority has not yet
been constituted, learned counsel representing the
respondent-Corporation submits that in terms of the
requirement of Section 3 of the 1975 Act, in a Municipal
Corporation a Tree Authority is headed by the Commissioner
of the Corporation as its Chairman, and it consists of not less
than 5 and not more than 15 persons from amongst the
members of the Corporation and since there are no elected
members of the Corporation for the reason that the State
Government has appointed an Administrator, as such the
constitution of the authority is not possible. He has also stated
that in terms of the provisions contained in the proviso to
sub-section (1) of Section 3 of the 1975 Act, since at present
Administrator is appointed, it is the Commissioner who is the
Administrator, who shall act as Tree Authority. He further
submits that efforts were made by the respondent-
Corporation to nominate the expert members in terms of sub-
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section 3 of Section 3 of the 1975 Act, however, the
Corporation could not find qualified experts to be nominated
to the Tree Authority.
6. The proviso appended to sub-section 1 of Section 3 of
the 1975 Act, makes it clear that where an Administrator is
appointed for any Municipal Body, he shall act as the Tree
Authority and exercise all the powers and perform all the
duties of the Tree Authority during the period of his
appointment. The Tree Authority, in terms of requirement of
sub-section 3 of Section 3 of the 1975 Act needs to nominate
the expert members as well and number of expert members
to be nominated on the Tree Authority shall not exceed
number of members under the provisions of Section 3 (1) of
the 1975 Act.
7. On account of non-availability of elected members of the
respondent-Corporation, a peculiar situation has arisen, where
though in terms of proviso appended to sub-section 1 of
Section 3 of the 1975 Act, the Administrator shall exercise all
the powers and perform all the duties of the Tree Authority,
however, he cannot ascertain the number of expert members
to be nominated in terms of requirement of sub-section 3 of
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Section 3 of the 1975 Act.
8. Having regard to the facts and circumstances as
discussed above, and especially keeping in view of the non-
availability of the elected members of the respondent-
Corporation, and inability of the Municipal Commissioner to
find expert members, invoking doctrine of necessity, we pass
the following order for the reasons that the Municipal
Corporation cannot be left with the Tree Authority being
rendered non-functional:
ORDER
(a) Till the Tree Authority is constituted in terms of the requirement and mandate of Section 3 of the 1975 Act, an Ad-hoc Tree Committee shall be constituted, and the Municipal Commissioner shall be its chairman;
(b) The Ad-hoc Tree Committee to be constituted under this order shall consist of four experts, and since the Commissioner of the Corporation has expressed his inability to find the qualified experts, by the next date learned counsel representing the PIL petitioner, learned counsel representing applicant and the learned counsel 5 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 29/08/2024 10:57:17 ::: 6-ia-17616-2023 representing the Corporation shall submit a list of such experts to the Court from amongst whom the Court shall nominate the expert members;
(c) The application moved by the applicant-Mumbai Railway Vikas Corporation Limited seeking permission to cut 53 trees shall be considered, and appropriate decision thereon shall be taken in terms and requirements of law by the Ad-hoc Tree Committee as expeditiously as possible;
(d) The prayer made by the learned counsel representing the respondent-Corporation for taking decision for cutting the trees in dangerous conditions, which are said to have been identified by one Mr. Nagesh Virkar, shall also be referred to and decided by the Ad- hoc Tree Committee which is to be constituted under this order.
9. Stand over to 4 September 2024. To be placed High on Board.
(AMIT BORKAR, J.) (CHIEF JUSTICE) 6 ::: Uploaded on - 28/08/2024 ::: Downloaded on - 29/08/2024 10:57:17 :::