Mumbai Aarey debate: ‘Matter concluded by another bench, should not be entertained again by HC’https://indianexpress.com/article/cities/mumbai/mumbai-aarey-colony-cant-get-forest-tag-just-because-it-has-greenery-maharashtra-govt-6011203/

Mumbai Aarey debate: ‘Matter concluded by another bench, should not be entertained again by HC’

Kumbhakoni was referring to an order passed by Justice S C Dharmadhikari and Justice P D Naik in 2018, dismissing a PIL challenging the construction of a Metro car shed on 33 hectare at Aarey Milk Colony.

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The Aarey Colony, measuring 1,287 hectares and located adjoining the Sanjay Gandhi National Park, is known as a major green lung of the metropolis. (File)

THE MUMBAI Metro Rail Corporation Limited (MMRCL) and the state government on Thursday told the Bombay High Court that the petition filed by NGO Vanashakti, seeking to declare Aarey Colony a forest, is not maintainable as the issue has already been decided by another bench of the Bombay High Court.

Advocate General Ashutosh Kumbhakoni, along with Advocate Akshay Shinde — appearing for MMRCL — argued that while they are not against saving the environment, the court cannot entertain such a petition as the case has already been decided by a bench in 2018 and its decision has also been challenged before the Supreme Court.

Kumbhakoni was referring to an order passed by Justice S C Dharmadhikari and Justice P D Naik in 2018, dismissing a PIL challenging the construction of a Metro car shed on 33 hectare at Aarey Milk Colony. He pointed out that in the 100-page judgment, Justice Dharmadhikari had said that “it is erroneous to term Aarey or Aarey Milk Colony area as a forest” and “it is not an eco-sensitive zone of the Sanjay Gandhi National Park”.

He further informed the court that in the special leave petition filed before the SC challenging the order of Justice Dharmadhikari, the petitioners have said that the HC has erred in concluding that 165 hectare in Aarey, which includes the land proposed to be allotted to the car depot, is not a forest.

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Kumbhakoni argued that the argument made by the petitioners have also been covered in the judgment passed by Justice Dharmadhikari. He added that the matter, which has been concluded by another bench, should not be entertained again by the HC. “Let them (petitioners) succeed there (in SC) and then come back. I am wishing them good luck but only in SC,” Kumbhakoni said. He added that the principles of res judicata (a matter that has been adjudicated upon by a competent court and therefore may not be pursued further by the same parties) will also apply to the PIL.

Senior counsel Anil Sakhare, representing the state, told the court that in the existing 1,280 hectare of Aarey Milk Colony, while 521 hectare have been transferred to various departments, 759 hectare are in possession of the dairy development department.

He added that on the said 759 hectare, there are 18 adivasi padas, slum areas, office of Aarey Milk Colony CEO, a milk processing plant, New Zealand hostel building, a dairy diploma college, around 30 cattle sheds, 17 godowns, a police station, temples, a BMC school, four gardens and a hospital among others.

“What is the consequence of the petitioners’ prayer to declare Aarey a forest… all such land users (would) have to be removed,” Sakhare asked.

Senior counsel Shrihari Aney, also appearing for the state, told the court that the alternative land at Kanjurmarg will be used for Metro 6 (Lokhandwala-Jogeshwari-Vikhroli-Kanjurmarg) corridor. He added that it is not possible to stretch Metro 3 to Kanjurmarg, though it is just 10 km away, because it will create traffic woes for people coming from Colaba and Jogeshwari. Chief Justice Pradeep Nandrajog, while hearing the arguments, said: “We were only trying for a win-win solution.” The court posted the matter for hearing on September 30, along with petitions challenging the Tree Authority’s decision allowing to fell and transplant 2,646 trees in Aarey for the car shed.

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