[Urbanstudy] Release: Karnataka High Court stays tree felling for road widening

[ESG India]

*Press Release : 03 October 2012 : Bangalore*

*Karnataka High Court stays tree felling for road widening*

Raises concerns about insufficiency of Karnataka Tree Preservation Act 
to handle current complexities


The Principal Bench of the Karnataka High Court, constituted by Chief 
Justice Mr. Vikramjit Sen and Justice Mrs. B. V. Nagarathna, issued an 
interim direction staying felling of trees in Bangalore for road 
widening today. This order was issued in continuance of hearings in the 
PIL filed by Environment Support Group and ors. (WP No. 7107/2008) 
challenging Bruhat Bengaluru Mahanagara Palike's (BBMP - Bangalore's 
civic agency) proposal to widen 216 roads in violation of the Karnataka 
Town and Country Planning Act, Karnataka Preservation of Trees Act and 
Constitutional 74^th Amendment (Nagarpalika) Act, amongst others.


Submitting some of the major concerns raised in the PIL, Mr. Sunil Dutt 
Yadav, Advocate for ESG, explained that hundreds of trees were being 
recklessly felled over the years in Bangalore for road widening and 
other infrastructure projects. The Tree Officer of the BBMP, a forest 
official deputed from the Forest Department and working from within the 
BBMP, is constrained from taking any objective decision, and there is 
rarely any reasoned order justifying such massive felling of trees. In 
fact, entire lines of trees are felled without in any manner taking into 
account alternatives, such as retaining street trees as medians and 
creating safe cycling paths. Appeals against such decisions before the 
Tree Authority, constituted per the Act as an Appellate Authority, was 
pointless as the same officers who had originally cleared the tree 
felling were the appellate officers. Thus, in effect, the Tree Act had 
been rendered meaningless for the purpose for which it had been enacted. 
Mr. Yadav also submitted that these concerns were in addition to those 
that had been earlier submitted, that that road widening proposals were 
not on conformance with the provisions of the Karnataka Town and Country 
Planning Act.


The Second Petitioner, Mr. Leo Saldanha, appearing in person, drew the 
attention of the Court to certain documents which revealed that some 
Tree Officers were involved in possible corrupt practices. He submitted 
that in 2007 hundreds of old trees had been felled for widening a 40 
kms. stretch of Bellary road connecting the city to its new Airport near 
Devanahalli. However, these long dead trees were shown on record to have 
existed a year later. Then, in November 2008, the Tree Officer in 
collusion with BBMP officials drew lakhs of rupees from the public 
exchequer terming them as expenditure required to hire contractors to 
'fell' the same trees that had already been felled the year before. Such 
shocking practices were possible, he submitted, as Forest Officials were 
deputed to the BBMP now and this created a situation where the 
independent functioning of forest officials was compromised.


Mr. Saldanha also submitted that the public were by and large kept at a 
distance in the formulation of decisions relating to design, 
construction and widening of roads. In fact many competent proposals to 
remedy traffic congestion without necessitating the displacement of 
communities, destruction of properties or felling of trees had been 
submitted to BBMP over the years, but no interest was evinced in such 
progressive ideas. An RTI response from the Chief Engineer (Roads) of 
BBMP confirmed that the road widening projects were not at all 
conforming to the National Urban Transport Policy. Consequently, the 
current spate of road widening projects were opposed to public interest 
and public policy. He also submitted that decisions on road widening 
were extremely complex and involved Fundamental Rights of affected 
communities (such as street vendors and property owners) and also the 
cause of protecting trees and wildlife (for street tree lines worked as 
wildlife corridors for birds and small mammals). Thus such complex 
decisions should have appropriately been dealt with by the Metropolitan 
Planning Committee, which, unfortunately, the Government has failed to 
constitute for two decades now. He highlighted that the Leader of 
Opposition in BBMP Mr. Gunashekar had raised similar concerns in a 
Council debate and also that the cost of acquiring property to widen 100 
roads alone was estimated to be Rs. 17,000 crores which the BBMP could 
not afford. BBMP's policy of according Transfer of Development Rights to 
those losing property also seems to have failed as evidenced in the case 
of one Mr. Khaleeli who was one of the first in the city to have availed 
of the scheme, and was yet to receive the Development Rights 
Certificate. Consequently, he had preferred an appeal in the Court 
demanding compensation for the land lost to road widening.


The counsels for BBMP submitted that they were keen to involve the 
public and that the Tree Act was being complied with. It was submitted 
that the Tree Authority had been constituted to ensure any dispute could 
be resolved, and that the object of protecting trees was met with. It 
was also claimed that there was massive afforestation being undertaken 
to compensate the loss of trees felled due to road widening.


Countering this contention, Mr. Phaneendra, Counsel appearing as /amicus 
curiae /in the /suo moto /PIL (WP No. 7288/2011) admitted in response to 
Justice Mr. Shylendra Kumar's letter to the Registrar of the High Court 
raising similar concerns against massive tree felling, submitted that 
BBMP had claimed that it had planted over 800,000 saplings, but clearly 
such a massive afforestation effort was invisible anywhere in the city. 
Mr. Yadav supporting this contention argued that the Tree Act in fact 
required that locally relevant species where to be planted in the very 
place where trees were felled, and that it is pointless to plant them 
miles away in compensation.


These assurances of the Counsels of BBMP did not convince the Hon'ble 
Judges about the civic agency's seriousness in protecting the city's 
greenery. They also expressed serious reservations over the lack of 
public involvement in decisions relating to felling trees and road 
widening and demanded an explanation from the Counsels why such 
proposals were not subjected to public scrutiny stating "BBMP must serve 
the public, and not the other way round". The Bench also expressed 
serious concerns over the denudation of the greenery in the city 
observing: "Just look at what you have done to this city? Trees, lakes 
and gardens are all disappearing rapidly!"


The Principal Bench then reviewed the provisions of the Tree Act and 
found it grossly insufficient in responding to the complexities of 
current problems. In particular referring to Section 3 (2) of the Act 
which provided for the Mayor, Deputy Conservator of Forests, Municipal 
Commissioner, etc. forming the Tree Authority as an appellate body, the 
Court recorded in its interim direction that /"this amounts to a person 
being a judge in his own case which is anathema in law"/. The Court also 
observed that it "/prima facie /(it felt) that people must be aware of 
felling of road side trees by public notice so that their objections are 
invited". On the basis of these observations, the Court directed that 
the interim stay on felling of trees issued in the case of road widening 
by National Highway Authorities would also apply to these matters. The 
Principal Bench also directed that all these connected matters would be 
heard jointly on the next date of hearing.


An unofficial version of the judgment as orally delivered in Court is 
enclosed.


*Interim Directions issued by the Principal Division Bench of the High 
Court of Karnataka in WP No. 7107/2008 c/w WP No. 7288/2011:*


The learned counsel for BBMP prays for an adjournment to enable him to 
place material on record to indicate that careful thought goes into any 
decision for felling a tree. The adjournment is granted.

We have had a cursory glance of Karnataka Preservation of Trees Act, 
1976 especially so far as the availability of an appeal is concerned. In 
the first place it appears to us that Sec 8 postulates cases wherein an 
individual is desirous of removal of a tree and not wide scale felling 
of trees that are necessiated when roads are sought to be widened or 
highways are sought to be created. /Prima facie /we feel public must be 
made aware of a proposal for removal of trees by issuance of a public 
notice so that objections can be invited.  The Act does not provide any 
machinery in this regard.


Secondly, so far as the availability of an appeal is concerned, it seems 
to us that it may be futile and infructuous in these instances where the 
Tree Officer grants permission to fell a tree, when public perception is 
that such orders are executed instantly and at night.  The Act does not 
seem to cater to such eventualities.


Furthermore so far as the constitution of an appellate body is 
concerned, it comprises of three members such as Mayor or President of 
Corporation, the Municipal Commissioner or Chief Executive, etc. who are 
in effect the persons proposing the felling or keeping of a particular 
tree.  This may amount to a person being a judge in his own cause and is 
anathema in law.

The matter is adjourned for further consideration.

(The Hon'ble Court thereafter directed that the stay in the matter 
relating to National Highways would apply to this case in the interim, 
and both these matters would be heard together on the next date of hearing.)


Issued on behalf of ESG Team by


Mallesh K. R.

Environment Support Group

A copy of the Writ Petition No. 7107/2008 and related information may be 
accessed at: 
http://static.esgindia.org/campaigns/Tree%20felling/Hasire%20Usiru/background.html 



-- 
Environmental, Social Justice and Governance Initiatives
Environment Support Group - Trust
1572, 36th Cross, Ring Road
Banashankari II Stage
Bangalore 560070. INDIA
Tel: 91-80-26713559~61
Voice/Fax: 91-80-26713316
Web:www.esgindia.org
Email:esg at esgindia.org




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