Jayamahal Tree Felling Illegal, in Contempt of Court
The same law applies to Steel Flyover and other Infrastructure projects as well
There is an eerie feeling to the recent Public Notice issued by the Assistant Conservator of Forests, BBMP about the proposed felling of 112 trees on Jayamahal Road. The notice reads as though a decision has already been made, and we the public, after all, are only participating in a ritual of issuing the death sentence of these trees. The officer argues in the notice that he conducted a “spot inspection” and “found that the removal of these trees is very much necessary for taking up the work of widening the Jayamahal Road”. The notice then states that we, the public, are welcome, if we are concerned, to share our concerns and comments and suggestions, and that within 10 days by email or phone. It is claimed that this notice is issued per Sec 8 (iii) of the Karnataka Preservation of Trees Act, 1976 (KPTA, 1976).
There is no such Section in the Tree Act. What the officer probably is referring to is Sec 8 (3) (vii) of the Act which requires the public must be consulted when more than 50 trees are to be felled for “any public purpose”. We won't get into an argument now over the senselessness of privileging the felling of 50 trees as requiring public review, as opposed to, say, 46 trees. What is important to note is that the officer was so sloppy in issuing a public notice on a matter of such great concern to Bengalureans, that he did not even quote the legal proviso of the Act right. This indicates how little he has cared to appreciate the implications of laws governing the protection of our trees, and of the right of the public to be involved in shaping such crucial decisions that matter not only to us, but for generations to come. After all, the trees that are now proposed to be felled were not planted by us, they were planted over three generations ago!
The Tree Act was amended in 2014 to close very serious gaps in the law which was enabling reckless felling of trees. The gaps were empowering the tree felling mafia to take control of decision making, and of officers involved in the decision making process. The impact of these serious gaps and weaknesses ofthe law was felt not only in Bangalore, but across the State of Karnataka.
When the proposal to widen Jayamahal Road first came up in 2010, there was widespread protest. Then, as now, the rationale for widening the road was not articulated; in fact there were several other alternatives that could be worked to decongest the region, involving no felling of trees. But none in authority seemed to care about such wise options.
This prompted Justice D. V. Shylendra Kumar, then Judge of the Karnataka High Court, to write a letter to the Registrar General of the Court (letter of 6th January 2011). Justice Kumar argued that “it is ...rumoured that there is a tree mafia in operation which is controlling the authorities of the Bangalore Mahanagara Palike and other public authorities for ensuring that well grown, matured and developed trees in Bangalore City are all chopped off ….... With the administrators having the responsibility to take care and protect the trees having miserably failed and statutory provisions being practised more in breach, it is high time that such matters are not overlooked by judiciary....”
The serious concerns raised over the weaknesses in the Tree Act enabling reckless tree felling were taken up suo moto by the Principal Bench of the High Court (WP 7288/2011). Following years of argument, the Court directed the State Government in August 2014 that the Tree Act must be strengthened by enhancing public involvement in decision making. The Court also directed that “felling of trees would be undertaken as an exception rather than a rule, and further that the tree officer and tree authority would fully satisfy themselves and certify that all other alternatives have been considered regarding the feasibility of the felling of trees. If any objections are received from the public, due consideration shall be given by assigning reasons.” To ensure transparency in such decisions, the Court directed that “all the applications for tree felling and the decisions taken thereon be made available to the public in a transparent manner”. The Tree Act was consequently amended to accommodate this direction. But controversially, public consultation was made mandatory only if 50 or more trees were to be felled. Another critical laps is that till date, the procedure for engaging the public in such decision making has not been detailed. In fact, three years after this order, the BBMP website has no information of value about applications for tree felling, eg. Jayamahal Road. In such a situation, the crucial question is if the Tree Officer can create his own procedure to decide 112 trees need to be felled, as he has discovered, and that following a ritual consultation with the public over email and in 10 days ?
A popular misconception amongst the bureaucracy is that when infrastructure, such as roads, are indicated for widening in the Master Plan, its a fait accompli for abutting trees and properties. Quite the contrary is true as is so categorically detailed in the Karnataka Town and Country Planning Act, 1961 (KTCP Act). When this law was passed, urbanisation and urban governance hardly achieved the complexity as in our times. Yet, law makers then were so considerate of the demands of present and futures generations, and subordinating to public will, that they considered it critical for the public to be involved in every detail of planning and managing cities. What this means for widening roads is that planning and implementing authorities are required to formulate a scheme (project report), prepare a budget and then finalise the proposal. At each of these stages, there would be public review, periods ranging from 2-3 weeks. Had we complied with the letter and spirit of this law, we probably would have cities today that would not only be livable and functional, but also, crucially, highly inclusive.
When the Bangalore Metro similarly proposed to push forth the project in violation of this law, Environment Support Group challenged the effort in the Karnataka High Court (WP 13241/2009). Even as the case was being argued, work on Phase I started - as no stay was granted. However, in the final order the Karnataka High Court held that violations of the KTCP Act could not continue any longer, and directed not only Bangalore Metro, but all infrastructure development authorities, to strictly comply with the provisions of the law. The public's involvement in shaping these majore decisions was fundamental, the Court held, and warned individual officials that any contravention of the law would amount to serious contempt of court, and that the officers would be punished.
So when the Tree Officer proposed to fell 112 trees on Jayamahal Road based on his “spot inspection”, or, for that matter, when the Bangalore Development Minister Mr. K. J. George insists the Steel Flyover must be built merely to gain 7 minutes headway over normal traffic to the airport, even if it involves felling hundreds of trees and destroying the core of the city and at great public expense, the question arises if they really do not understand the law and what it demands? It appears not.
This is where the 12th April 2016 Affidavit filed by the Addl. Chief Secretary and Principal Secretary of Karnataka Public Works Department before the Supreme Court regarding the Bangalore Mysore Infrastructure Corridor Project achieves significance. The case of the Government here is that Nandi Infrastructure Corridor Enterprise has acted in violation of the KTCP Act. The officer, therefore, submits to the Supreme Court that “Section 26 of the Karnataka Town and Country Planning Act, 1961, in particular, and Chapter V of the said Act in general, contemplates a scheme made by the Planning Authority for the purpose of implementing the proposals in the Master Plan published by the State Government. The ODP becomes an implementable Master Plan only in the wake of such a scheme made by the State Government, and in the process of implementation of this scheme, the Master Plan may be subjected to change in accordance with ground-level requirements. In the instant case, such a scheme has not come into existence yet.” In simple terms this means merely because something is proposed in a Master Plan, say widening of Jayamahal Road to 30 metres, does not mean BBMP can proceed to widen the road unless it has produced the Detailed Project Report and Budget to the public for at least 21 days duration, and if it is justified, only then can the project be approved for implementation.
This also means that planning and finalising infrastructure projects as per the KTCP Act is to be first done before the questions of applying for tree felling permits can emerge. Even considering an application for tree felling by the Tree Officer, in the absence of compliance with KTCP Act, is blatant violation of the procedure of law and the Court orders. Felling trees, if at all found necessary, is to be undertaken after demonstrating all alternatives have been considered, and the decision making undertaken with great transparency and public accountability. In the case of the Jayamahal Road, or the Steel Flyoever, the opposite has been true.
Thus, the Tree Officer rushing to fell trees, and ritually calling for public objections causing widespread anxiety amongst residents who care about the quality of their local environment, is in clear violation of the law and in contempt of court. Consequently, the Public Notice issued by the Tree Officer proposing to fell 112 trees must be withdrawn. The same rule applies to the Steel Flyover proposal also. Highlighting these legal and judicial imperatives, the Tree Officer of BBMP has been urged not to abuse the law and to work, for his own sake, in compliance with High Court directions unmindful of the pressures from higher-ups. Then, certainly, the public will defend him.
Leo F. Saldanha and Harsh Vardhan Bhati
Environment Support Group
(This analysis has also been published as "BRUHAT BENGALURU MAHANAGARA PALIKE NOTICE ON TREE FELLING RUNS FOUL OF THE LAW" the main story of Bangalore Mirror issue dated 10th February 2017, accessible at: http://bangaloremirror.indiatimes.com/bangalore/cover-story/Bruhat-Bengaluru-Mahanagara-Palike-notice-on-tree-felling-runs-foul-of-the-law/articleshow/57069583.cms. A minor correction necessary in the BM article is that the Karnataka Government Affidavit date should be 26th Feb 2016, not 12th April 2016 as mentioned.)