The Mystery of the Aarey Fire and the Need for a Citizens’ Inquiry CJP investigation on the ground and related facts

13, Dec 2018 | Mansi Mehta and Sushmita

In the late hours of Monday, December 3, 2018, a fire blazed in Mumbai’s Aarey forest, the city’s last remaining major green area. Various news reports reported that the fire originated in a plot close to the IT Park that is located adjacent to Aarey. Reports indicated that the fire department struggled to control the fire, which raged through the night before it was doused the next morning. The fire has prompted fierce criticism and raised serious questions from environmental activists, and has set off a political disagreement. On December 13, the Mumbai Fire Brigade released a report that termed the cause of the fire as “doubtful”.

The Aarey forest, located in the Northern suburbs of Mumbai, is the only green cover in the region, and is known for its lush vegetation, with tall trees, grasslands and rocky hills. The Aarey land has consistently faced onslaughts from many development projects. Government after government has not shown any sensitivity towards the flora and fauna of the area, and the fact that this forest is important for the environment.

Visit to the location of the fire

A CJP team visited the area that was affected by the fire to investigate the issue on Monday December 10, 2018. We wanted to assess the impact of the fire on the local Warli Adivasis and others, as well as the impact on flora and fauna. We were unable to access the main area where patches of burnt land could be seen from a distance of about 300-400 metres, as part of it was behind a concrete wall topped with barbed wire. The barbed wire pointed to the land being “private forest land,” also indicated by two yellow boards emblazoned with the words ‘Private Property’ that were visible from a distance. However, they did not indicate to whom the land belongs.

A sign indicating the land is private property.

The path alongside the wall was uphill, rocky and barely motorable, and abruptly ended after a point. The wall that was built around the land marked as private forest land had big window like structures at the bottom, which probably signified the flow of water from the uphill towards other parts.

A part of the area that was affected by the fire.
The wall demarcating the plot that contains the burnt area.

The area that was burned seemed to have been populated with grass and small shrubbery. There were no hutments or human settlements to be spotted, except one tiny hutment, which seemed to belong to the guards/watchmen. From the other side of the road that led to this spot, one could see the vast stretch of lush green forest and Film City in Goregaon. The local activist who accompanied us pointed to a flag waving in there and exclaimed, “The British flag can still wave only in Film City.”

Response from state machinery

The Times of India (TOI) reported that Maharashtra environment minister called for a Forest Department inquiry into the fire, but that state forest minister Sudhir Mungantiwar said the area in question did not fall under his department. Kadam said, “There are allegations that the area was purposely set on fire and I have asked Mungantiwar to conduct an inquiry.” However, Mungantiwar said that the land was a private plot, and also that “Some part of Aarey Colony too has been affected but that too is under the dairy development department”. Dindoshi MLA Sunil Prabhu of the Shiv Sena has also sent a letter to Maharashtra Chief Minister Devendra Fadnavis, calling for a high-level CID inquiry into the fire.

The fire, which spread across three kilometres, occurred on land belonging to the F. E. Dinshaw trust and has been taken over by K. Raheja Realty for “development purposes”, TOI reported. However, a Raheja spokesperson refuted locals’ allegations that there were repeated and deliberate fires set in the area, telling TOI, “It is an open area with dry grass and as in every forest, when a cigarette or beedi is tossed, it catches fire. The adjoining SGNP often sees fires. We have built a boundary wall around our plot except at one spot where there is a nullah and hence, we cannot construct anything there. This opening is used by anti-social elements to access the plot. We have requested the BMC to allow us to put grills there as guards are unable to stop people from entering the area”. In 1996, K. Raheja Realty acquired approval to build bungalows on the plot. However, the company’s spokesperson said, “There are no plans to construct them immediately but the permission is regularly renewed”.

Was the fire deliberate? Activists speak

Amrita Bhattacharjee, environmental activist associated with the Save Aarey campaign, has been crucial in bringing the ‘Aarey question’ to the forefront of public debate. She alleges that the fire was deliberate. Amrita has been instrumental in organising Warli Adivasis to demand their rightful claim to forest land and their livelihood. She accompanied our team to the location of the fire. She said, “As you can see, it’s evident that there are no human settlements around. How can the fire catch on its own? We (activists associated with Aarey) are sure that the fire was deliberate.” When we asked her about the potential reasons, she said, “They are hell bent on proving this is not forest land. These fires ensure that no new saplings grow and the land remains dry and barren.” Amrita also highlighted the difficulties activists face in getting information related to the possession and exact demarcation of private forest land. “Most of the times, individual RTIs get rejected with some bureaucratic answers.” A local resident of the area, who spoke to us on the condition of anonymity, also indicated that it was an open secret among locals that deliberate fires were set.

CJP spoke with environmental activist Zoru Bhathena, who had a similar opinion. He said that as per the Maharashtra (Urban Areas) Preservation of Trees Act, 1975, even saplings are considered part of forests. Section 2(c) of the Act says that “to fell a tree” includes burning or cutting. “Though the same Act has provisions for fine and imprisonment for anyone who fells any tree in contravention of the Act, I have never seen anyone getting punished for felling trees,” said Bhathena.

He highlighted that though the area has been identified as an eco-sensitive zone, attempts are being made to make it look like it is not an eco-sensitive zone. “This plot of land comes under the no-development zone as per the development plan. However, no-development zone (NDZ) is a misnomer as development is permissible with certain exceptions.” He added, “The fancy buildings and the IT Park you see nearby, are a result of this exception.”

Bhathena indicated that fires have been set repeatedly to prevent growth, because if the area became a densely vegetated “proper” forest, it would not be possible to continue any development-related activities on it. This was the first time a fire “spread to this magnitude,” he said.

Key provisions in forest-related laws

It must be noted that, as per the Forest (Conservation) Act of 1980, which was amended in 1988, the state government or any other authority must obtain prior approval from the central government to issue “any order directing-

 

(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

(ii) that any forest land or any portion thereof may be used for any non-forest purpose;

(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.

 

In this context, “non-forest purpose” indicates “the breaking up or clearing of any forest land or portion thereof for-

(a)  the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;

(b)  (b) any purpose other than reafforestation;”

 

However, it excludes work connected or “ancillary to conservation, development and management of forests”.

Issues relating to private forest land

The Supreme Court, in its judgment dated January 30, 2014, in the case of Godrej & Boyce Mfg.Co.Ltd. & Anr vs State Of Maharashtra & Ors issued some guidance regarding private forest land. Point 11 of the judgment says, “…..the Indian Forest Act, 1927 did not apply to ‘waste land’ (due to the Indian Forest (Bombay Amendment) Act, 1948) with effect from 4th December 1948.”

In point 16, the judgment highlighted that the first amendment to the Indian Forest Act, 1927 was by the Indian Forest (Bombay Amendment) Act, 1948 being Bombay Act no. 62 of 1948. It stated, “By this amendment (which came into force 4th December 1948), the three significant changes that we are concerned with were: (i) Insertion of Section 34A in the Forest Act[3] whereby an inclusive definition of “forest” was incorporated for the purposes of the chapter; (ii) Substitution of Section 35(1) of the Forest Act[4] dealing with protection of forests for special purposes, including regulatory and prohibitory measures; (iii) The words ‘waste lands’ or ‘land’ occurring in sub-sections (2) and (3) of Section 35 of the Forest Act[5] were deleted. Therefore, ‘waste lands’ were taken out of the purview of the Forest Act (as applicable to the State of Bombay) with effect from 4th December 1948.”

In 1975, the (Maharashtra) state legislature passed the Maharashtra Private Forests (Acquisition) Act, through which it defined forests and private forests. Section 3 (vesting of private forests in the State Government) of the Act said “…all private forests in the State shall stand acquired and vest, free from all encumbrances, in, and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the State Government, and all rights, title and interest of the owner or any person other than Government subsisting in any such forest on the said day shall be deemed to have been extinguished.”

This made it impossible to continue the use of private forests for construction and other activities.

Is Aarey a forest?

In an interview with The Indian Express, Aarey Milk Colony Chief Executive Officer N. V. Rathod seemed to echo Raheja’s explanation for the fire. When asked about allegations that fires are deliberately set to encroach on or develop land, Rathod said, “There are incidents of fire in Aarey but most are reported in summer, that too very small ones. If there are fires, we mobilise our machinery to douse them immediately. One of the reasons for such fires are people throw bidi or cigarette on dry leaves or dry patches. As summer temperatures are high, this sparks a fire in the bushes but it is brought under control immediately. As of now, no big fire has been reported in Aarey. We are prepared for any eventuality.” Of the recent fire, he said that it had “nothing to do with Aarey Milk Colony,” but acknowledged that it “spread near Aarey’s land,” saying that no animals were harmed.

Notable was Rathod’s answer when asked about environmentalists’ arguments that Aarey is a forest, making projects such as the proposed Metro carshed violative of the Forest Act. Rathod said, “Aarey was never shown as a forest in our records. It’s not part of the forest”.

In October 2018, non-governmental organisation Vanashakti informed the Bombay High Court that although the 2,076 hectare Aarey Colony was transferred to the Maharashtra Forest Department in 1969, “the records of it are missing, with neither the park nor the forest officials being aware of it,” the Hindustan Times said, noting that the area is categorised as “unclassed forest in the Sanjay Gandhi National Park (SGNP)”. Vanashakti acquired a 1969 dairy development board directive through a Right To Information (RTI) application; according to it, the Forest Development Corporation of Maharashtra Limited (FDCM) in Nagpur sent a letter to the FDCM regional manager in Thane on July 22, 1980. The letter said, “Of the 2076.073 ha, 575 ha shall be extracted for a recreational zone and the rest of the land (1501.073 ha) will continue to remain a major part of the Borivli National Park,” Hindustan Times reported, adding that Vanashakti alleged that the Forest Department hid this to allow construction, and that there was “indiscriminate felling of trees” on the margin of the national park to make way for construction projects. Vanashakti’s petition stated, “If the missing land is not protected and preserved, the flora, fauna (including endemic species) and natural habitat of several endangered animals, birds, insects and other living organisms will be under immediate jeopardy,” adding, “It is pertinent to note that for several years, the missing land was a part of SGNP, but in the recent land records, 1501 hectares is no longer accounted for.”

The contentious history of ‘forests’ in India

What exactly constitutes a ‘forest’ continues to remain nebulous in India, and Amrita Bhattacharjee told CJP that forests are under attack because of this lack of a clear definition. Despite the fact that a National Forest Policy was promulgated in 1988, India lacks a formal definition of ‘forest’. In 2018, the government put forth a new Draft National Forest Policy, one that sparked criticism from environmentalists and other experts. LiveMint stated, “Most ecologists say the new draft is a watered-down version of the current policy, and poor in content. Some say it is a hurriedly drafted document that undermines the role of community in forest conservation, while others point to how the new draft guidelines completely ignore widespread forest diversions. Even peer-reviewed scientific research shows how large blocks of forests are getting fragmented into smaller patches due to the ill-planned intrusion of developmental projects. Forest fragmentation has devastating impacts and one of the most serious threats to long-term conservation, but the new draft policy proclaims: ‘There has been an increase in forest and tree cover and reduction in the diversion of forest land… despite…increasing population, industrialization and rapid economic growth.'”

Forests seem to be under threat across the country. In 2013, an RTI application filed by environmental lawyers Rahul Choudhary and Ritwik Dutta uncovered that, on average, India loses 135 hectares of natural forest land every day due to development projects. As per Choudhury and Dutta, the government passed around 10,000 approvals related to forest diversions in just 2017.

The growing danger of fires in Aarey

“Previously so many species of birds would come around this season. This time I have barely seen any,” lamented a resident of Aarey Colony in Goregaon. Reportedly, the recent fire reached very close to nearby residential areas, and even impacted some MHADA buildings. Activists allege that tree cover in the area has dwindled over the years. Particularly revealing are the satellite images of the specific point in question.

A satellite image of Aarey over the years

CJP team members who visited the area were unable to ascertain how human error such as leaving behind a lit cigarette could have sparked the fire, particularly one that swelled to such a large size. The Mumbai Fire Brigade report mirrors activists’ concerns. While the report could not uncover what specifically caused the blaze, it has said that suspicious activity cannot be ruled out. The cause of the fire has been described as “doubtful” by the report, which has also said that it may be reviewed later if more evidence surfaces. The Fire Brigade found some bottles and a burnt tyre during its inspection, indicating trespassing.

Taking all the facts into account, along with activists’ statements and the fire brigade’s report, CJP believes there is a strong need for both an official, as well as a citizens’ inquiry into the episode. If indeed the fires have been deliberate then humanity needs to worry over its own apocalypse and slow degradation. If not, then one still needs to investigate into the source of the fires and find ways and mechanisms to sustain the only green cover Mumbai has.

 

Related:

How Adivasis in Aarey are at risk of losing their land and livelihood

Meet this Lover of the Aarey Forest, Prakash Bhoir

In Pictures: A Walk Through Aarey

 

 

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