Bombay High Court
Smt. Sugandha Dhanjay Purav vs Thane Municipal Corp. Through The ... on 13 January, 2021
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
Digitally
Vidya signed by
Vidya S. Amin
S. Date:
2021.01.18
Amin 20:22:06
+0530
smpil-1-2020.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SUO MOTU PUBLIC INTEREST LITIGATION NO.1 OF 2020
High Court on its Own Motion ... Petitioner
(in the matter of Jilani Building at Bhiwandi)
vs.
1 Bhiwandi Nizampur Municipal Corporation
2 Municipal Corporation of Greater Mumbai
3 Kalyan Dombivali Municipal Corporation
4 Ulhasnagar Municipal Corporation
5 Thane Municipal Corporation
6 Vasai Virar Municipal Corporation
7 Mira-Bhayander Municipal Corporation
8 Navi Mumbai Municipal Corporation
9 State of Maharashtra
Through Secretary,
Urban Development Department
10. State of Maharashtra
Through Secretary,
Home Department.
11. Maharashtra Housing & Area Development
Authority.
12. City & Industrial Development Corporations
of Maharashtra (CIDCO)
13. Mumbai Metropolitan Region Development
Authority (MMRDA) ... Respondents
with
WRIT PETITION (ST) NO.15917 OF 2019
Smt.Sugandha Dhanjay Purav ... Petitioner
vs.
1.Thane Municipal Corporation through
the Municipal Commissioner
2. Thane Municipal Corporation through
the Assistant Commissioner
3. Dhanaji Velji Shah.
4. Mr.Omprakash Nandkishor Choube
5. Alka Patil
6. State of Maharashtra ... Respondents
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smpil-1-2020.doc
Mr. Sharan Jagtiani, Senior Advocate with Mr. Rohan Surve, Amicus
Curiae with Mukhatar Khan, Mr. Priyank Kapadia & Shraddha Achaliya,
Advocates.
Mr. A.A. Kumbhakoni, Advocate General with Mr. P.P. Kakade,
Government Pleader with Mr. M.M. Pable, AGP for State.
Mr. A.S. Rao, for Respondent no.3 - Kalyan Dombivli Municipal
Corporation.
Mr. A.Y. Sakhare, Senior Advocate with Mr. Santosh Parad, Ms. K.H.
Mastakar with Mr. Vinod Mahadik with Joel Carlos, for Respondent-
Municipal Corporation Greater Mumbai.
Mr. Kalpesh Patil i/b. Vijay D.Patil for Respondent no.4-Ulhasnagar
Municipal Corporation.
Mr. M.U. Limaye, for Respondent no.5-Thane Municipal Corporation.
Mr. N.R. Bubna, for Respondent no.7-Mira Bhayander Municipal
Corporation.
Mr. Sandeep Marne, for Respondent no.8-Navi Mumbai Municipal
Corporation.
Ms. Swati Sagvekar, for Vasai Virar City Municipal Corporation.
Mr. Prakash Lad with Aparna Kalathi, Sayli Apte and Priyanka Naik, for
Respondent no.11 (MHADA).
CORAM : DIPANKAR DATTA CJ &
G.S.KULKARNI, J.
DATED : 13 January 2021.
ORDER:
1. By our order dated September 24, 2020, we have set out the reasons to initiate this suo motu Public Interest Litigation, which interalia raises serious concerns in regard to the dilapidated buildings and the mushrooming of illegal constructions within the limits of the Mumbai Municipal Corporation and in the areas of various municipal 2 of 15 smpil-1-2020.doc corporations surrounding Mumbai. We, accordingly, directed the Municipal Corporations to file their reply affidavits. Considering the importance of the issues, we requested the learned Advocate General to appear for the State Government as also we appointed Mr. Jagtiani, learned senior counsel along with Mr. Rohan Surve, learned Advocate as amici curiae to assist the Court.
2. In our further order dated October 15, 2020, we observed that the reply affidavits filed by some of the Corporations majorly touched upon dilapidated buildings; however, the data with regard to unauthorized/ illegal constructions was conspicuously absent. Hence, we directed such municipal corporations to file additional reply touching these issues. We directed that the Urban Development Department of the Government of Maharashtra shall look into all the reply affidavits/additional reply affidavits, and file a comprehensive additional affidavit indicating its version of the scheme that it proposes to frame, as submitted by the learned Advocate General. We observed that the Urban Development Department may suggest measures that may be undertaken by the Municipal Corporations to check and demolish unauthorized/illegal constructions and also to identify dilapidated buildings for demolition/repair so as to avert collapses and loss of further lives. The reply affidavits were to be shared with Mr. 3 of 15 smpil-1-2020.doc Jagtiani, learned amicus curiae so as to enable him to prepare a comprehensive report on the stand taken by each of the Municipal Corporations, as well as the version of the Urban Development Department.
3. By our further order dated November 26, 2020, considering the nature of the issues and the complexion of the different planning authorities as involved, we directed that the City and Industrial Development Corporation of Maharashtra (CIDCO) as also the Mumbai Metropolitan Region Development Authority (MMRDA) be impleaded as respondents to this proceedings.
4. Learned amicus has placed on record an exhaustive preliminary report dated November 26, 2020, which, interalia, deals with the relevant facts and figures touching the issues, as revealed from the reply affidavits filed on behalf of the Municipal Corporations. The report also refers to the orders passed by this Court and the Supreme Court concerning the issues arising in the present proceeding and the suggestions of the learned amicus.
5. Learned amicus has drawn our attention to an order dated 4/5 June, 2018 passed by a coordinate bench of this Court in Writ Petition 4 of 15 smpil-1-2020.doc No. 8243 of 2017 (Bilal Salahuddin Shaikh vs. Commissioner, Bhiwandi Nizampur Municipal Corporation & Ors.). By such order, comprehensive directions were issued by the Court in regard to the illegal constructions within the area of Bhiwandi Nizampur Municipal Corporation. The Court observed that large number of illegal constructions had come up in the city of Bhiwandi Nizampur; however, no action was taken by the said Corporation. The Court also noted various difficulties faced by the Corporation on account of which action could not be taken on illegal structures which had come up within its limits. The relevant observations read thus:
"2. A judicial notice will have to be taken of the fact that large number of writ petitions are being filed in this Court complaining about inaction of the said Corporation to take action of demolition in respect of large number of illegal constructions which are coming up in the city of Bhiwandi Nizampur. In fact, the case made out in some of the petitions is that though the Municipal officers were fully aware about the fact that illegal RCC constructions were in progress, there were no steps taken by them to stop the illegal constructions and to demolish the same. In Writ Petition No. 11466 of 2016 and other connected petitions, some of which are on board, a detailed order was passed by a Division Bench of this Court on 3 rd August, 2017 wherein a judicial notice is taken of the fact that though large number of illegal constructions have come up in the city, no action has been taken by the said Corporation. This Court noticed that though the citizens have been making complaints about the huge illegal constructions undertaken in the city, no action is being taken by the Municipal officers. In fact, the said order notes difficulties expressed by the Municipal Corporation as regards the failure to sanction adequate number of posts for dealing with the issue of illegal constructions."
6. In the above order, the Court also noted its earlier order dated August 3, 2017 wherein the Court ordered that the Deputy Commissioner (Encroachment) on the establishment of the said 5 of 15 smpil-1-2020.doc Corporation was to be held responsible for prevention of the illegal structures within the limits of the Municipal Corporation and for taking prompt action for demolition of the same. The Court also took note of its earlier directions, that the Municipal Corporation was to undertake a survey of illegal structures in the entire city in a phase-wise manner and to complete the survey within six months of the said order. A Grievance Redressal Mechanism was also directed to be established so that the citizens can lodge their complaints and that the complaints be immediately entered in the register maintained manually and/or electronically. The said order also emphasized that it was the obligation of the Corporation to take prompt action to prevent illegal constructions. The Court disposed of the said petition by issuing comprehensive directions and by confirming the interim order dated August 3, 2017.
7. Considering such orders of this Court passed in Bilal Salahuddin Shaikh's case (supra), which not only cautioned the Bhiwandi Nizampur Municipal Corporation about the illegal constructions but set into motion a mechanism to take action on illegal structures, it is an immeasurable surprise to us as to how the incident of collapse could occur on September 23, 2020 taking 16 lives including 8 children, which has made us initiate this suo motu proceeding. In our opinion, 6 of 15 smpil-1-2020.doc the collapse could have been very well averted if the directions of this Court as made in the said case were to be followed by the concerned municipal officers, as it is informed that the said building also had two floors illegally constructed.
8. Learned amicus curiae has also drawn our attention to an order dated October 4, 2018 passed by a coordinate Bench of this Court in Suo Motu PIL No. 2 of 2018, of which one of us (G.S. Kulkarni, J.) was a member. In such order, the Court observed on the avalanche of cases coming to the Court on illegal constructions and encroachments on the limited land as available in the island city of Mumbai. It was noted that the planning authorities were struggling hard to overcome the menace of large number of illegal constructions, being wantonly put up without any fear of law. The Court observed that a mechanism was required to be evolved to remove such illegalities and also to include a measure of geo-tagging as adopted by the Municipal Corporation of Hyderabad. It was observed that it is high time that modern technology is best used at every possible juncture by the authorities. In this context, the Court referred to an order dated September 26, 2018 passed in M/s. Pioneer India Developers Pvt. Ltd. vs. The Senior Inspector of Police, Santacruz Police Station & Ors. [Writ Petition (L) No. 1270 of 2018]. The Court also noted the submissions of the 7 of 15 smpil-1-2020.doc learned Advocate General, that a Government Resolution dated May 6, 2016 was issued by the Urban Development Department in exercise of the powers under section 154 of the Maharashtra Regional and Town Planning Act, 1966 directing the designated officers of the local bodies and the planning authorities to make use of high resolution satellite images/aerial photographs, by remote sensing techniques. It was observed that these techniques be used for preparing a detailed base map for utilizing the same while granting permission for construction, sanctioning of plans, granting of completion certificate, etc. as such techniques can be used for detecting encroachments and illegal constructions. The designated officers were directed to upgrade these maps every six months. It was recorded that the State of Maharashtra had already introduced GIS mapping system in the State to survey properties in 370 cities in the State. The Court accordingly issued the following directions:
"12.(I) The Principal Secretary, Urban Development Department shall constitute a committee of experts which will include technocrats in IT technology, satellite mapping, experts in data management, experts in civic administration and high level government official having special know how and expertise in civil issues;
(II) The committee so constituted shall prepare:
(i) a standard plan/methodology to undertake automated satellite imaginary/geo-imaging, automated slum identification aligorithm, encroachments, using remote sensing data, of the municipal area;
(ii) device [sic.] an electronic method to monitor the constructions legal or otherwise, encroachments on public spaces like roads etc. in each of the wards;
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(iii) device [sic.] a methodology by keeping live monitors so as to keep the officers informed of the illegal constructions and encroachments;
(iv) device [sic.] an electronic methodology to sound immediate alerts of any illegal constructions, encroachments not only to be served on the concerned but to have them in the public domain;
(v) to constitute a cell to have an overall supervision mechanism on such unauthorized activities and attending of the issues, by the concerned officers.
(vi) to form a cell of experts having technical background to physically survey the municipal area, to implement and/ or support the methodology and to make periodic reports.
13. We expect the Principal Secretary, Urban Development Department to constitute a committee as per our directions at the earliest and hold meetings. An urgent meeting with the Commissioner of Mumbai Municipal Corporation be held by the Principal Secretary, Urban Development Department.
14. Mr. Sakhare, learned senior counsel for the Corporation submits that the IT Department of the Corporation has taken up the issue and has started working on the same point in respect of survey of the property and for property tax a GIS mapping system is already introduced by Mumbai Municipal Corporation.
15. We expect the State and the Corporation to deal with this issue by giving utmost priority. Further progress be intimated to this Court on the next date.
16. Stand over for 19th October, 2018 for directions."
(emphasis supplied)
9. We are not informed on behalf of the State Government as to whether the directions as contained in clause (v) and (vi) of paragraph 12 of the above order were complied to constitute a Cell in the Municipal Corporations, so as to have an overall supervisory mechanism on unauthorized and illegal constructions to make a physical survey of the municipal wards to implement and/or support the methodology, 9 of 15 smpil-1-2020.doc and to make periodic reports. As rightly pointed out by learned amicus, the directions as contained in clause (v) and (vi) of paragraph 12 of the said order are in aid of the directions as made in clauses (i) to (iv) thereof. The Court had expected the Principal Secretary, Urban Development Department to constitute such committees at the earliest and hold meetings.
10. In our opinion, if the above directions of the Court in Suo Motu PIL No. 2 of 2018, which were made almost more than two years back, were to be complied in letter and spirit, it certainly would have been a different state of affairs concerning the illegal constructions as also encroachments in all such municipal areas with which we are concerned in the present proceedings. Be that as it may, considering the reply affidavits and the submissions as made by learned amicus curiae and learned counsel for the respondents, it appears to us that there is absolute lack of data in regard to the compliance of the order dated October 4, 2018 passed in Suo Motu PIL 2 of 2018, namely, in regard to the ward-wise exercise to be undertaken by the various Municipal Corporations of survey and verification of the illegal structures and dilapidated buildings. Such exercise, as expected from the Corporations, has not been undertaken.
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11. There can be no two opinions that proper planning of the municipal areas of the Municipal Corporations before us which include the developed and developing Corporations, can never be achieved if the persons who by law are vested to govern the affairs of the Corporation either by virtue of their employment or election as Corporators (who assumed such petition by their volition) have no will to weed out such lawlessness of illegal constructions, dilapidated buildings and perpetration of encroachments. We have the ideal laws staring at us which expects us to administer and maintain our cities with high standards of municipal governance. The reasons as to why there is a gross failure to achieve such goals and ideals, reflecting very poorly on the municipal administration are not too far to be noticed. It can certainly be said that there is failure of long-long years in preventing illegal constructions, encroachments and having such buildings which are dilapidated and which may lead to collapse, resulting in loss of innocent human lives. In M.C. Mehta vs. Union of India, reported in (2006) 3 SCC 399, the Supreme Court has echoed such pain in so many words, as under:
"61. Despite passing of the laws and repeated orders of the High Court and this Court, the enforcement of the laws and the implementations of the orders are utterly lacking. If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without 11 of 15 smpil-1-2020.doc connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens. Those who own the properties that are misused have also implied responsibility towards the hardship, inconvenience, suffering caused to the residents of the locality and injuries to third parties. It is, therefore, not only the question of stopping the misuser but also making the owners at default accountable for the injuries caused to others. Similar would also be the accountability of errant officers as well since, prima facie, such large-scale misuser, in violation of laws, cannot take place without the active connivance of the officers. It would be for the officers to show what effective steps were taken to stop the misuser."
12. Some basic questions which ponder us are:
(i) Is it not that every municipal corporation has adopted such nebulous approach to such important facets touching the lives of the citizens, who are residents of such municipal areas?
(ii) Is it not that those citizens who have legal/authorized premises and who pay municipal taxes have a legitimate expectation that their city is encroachment free, that there are legal and authorized constructions, that they are provided with good urban infrastructure facilities and planning, and of a quality life in such urban cities?
(iii) Whether the elected representatives (corporators), who are an integral part of the Corporation, would not have an obligation and accountability qua their constituencies and the citizens of the respective wards in regard to illegal constructions, encroachments, lack of planning etc.? Should they not be held accountable on the principle 12 of 15 smpil-1-2020.doc that every public position a person holds is accompanied with duties, obligations and responsibilities ?
13. On every occasion it cannot be that the officers, who are either Government employees or of the Municipal Corporation, are to be held responsible for lawlessness and loss of human lives. Any dereliction of such basic municipal duties by all such stakeholders needs to be deprecated and recourse to the process of law, civil and criminal, is required to be taken to its logical conclusion in the event such illegalities are noticed, much less sustaining and perpetrating such illegalities.
14. In view of the above discussion, we are constrained to pass following further orders:
(i) The Municipal Corporations are directed to place on record ward-wise data of illegal constructions which can be classified into constructions of the following categories:
(a) constructions without permission (illegal constructions);
(b) construction of additional area/floor(s) beyond permission;
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(c) constructions of a nature amounting to major deviation affecting the structural stability of the buildings;
(ii) The Municipal Corporations are also directed to place on record details of actions so far taken in regard to such illegal constructions as specified in (i) above;
(iii) The Municipal Corporations are also directed to indicate as to whether any litigations are pending along with the details of the forum where such proceedings are pending and the orders passed therein;
(iv) The Municipal Corporations shall also set out the details in regard to the compliance, as sought by the Municipal officers, of the requirements of Section 265A and 267A of the Maharashtra Municipal Corporations Act, 1949 and to Section 152A and Section 353B of the Mumbai Municipal Corporation Act, 1888;
(v) The State Government is also directed to place on record compliance of the order dated October 4, 2018 passed in Suo Motu PIL 2 of 2018;
(vi) All such reply affidavits be filed within six weeks from today. Copies of the affidavits be served on the learned amicus curiae, who would assist the Court on such 14 of 15 smpil-1-2020.doc affidavits. The learned amicus curiae shall thereafter have further two weeks time to go through such affidavit and make his comments. The proceedings accordingly stand adjourned to March 10, 2021.
15. Office to list Suo Motu PIL No. 2 of 2018 along with this petition.
16. Parties to act on the authenticated copy of this order.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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