Bombay High Court
A.H. Wadia Trust And Ors vs Municipal Corporation Of Greater ... on 15 January, 2016
Author: A.S. Oka
Bench: A.S. Oka, V.L. Achliya
1 wp-2396,2398.13,1470.12
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2396 OF 2013
WITH
NOTICE OF MOTION (ST.) NO.212 OF 2015
Sayyed Ataullah Qadri ... Petitioner
Versus
Government of Maharashtra & 6 Ors. ... Respondents
WITH
WRIT PETITION NO.1470 OF 2012
A.H. Wadia Trust and Ors. ... Petitioners
Versus
Municipal Corporation of Greater Mumbai & Ors. ... Respondents
WITH
WRIT PETITION NO.2398 OF 2013
WITH
NOTICE OF MOTION (ST.) NO.211 OF 2015
Sayyed Mehboob Qadri ... Petitioner
Versus
Government of Maharashtra & 6 Ors. ... Respondents
------------------------
W.P. No.2396 of 2013 with W.P. No.2398 of 2013.
Mr. Piyush Raheja a/w Sunil Gangan & Mr. Jayesh Mestry i/by RMG
Law Associates, for Petitioner in W.P. No.2396 of 2013 and W.P. No.2398
of 2013.
Mr. A.Y. Sakhare, Senior Counsel a/w Mrs. Geeta Jogalekar, for the
Respondent -BMC.
Ms. Geeta Shastri, Additional Government Pleader, for Respondents -
State in all matters.
Ms. Kiran Bagalia, for Respondent - MMRDA.
Mr. Prathamesh Dube i/by Rutuja A. Ambekar, for Respondent No.7.
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W.P. No.1470 of 2012
Mr. Mikhail Behl i/by M/s. Vigil Juris, for Petitioners.
CORAM : A.S. OKA & V.L. ACHLIYA, JJ.
DATE ON WHICH JUDGMENT IS RESERVED : 29th OCTOBER, 2015
DATE ON WHICH JUDGMENT IS PRONOUNCED : 15th JANUARY, 2016
JUDGMENT (PER A.S. OKA, J.):-
1. As common issues arise in these Petitions, the same have been taken up together for final disposal.
2. Writ Petition No.2396 of 2013 relates to the land bearing Survey No.127(Part) and City Survey No.6564 B (Part) situated at village Kole Kalyan admeasuring 417.16 square meters at Santacruz (E), Mumbai - 400 029. The Petitioner is claiming to be the owner of the said land. The Petitioner is also claiming to be in legal possession of the land bearing Survey No.126 (P) admeasuring 517 square meters situated at Chunabhatti, Santacruz (East), Mumbai 400 029. In respect of this land, he is claiming that he has perfected his title by adverse possession. The case of the Petitioner in this Petition is that on the land bearing CTS No.6564 B (Part) admeasuring 417.16 square meters which is owned by him, there are eight sheds constructed which were used for storing rubber and metal material. The aforesaid lands have been more particularly described in paragraph 1 of the Petition. It is 2 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 3 wp-2396,2398.13,1470.12 claimed that a portion of the said lands was taken over by the State of Maharashtra for the purposes of widening of Mithi River. It is claimed that the land was taken over in terms of the directions issued by this Court in PIL Writ Petition No.2116 of 2005. The second Respondent in the said Writ Petition is the Mumbai Municipal Corporation (for short "BMC") established under the Mumbai Municipal Corporation Act, 1888 (for short "the said Act of 1888"). The fourth Respondent is the Mumbai Metropolitan Region Development Authority (for short "MMRDA") which is established under the Mumbai Metropolitan Region Development Authority Act, 1974. The third Respondent is the Mithi River Development and Protection Authority (for short "the said Authority") which is established by the Government of Maharashtra.
3. In the said Petition, it is pointed out that the BMC issued notices to the Petitioner alleging that eight sheds were illegal and therefore, the same will be demolished. The Petitioner replied to the notice by pointing out that the sheds were legal. It is alleged that in October 2005 and in March 2006, an area of about 400 sq.meters out of the land in lawful possession of the Petitioner was acquired/excavated.
The Writ Petitioner filed Writ Petition No.2825 of 2006 seeking compensation on account of the act of the Respondents of taking over possession of his land. The Petitioner is relying upon the order dated 3 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 4 wp-2396,2398.13,1470.12 16th January, 2007 which disposed of the said Petition along with Writ Petition No.2772 of 2006 (filed by the Petitioner in Writ Petition No.2398 of 2013). The material part of the order dated 16 th January, 2007 reads thus :
"2. The Petitioners claim to have storage godowns on a parcel of land which is on the bank of Mithi River and they are supposed to be in the stretch between C.S.T. Bridge at Vakola and Powai Lake. Their grievance is that part of their structures is removed and the land is excavated. This is essentially for the widening of the Mithi River whose water course is to be maintained properly. This has become necessary in view of the floods which took place on 26 th July, 2005. Respondents No.2 to 4 are taking necessary steps in that behalf in view of the orders passed by this Court in Writ Petition No.2116 of 2005.
3. Grievance of the Petitioners is, as stated above, that part of their structures is removed, land is excavated and they are not being given compensation. It is also their case that whatever has been done is without due process of law. The actions, which have been taken, are in view of urgent requirement. The only thing that we can say is that the Petitioners may produce photocopies of their documents of title to the authority concerned. They should as well make available the originals for inspection. On the authority being satisfied that the Petitioners do have any genuine claim, undoubtedly they are expected to be compensated. The Petitioners may tender the documents and offer inspection within about 2 weeks from today. They should 4 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 5 wp-2396,2398.13,1470.12 offer them to Respondent No.3 - MRDPA which may forward those documents to whichever is the authority which is in-charge of the necessary steps. We expect the concerned authority to proceed expeditiously and to see to it that the Petitioners are compensated in accordance with the law."
The third Respondent in the said Writ Petition was the said Authority. A direction was issued under the said order to the said Authority to ensure that the Petitioner is compensated in accordance with law.
4. The Petitioner relied upon the subsequent correspondence made by him with various Authorities. The Petitioner is relying upon a joint survey. The Petitioner is also relying upon the order dated 30 th January, 2014 in the present Petition as well as the subsequent order dated 30th July, 2015. The first prayer in the Petition is for directing the Respondents to pay to the Petitioner market value compensation for area of 400 square meters of land acquired for the purposes of Mithi River. There is also a prayer made seeking injunction against the Respondents restraining them from acting upon the notice dated 16 th March, 2015 and from excavating or acquiring any part of the lands held by the Petitioner. In the present Petition, on 30 th January, 2014, an ad-interim order was made in terms of paragraph 3 which reads thus :-
5 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 6 wp-2396,2398.13,1470.12 "3. In the meanwhile, in view of the averments made in para 33, the Petitioner is still waiting for compensation since long, we are inclined to observe that the officers of Respondent No.2 before taking any action on the property claiming to be owned by the Petitioner, one weeks' notice be given to the Petitioner before taking any action of demolition of sheds and excavation."
5. There was a further order made by this Court in this Petition along with the connected Petitions. Clause 1 to 3 of the said order read thus :-
1. We have perused the order dated 15th June, 2015.
There is an affidavit filed by S. K. Salimath, Deputy Secretary, Urban Development Department, on behalf of the State Government. To the said affidavit, a copy of Government Resolution dated 29th June, 2015 has been annexed. The Government Resolution provides that for different areas, Mumbai Municipal Corporation and Mumbai Metropolitan Region Development Authority shall be the Competent Authorities to do the work of land acquisition and rehabilitation of the project affected persons etc.
2. In the light of the Government Resolution dated 29 th July, 2015, now both the Mumbai Municipal Corporation and Mumbai Metropolitan Region Development Authority will have to take a stand in relation to the property subject matter of these two 6 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 7 wp-2396,2398.13,1470.12 petitions (Writ Petition Nos. 2396/2013 and 1470/2012). Both the parties will have to state whether the property subject matter of the petitions or any part thereof fall within their respective jurisdictions as specified in Government Resolution dated 29 th July, 2015.
3. We direct both the Mumbai Municipal Corporation and the Mumbai Metropolitan Region Development Authority to file additional affidavits on this aspect. Additional affidavit shall be filed on or before 21 st August, 2015. Place the petitions on 25th August, 2015.
6. On 22nd September, 2015, a letter dated 19 th September, 2015 addressed by the State Government to the Municipal Commissioner of the BMC was placed on record by the State Government directing the BMC to deal with the claims for compensation of the Petitioners in these three Petitions. The Petitions were adjourned to enable the learned Senior Counsel representing the Municipal Corporation to take instructions from the Municipal Commissioner.
7. There is an affidavit-in-reply filed by Ms. Ashwini Atkare, Planner of the MMRDA. It is stated in the said reply that the said Authority has been constituted by the State Government under the 7 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 8 wp-2396,2398.13,1470.12 Government Resolution dated 19 th August, 2005, a copy of which is annexed as Exhibit-A to the said affidavit. The said Authority is referred in the said affidavit as MRDPA. In paragraphs 2 to 5 of the said affidavit, it is stated thus :-
"2. I further state that, by letter dated 9th April 2014 Urban Development Department (UDD), Govt. of Maharashtra (GoM) has clarified regarding the jurisdiction of MMRDA and MCGM and the works to be undertaken by these Authorities. The GoM clarification mentions that, MRDPA is not the Statutory Authority and hence acquisition of land and rehabilitation work cannot be undertaken by the said authority.
3. I further state that, in order to have clarity about the functions of the MCGM and the MMRDA in carrying out work in their respective stretches, UDD clarification dated 9th April, 2014 has clarified that - for Mithi River works from Vihar Lake to the C.S.T. Bridge on Santacruz - Chembur Link Road (i.e. 11.84 km) and for Vakola nala works from the Airport upto Vakola bridge on Santacruz-Chembur Link Road (i.e. 6 km), MCGM shall undertake implementation of the project, Rehabilitation of the Protect Affected Persons (PAPs), Land acquisition etc as Planning Authority and Competent Authority.
For Mithi River works from CST Bridge on Santacruz Chembur Link Road upto Mahim creek (i.e. 6 kms) and for Vakola Nalla works from Vakola bridge on 8 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 9 wp-2396,2398.13,1470.12 Santacruz-Chembur Link Road upto Bandra Kurla Complex (i.e. 1.8 kms) MMRDA shall undertake implementation of the project, Rehabilitation of the Project Affected Persons (PAPs), Land acquisition etc as Planning Authority and Competent Authority.
4. I further state that, by UDD clarification dated 9 th April, 2014, the State Government has also clarified that the Mithi River Development and Protection Authority will coordinate between MCGM and MMRDA and will comply with the directions given by the Empowered Committee of MRDPA. (Copy of the letter enclosed as Exhibit-B).
5. I further state that the land bearing S. No.127 (part) and CTS No.6564-B (part) admeasuring about 417.16 meters at Chunabhatti and S. No.126 (part) admeasuring 517 meters (title of the land to be confirmed by competent Authority) prima face falls within the jurisdiction of MCGM in accordance with the above clarification dated 9th April 2014. However actual site survey may be carried out by MCGM to ascertain the same."
8. There is an affidavit dated 30 th July, 2015 filed by Shri S.K. Salimath, the Deputy Secretary of the Urban Development Department in the State Government to which a copy of the affidavit dated 30 th July, 2015 filed by the same officer in Writ Petition No.1470 of 2012 has been annexed. In the said affidavit dated 30th July, 2015, Shri Salimath 9 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 10 wp-2396,2398.13,1470.12 has stated that the said Authority was established vide Government Resolution dated 19th August, 2015. In paragraphs 3 to 7 of the said affidavit, Shri Salimath has stated thus :-
"3. I further state that, by letter dated 9th April 2014 Urban Development Department (UDD), Government of Maharashtra has clarified to the Municipal Corporation of Greater Mumbai and Mumbai Metropolitan Region Development Authority (MMRDA) regarding the jurisdiction of Mumbai Metropolitan Region Development Authority (MMRDA) and Municipal Corporation of Greater Mumbai (MCGM) and the works to be undertaken by these Authorities. The GoM clarification mentions that, MRDPA is not the Statutory Authority and hence acquisition of land and rehabilitation work cannot be undertaken by the said authority. Hereto annexed and marked as Exhibit-'2', is the copy of the letter dated 09.04.2014.
4. I say in the aforesaid letter had clarified that the Municipal Corporation of Greater Mumbai shall undertake implementation of the project, Rehabilitation of the Project Affected Persons (PAPs), Land acquisition etc as Planning Authority and Competent Authority for Mithi River works from "Vihar Lake to the C.S.T. Bridge on Santacruz-
Chembur Link Road and for Vakola Nala works from the Airport upto Vakola Bbridge on Santacruz- Chembur Link Road".
5. I say that the MMRDA shall undertake implementation of the project, Rehabilitation of the 10 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 11 wp-2396,2398.13,1470.12 Project Affected Persons (PAPs), Land acquisition etc as Planning Authority and Competent Authority for Mithi River works from "CST Bridge on Santacruz Chembur Link Road upto Mahim creek and for Vakola Nala woks from Vakola bridge on Santacruz- Chembur Link Road upto Bandra Kurla Complex".
6. I further state that, by said letter dated 9 th April 2014, the State Government has also clarified that the Mithi River Development and Protection Authority will co-
ordinate between MCGM and MMRDA and will comply with the directions given by the Empowered Committee of MRDPA.
7. I further state that, in addition to said letter dated 9th April, 2014 the State Government also has clarified vide Government Resolution No.MRD- 3314/CR33/UD-7, dated 29th July, 2015 that, all the expenditure related to the all works to be borne by MCGM and MMRDA in their respective stretches if the Mithi River Development and Protection Authority does not provide special funds for these works. Hereto annexed and marked as Exhibit-'3', is the copy of the Government Resolution dated 29 th July, 2015. Hence, the Municipal Corporation of Greater Mumbai (MCGM) and Mumbai Metropolitan Region Development Authority (MMRDA) are required to pay compensation to affected persons in respect of their respective stretches of Mithi River Development Project."
(emphasis added) 11 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 12 wp-2396,2398.13,1470.12
9. Shri Shivprasad Gopal Parulkar, the Deputy Chief Engineer (Storm Water Drain), Eastern Suburb of the BMC has filed an affidavit dated 13th October, 2015. He has made a reference to the Government Resolution dated 19th August, 2015 as well as to the affidavit dated 30 th July, 2015 of Shri S.K. Salimath. As regards the liability of the BMC for payment of compensation, in paragraphs 5 to 7, he has stated thus :-
"5. I say that as stated herein above the MCGM acted as agency of MRDPA for providing manpower and machinery. Entire work of acquisition, rehabilitation etc. was carried out by MRDPA/ empowered committee under MRDPA through the Dy. Collectors (E & R) and thus, the submissions made in affidavit by Mr. S.K. Salimat, Dy. Secretary stating therein that the MCGM should pay the compensation to the affected persons for the work undertaken to these Respondents. I say that Mr. S.K. Salimat has not disputed or denied the contents and statements made in the affidavit of Mr. Sunil N. Madane dated 2nd April, 2014 of these Respondents.
6. I say that by issuing letters the UD Department cannot legally shift the burden of payment of compensation upon the MCGM. I say that the plans were approved by empowered committee of the MRDPA. The survey etc. was carried out by respective Dy. Collectors (E&R). Demolitions were also carried out by the Dy. Collectors (E&R), and 12 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 13 wp-2396,2398.13,1470.12 that MCGM only provided manpower and machinery. Thus acquisition or otherwise of the 'Mithi River' and/or of the 'Vakola Nala' is done by the MRDPA alone.
7. I say that, Government Resolution dated 29 th July, 2015 even though is issued by UD Department is not under the MRTP Act, 1966 and therefore by the said GR, the financial liability of Crores of Rupees cannot be shifted upon the MCGM. The said GR in sub para of para 2 states that if money is not made available by the MRDPA then MCGM and MMRDA should bear the expenses within their respective areas. I say that it is the MRDPA who has to pay the compensation. I say that even otherwise GR dated 29th July, 2015 is not and cannot be treated as in exercise of power u/s 154 of the MRTP Act 1966. I say that as per the information of these Respondents, acquisition was not under MRTP Act, 1966. I say that as per our record acquisition was not under MMC Act, 1888. I say that section 154 or any other provision under the MRTP Act, 1966 will not empower the UD Department/ State Government to shift its financial burden upon the planning authorities like MCGM as tried to be done in the present case. I say that, by issuing clarification/letters the UD Department/State cannot shift burden upon these Respondents and direct the MCGM to pay compensation to the affected persons of widening/improving of 'Mithi River' or 'Vakola Nala'. I say that, thus MRDPA/ UD 13 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 14 wp-2396,2398.13,1470.12 Department of the State of Maharashtra is the authority who is responsible to make payment of compensation."
(emphasis added)
10. In Writ Petition No.2398 of 2013, the Petitioner is claiming to be the owner of the land particularly set out in paragraph 1 of the Petition. It is claimed that there were six sheds on the said land which were used for storing rubber metal material. It is claimed that the construction of the sheds is lawful. A reference is made in the said Petition to the notices issued by the BMC alleging that the said sheds have been illegally constructed. In paragraph 15, the specific case of the Petitioner is that out of the said land described in paragraph 1, the Respondents excavated and acquired approximately 700 meters of land and have demolished three sheds purportedly in implementation of the order of this Court in PIL Writ Petition No.2116 of 2005 for widening of the Mithi River. Various reliefs have been claimed in the said Writ Petition including the relief of directing the Respondents to pay compensation in respect of the area of 700 square meters. Common orders have been passed in Writ Petition No.2398 of 2013 along with Writ Petition No.2396 of 2013.
11. In Writ Petition No. 1470 of 2012, the Petitioners are claiming to be the owners of the lands described in paragraph 2(c) of 14 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 15 wp-2396,2398.13,1470.12 the Petition. It is claimed that the said lands were merged in Mithi river.
The prayer in the Petition is for grant of compensation in respect of the said lands.
12. The learned counsel for the Petitioners pointed out the Government Resolution dated 29th July, 2015 which records that the said Authority has no legal status and it is working as a Coordinating Agency for the development of the Mithi River and the Vakola Nalla.
They pointed out that the said Government Resolution dated 29 th July, 2015 records that the lands covered by the project of the said Authority have been divided in two parts. In case of one part concerning the Mithi River, the BMC shall be the Competent Authority for acquisition of the lands required for the project and for rehabilitation of the project affected persons. In case of the remaining area, the MMRDA will be the Competent Authority for acquisition of the land and for rehabilitation of the project affected persons. They pointed out that in fact by a letter dated 19th September, 2015, the Principal Secretary of the Urban Development Department of the State Government directed the Commissioner of the BMC to pay the amount of compensation payable to the Petitioners in these three Petitions as the lands subject matter of these three Petitions are falling within the jurisdiction of the BMC as per the clarification issued by the Government Resolution dated 29 th July, 15 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 16 wp-2396,2398.13,1470.12 2015 and the letter dated 9th April, 2014 issued by the State Government. Therefore, as per the stand taken by the State Government, the BMC be directed to make payment of compensation to the Petitioners.
13. The learned Additional Government Pleader relied upon the aforesaid letters dated 9 th April, 2014 and 19th September, 2015 and contended that the BMC will have to take appropriate steps in the light of what is stated in the said letters as well as in the light of the Government Resolution dated 29th July, 2015. The learned counsel appearing for the MMRDA relied upon the affidavit of Ms. Ashwini Atkare and urged that in these three cases, the MMRDA has no liability as the lands claimed by the Petitioners fall within the jurisdiction of the BMC as per the clarification issued by the State Government under the letter dated 9th April, 2014.
14. The learned Senior Counsel appearing for the BMC relied upon an affidavit of Shri Shivprasad Gopal Parulkar and urged that the liability of payment of compensation cannot be shifted by the Government on the BMC. He urged that the Government Resolution dated 29th July, 2015 has not been issued in exercise of the powers under Section 154 of the Maharashtra Regional and Town Planning Act, 16 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 17 wp-2396,2398.13,1470.12 1966 (for short "the MRTP Act"). He pointed out that the lands claimed by the Petitioners were not taken over by way of acquisition either under the MRTP Act or under the said Act of 1888. He urged that the liability to pay compensation and to rehabilitate the project affected persons cannot be shifted on the BMC. He, would, therefore, urge that the BMC is not liable to pay compensation.
15. We have given careful consideration to the submissions. We have perused the Government Resolution dated 19 th August, 2005 under which the said Authority was established for the development and protection of the Mithi River. The said Government Resolution records that there have been encroachments made on the riverbed of the Mithi River which originates from Vihar Lake which is having length of 13.745 Kilometers. The said Government Resolution recites that the length of 3.5 kilometers comes within the jurisdiction of MMRDA and remaining length of 10.2 kilometers falls within the jurisdiction of BMC. It is stated that in the light of the serious situation created by floods of 26th July, 2005, it was decided to set up the said Authority which will be an "independent Authority". The Authority is headed by the Hon'ble the Chief Minister as its Chairman and the Hon'ble the Deputy Chief Minister of the State as its Vice-Chairman. The Municipal Commissioner of the BMC and the Metropolitan 17 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 18 wp-2396,2398.13,1470.12 Commissioner of the MMRDA are also members of the said Authority. In clause (B) of the said Government Resolution, the scope of work of the said Authority has been defined. The work includes approval to the development plan of Mithi River area and grant of approval to various projects for the implementation of the said plan. It provides that it will be the function of the said Authority to rehabilitate the project affected persons of the projects. Another function of the said Authority is to coordinate with the Government/Semi-Government Institutions. Under Clause (C), a Special Committee was constituted for implementing the development plan approved by the said Authority. The said Committee is headed by the Chief Secretary of the State Government. The Commissioners of MMRDA and BMC are the members of the said Committee. The Government Resolution further provides that the funds required for the said Authority will be raised by the Central and the State Governments, BMC, MMRDA and Financial Institutions.
16. As indicated by the affidavit of Shri S.K. Salimath, the Deputy Secretary to the Urban Development Department which is dated 30th July, 2015 filed in Writ Petition No.1470 of 2012, the State Government realized that the said Authority is not a Statutory Authority and therefore, acquisition and rehabilitation work cannot be undertaken by the said Authority. That is how the letter dated 9 th April, 18 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 19 wp-2396,2398.13,1470.12 2014 was issued by the Urban Development Department of the State Government to the MMRDA and the BMC providing that the BMC and the MMRDA will be responsible in respect of the specific areas mentioned therein for the implementation of all the works in relation to the Mithi River including the work of acquisition as well as rehabilitation of project affected persons. The said letter provides that the said Authority will act as a coordinating Agency for coordinating with BMC and MMRDA. The Government Resolution/decision dated 29th July, 2015 reiterates what is stated in the letter dated 9 th April, 2014 and records that if for the work of acquisition and rehabilitation of the project affected persons, special funds are not made available by the said Authority, the entire cost of the works shall be borne and paid by the BMC and the MMRDA for the works carried out within their respective jurisdictions. In fact by the letter dated 19 th September, 2015 addressed by Dr. Nitin Kareer, the Principal Secretary of the Urban Development Department to the Commissioner of the BMC, a direction was issued that the BMC will be responsible for the payment of compensation and related expenses in relation to the lands subject matter of the present Petitions. We have already quoted the specific statements on oath made by Shri S.K. Salimath in his affidavit dated 30th July, 2015. We have also noted the stand taken by Shri S.G. Parulkar on behalf of the BMC by quoting the contents of his affidavit.
19 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 20 wp-2396,2398.13,1470.12 The stand taken by the BMC is that it is not liable to pay compensation and to rehabilitate the project affected persons of the works in respect of Mithi river carried out under the development plan prepared by the said Authority. The stand taken by Ms. Ashwini Atkare in her affidavit filed on behalf of the MMRDA is that it is the responsibility of the BMC to grant relief to the Petitioners.
17. The said Authority is the creation of the State Government under the Government Resolution of 19th August, 2005. The said Government Resolution makes it very clear that it is the said Authority which will approve the development plan for the Mithi River and will grant approval to various projects for the implementation of the said development plan. It specifically provides that it is the responsibility of the said Authority to rehabilitate the project affected persons. As stated earlier, the said Authority is headed by the Honb'le Chief Minister as its Chairman. Perhaps, nine years after establishment of the said Authority that the State Government suddenly realized that the said Authority has no legal status at all and, therefore, it is incapable of acquiring the lands for the implementation of the development plan of the Mithi River and it is also incapable of rehabilitating the project affected persons of the said project. Therefore, the development plan for the Mithi river approved /made by the said Authority has no legal status and is not a plan prepared under any statute including the MRTP Act. After realizing 20 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 21 wp-2396,2398.13,1470.12 this, the State Government has shifted the burden on the BMC and the MMRDA. The fact remains that the work of Mithi River was carried out under directions of the said Authority which is the creation of the State.
For carrying out such an important project, the State created the said Authority. But there was neglect on its part to give any legal status or authority to it. Therefore, if the allegations of the Petitioners are correct, there will be violation of their rights under the Article 300A of the Constitution of India. Therefore, if the Petitioners are entitled to compensation and/or rehabilitation, they cannot be told to approach the BMC. As stated earlier, the BMC has declined to take up the responsibility notwithstanding the letters dated 9 th April, 2014 and 19 th September, 2015 as well as the Government Resolution dated 29 th July, 2015. The authority of law under which the said letters and the Government Resolution dated 29th July, 2015 were issued is not disclosed by the State Government even after the BMC has declined to abide by it. Hence, the State Government must take the blame for creating an Authority without conferring any legal status or legal authority on the same.
18. Therefore, it is the obligation of the State Government to pay compensation to the affected persons and/or to rehabilitate them. It is ultimately for the Government to recover the amount of compensation and/or cost of rehabilitation from the appropriate 21 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 22 wp-2396,2398.13,1470.12 authority by exercising appropriate statutory powers. The citizens cannot be allowed to suffer due to mistake committed by the State Government of establishing the said Authority without giving any legal status to it.
19. Therefore, we propose to direct the Collector of the Mumbai Suburban District to give hearing to the Petitioners and to ascertain whether any portion of the properties held by the Petitioners have been affected by the work carried out by the said Authority or the work carried out under the directions of the said Authority or the work of the project approved by it. The Collector will have to determine the extent of lands, if any, of the Petitioners affected by the project and to determine the compensation payable, if any, to the Petitioners. If for any reason the State Government is unable to pay compensation, the Collector will have to decide in what manner the Petitioners can be compensated. To ensure that complete justice is done, we are not disposing of these Petitions so that appropriate orders can be passed by this Court after considering the orders of the Collector. Moreover, there are other prayers made in these Petitions.
20. Hence, we pass the following order :-
ORDER
(i) We direct the Petitioners or their authorized 22 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 23 wp-2396,2398.13,1470.12 representative to appear before the Collector of the Mumbai Suburban District on Monday i.e. 1st February, 2016 at 11.00 am;
(ii) The Petitioners shall produce the relevant documents in relation to their lands which are allegedly affected by the projects of the development of the Mithi River undertaken by the said Authority or under the directions of the said Authority. It will be open for the Petitioners to make a representation in writing containing all particulars of their claim along with the necessary documents;
(iii) The Collector of the Mumbai Suburban District shall issue notice to the said Authority, the BMC and the MMRDA;
(iv) After hearing all the concerned parties and after allowing them to produce the documents, the Collector shall pass appropriate order in accordance with law;
(v) The Collector shall determine whether any properties held by the Petitioners have been affected by the work of development of the Mithi River carried out by any agency including the BMC under the directions of the said Authority in accordance with the Government 23 of 24 ::: Uploaded on - 15/01/2016 ::: Downloaded on - 31/07/2016 01:07:28 ::: 24 wp-2396,2398.13,1470.12 Resolution dated 19th August, 2005. If the Collector finds that the Petitioners' properties have been affected, he shall determine the compensation payable to the Petitioners. In the event the State Government is not in a position to pay the compensation, he shall also determine the manner in which the Petitioners can be rehabilitated/compensated on account of the loss suffered by them;
(vi) No adjudication is made on the rights claimed by the Petitioners in respect of the lands subject matter of these Petitions;
(vi) Appropriate order shall be passed by the Collector on or before 15th April, 2016;
(vii) Place the Petitions under the caption of "Directions" on 20th April, 2016;
(viii) The ad-interim relief granted earlier, will continue to operate till then subject to modification that it will be open for the Respondents to follow due process of law for demolishing the structures of the Petitioners and for dispossessing the Petitioners.
(V.L. ACHLIYA, J) (A.S. OKA, J)
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