Bombay High Court
Sambhuraje Yuvakranti Of Akhil ... vs Tahasildar - Alibaug And Ors on 17 September, 2018
Author: A.S.Oka
Bench: A.S.Oka, Riyaz I. Chagla
SKN 1/14 107.09-pil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 107 OF 2009
Sambhuraje Yuvakranti of Akhil Bhartiya
Maratha Seva Sangh. ... Petitioner.
V/s.
Tahasildar, Alibaug and others. ... Respondents.
Shri U.B.Nighot for the petitioner.
Mrs.R.A.Salunkhe, AGP for respondent Nos.1 to 5.
Mrs.Sharmila U. Deshmukh for respondent No.7.
Digitally signed
CORAM : A.S.OKA AND RIYAZ I. CHAGLA, JJ.
by Sanjay
Sanjay Kashinath
Nanoskar
Kashinath Date:
Nanoskar 2018.09.18
12:05:47
+0530 RESERVED ON : 16th August 2018.
PRONOUNCED ON : 17th September 2018.
ORDER :(Per A.S.Oka, J.) On 16th August 2018, we had heard this petition extensively for issuing further interim directions. This petition is essentially filed for bringing to the notice of the Court the failure on the part of the authorities under the Maharashtra Land Revenue Code, 1966 (for short "the said Code") to take action against the illegal constructions of bungalows/ farm houses in coastal villages of Varsoli, Sasavne, Navedhar, Navgaon, Kolgaon, Avas in Taluka- Alibaug, District- Raigad. Various photographs of such illegal constructions have been annexed to the petition. Reliance is placed on a detailed report dated 3 rd July 2008 submitted by the Sub-Divisional Officer, Alibaug. The said report is based on the inspection carried out by three squads of Government officers SKN 2/14 107.09-pil constituted by the Sub-Divisional Officer. Inspection was carried out of the constructions in the coastal villages and, especially in the areas covered by the Coastal Zone Regulations of 1991. Based on the said report, the District Collector submitted a report dated 4 th July 2008 to the Secretary of the Hon'ble Minister of Revenue Department. The said report refers to various illegal constructions carried out by the persons named therein. It also records that though Shri Meswani, Shri Nirav Modi, Shri Manoj Tirodkar, Smt. Karuna Rajan and Smt. Rushi Agarwal are carrying out constructions, they have not produced the permissions to carry on constructions. It is stated that Shri Ramesh Kundanmal has carried out illegal construction without permission. It is stated that Shri Nirav Modi has constructed a luxurious bungalow of ground + two floors on the land bearing Gat No.1033 at village- Kihim. In the reports of the Sub-Divisional Officer and the Collector, they have pointed out not only the violations of CRZ Regulations but also the fact that the illegal constructions of bungalows have been either commenced or completed without obtaining requisite permission. The prayer in the PIL is for declaring that the offending structures mentioned in the said report dated 4th July 2008 are illegal and in violation of CRZ Regulations. A writ of mandamus is sought against the respondents directing them to remove the illegal constructions. A prayer is also made to stop all illegal constructions in the areas covered by the CRZ Regulations.
2. On 30th July 2009, notice was issued and, thereafter, various orders have been passed from time to time. The petition is at admission stage. Considering the seriousness of the issues raised in this PIL, we issue rule. The advocates representing the respondents on 16 th August 2018 waive service.
SKN 3/14 107.09-pil
3. On 18th November 2009, Shri Subhash Sonavane, the then District Collector, Raigad filed an affidavit-in-reply. The said affidavit deals with total 17 constructions. 9 constructions are set out in Table-A of the said affidavit wherein it is mentioned that the same have been constructed without obtaining any permission. 5 constructions are mentioned in Table-B. It is stated that the said constructions have been carried out in excess of the permitted area. Table-C contains details of 3 constructions which are found to be legal. There is another affidavit dated 30th August 2010 filed by the same District Collector. In the said affidavit, 3 structures mentioned below Table-A therein have been mentioned below Table-C in the earlier affidavit by pointing out that the said structures are authorized. The structures which are mentioned below Table-B of the affidavit dated 18 th November 2009 are again shown below Table-B of the said affidavit dated 30 th August 2010. 9 illegal constructions which were constructed without permission mentioned in Table-A of the earlier affidavit have been listed in Table-C of the subsequent affidavit. It is stated that 4 out of 9 constructions have been regularized. One structure out of the 4 has been regularized by excluding CRZ area. Thus, going by the said affidavits, enquiry was made as regards 17 structures/ bungalows, out of which 9 were found to be completely unauthorized in the sense that they were constructed without obtaining any permission for construction. Out of these 9 structures, 4 structures set out in the affidavit dated 30 th August 2010 were regularized. In case of remaining 5 out of 9, reasons have been given for not taking action. Out of remaining 8 structures out of 17, 3 were found to be authorized. Two structures were demolished. In case of remaining structures, reasons have been given for not taking action.
SKN 4/14 107.09-pil
4. In the affidavit dated 23 rd February 2018 filed by Shri Vishwanath Narayan Vetkoli, Sub-Divisional Officer, Alibaug, it is stated that 4 illegal constructions were found in village- Versoli, out of which one was demolished and in case of other 3 constructions, notices have been issued under sections 52, 53 and 54 of the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act"). In case of village- Navedhar-Navgaon, one structure was found to be illegal to which a notice under sections 52, 53 and 54 of the MRTP Act was issued. In case of village- Kolgaon, 3 structures were found to be illegal for which similar notices under the MRTP Act were issued. In village- Awas (Indrape), 21 structures were found to be illegal, out of which 2 have been demolished and in respect of others, notices have been issued under sections 52, 53 and 54 of the MRTP Act. The said affidavit states that wherever notices under the MRTP Act have been issued, First Information Reports have been registered for the offence punishable under section 15 of the Environment Protection Act, 1986 (for short "the Environment Act") Thus, this affidavit deals with 21 illegal structures in addition to 17 structures dealt with in earlier two affidavits. In the subsequent affidavits filed on record, there is no reference to steps taken on the basis of the said notices.
5. In the order dated 24th February 2018, a Division Bench of this Court referred to a compilation filed by the learned counsel appearing for the petitioner which is marked as C-1 for identification. The said compilation is of the documents furnished under the Right to Information Act, 2005. It shows that there were 145 cases of constructions carried out in Alibaug Taluka in violation of the CRZ Regulations. Therefore, an SKN 5/14 107.09-pil affidavit was directed to be filed by the District Collector after examining the record. The order dated 9th April 2018 notes that, in fact, there were more than 160 such constructions and, therefore, time to file affidavit was extended. Thereafter, an affidavit dated 11 th June 2018 was filed by the District Collector Shri Vijay Suryawanshi. The said affidavit was dealt with in the order dated 31st July 2018. The relevant part of the said order reads thus:
"As per extension of time granted under the said order, there is an affidavit filed by Dr.Vijay N. Suryawanshi, Collector, district- Raigad. To the said affidavit, a chart dealing with total 159 structures has been appended. After minutely going through the said affidavit, we had called upon the Sub-Divisional Officer (SDO) to remain present in the Court. Only by way of illustration, we are referring to one case to show as to how casually such illegal structures are being dealt with. Item No.2 in Table- B appended to the affidavit of the Collector is in respect of illegal construction admeasuring 695 sq.meters carried out by one Shri Nirav Dipak Modi in the village- Kihim, taluka- Alibaug, district- Raigad. Our attention is invited to the order dated 4th February 2010 passed in Writ Petition No.321/2010. The said writ petition was filed by the said person. The order dated 4 th February 2010 records that the order of demolition dated 28th October 2009 passed by the SDO, Alibaug was withdrawn with a statement of the SDO that he will give hearing to the said Nirav Modi on show-cause-notice dated 26 th August 2009. This Court by the aforesaid order dated 4th February 2010 directed the SDO to pass a final order within a period of twelve weeks.
2. The period of twelve weeks expired in May 2010.
Now, we must refer to the action taken by the SDO. After the order dated 21st April 2018 passed by this Court, perhaps the SDO remembered of the order passed on 4 th December 2010. On 30 th May 2018, he addressed a letter to the Member Secretary of the Coastal Zone Management Authority seeking guidance from the SKN 6/14 107.09-pil Maharashtra Coastal Zone Management Authority (MCZMA) to find out whether the illegal constructions were carried out in CRZ area. The affidavit of Dr.Suryawanshi records that Shri Nirav Modi was permitted to construct a structure admeasuring 376 sq.meters and he constructed a structure admeasuring 1,071 sq.meters. Thus, the excess illegal construction to the extent of 695 sq.meters was made. Instead of passing the order within twelve weeks from 4 th December 2010, only after the order dated 21st April 2018 was passed by this Court, the SDO sought guidance from the MCZMA.
Firstly, there was no warrant to seek such clarification. What is done by the SDO is very shocking. On 2 nd June 2018, he passed an order recording that the MCZMA is an appropriate authority to decide whether there is violation of CRZ Regulations. In the order dated 2 nd June 2018, he recorded that the matter is being referred to MCZMA and, therefore, the matter stands disposed of. Not only that the SDO has acted contrary to the order dated 4 th February 2010, but he has acted in gross breach of the said order and that is how the end result is that a large illegal structure constructed on a beach to the extent of 695 sq.meters has been protected. We are pointing out this only by way of illustration. We find that in some other cases, the SDO has simply submitted a report to MCZMA. In fact, the affidavit of the Collector records that in case of several illegal constructions, the owners have informed that they are going to submit their proposal for regularization to MCZMA. That is the only ground given by the Collector to refer several cases to MCZMA. Thus, only because the owners of such illegal constructions informed the Collector that they are going to apply for regularization that the Collector and the SDO seem to have referred the matter to MCZMA without taking any action. In paragraph-13, the Collector records that there is no approval granted to the Coastal Zone Management Plan (CZMP) by the Ministry of Environment and Forest. There is a CZMP for Raigad district which is in force till today. Prima facie, the approach of the Collector is very strange and that also while dealing with such large number of illegal structures in the coastal area.
SKN 7/14 107.09-pil
3. At this stage, the learned Government Pleader states that he has personally talked to the Collector who has assured to take immediate remedial action.
However, the Collector owes an obligation to state as to how several cases of illegal constructions without taking any action have been simply referred to MCZMA. The SDO and the Collector also owe an obligation to explain about the manner in which the order dated 2 nd June 2018 has been passed in the case which we have taken up by way of illustration."
6. Subsequently, an affidavit of August 2018 (the date of affirmation is kept blank) is filed of the same District Collector in terms of the order dated 31st July 2018. The said affidavit discloses shocking state of affairs. Only by way of illustration, we are referring to the case of Shri Nirav Modi. We are referring to the documents annexed to the affidavits on record and, in particular the affidavit of Dr.Vijay Suryawanshi filed in August 2018. On 28th October 2009, an order was passed by the Sub- Divisional Officer, Alibaug in terms of the order dated 20 th August 2009 passed by this Court in the present PIL. By the said order, this Court recorded that it was expected of the State Government to take action in respect of unauthorized structures in accordance with law. The order dated 28th October 2009 passed by the Sub-Divisional Officer records that in respect of land bearing Gat No.1033 at village- Kihim held by Shri Nirav Modi, on 7th March 1998, a permission was granted to repair 3 farm houses which were in existence. It is recorded that the said permission was for repairs of the houses on the same plinths which were in existence. It was stated that a permission was granted to make construction on the total plinth area of 376 sq.meters. However, it was found that Shri Modi SKN 8/14 107.09-pil has carried out construction admeasuring 1,071 sq.meters. Thus excess construction of 695 sq.meters was carried out without permission. Therefore, by order dated 28 th October 2009, Shri Modi was directed to remove the construction admeasuring 695 sq.meters. Writ Petition No.321/2001 was filed by Shri Modi for challenging the said order. The order dated 4th February 2010 passed by this Court in the said writ petition records that the order dated 28 th October 2009 was withdrawn and a statement was recorded of the learned Government Pleader that hearing will be given to Shri Modi on the show-cause-notice dated 26 th August 2009 and, thereafter, an order will be passed within twelve weeks from 4th February 2010. To the said affidavit of the District Collector, the order of the Sub-Divisional Officer dated 2 nd June 2018 is annexed which records that in the said Writ Petition No.321/2010, this Court had directed the Sub-Divisional Officer to pass a fresh order. By the order dated 2nd June 2018, the Sub-Divisional Officer observed that the Coastal Zone Management Plan (CZMP) for the Raigad District was not approved and whether there was violation of CRZ Regulations is an issue which can be decided only by the Maharashtra Coastal Zone Management Authority (MCZMA). He, therefore, disposed of the matter by directing that a report be submitted to MCZMA and as per the directions which may be issued by MCZMA, further action will be taken. Very interestingly, to the same affidavit of the District Collector filed in August 2018, a copy of the order dated 3rd March 2011 passed by the District Collector has been annexed. Surprisingly, the said order records that a revision application was filed by Shri Modi against the aforesaid order dated 28 th October 2009 passed by the Sub-Divisional Officer. The order refers to Writ Petition No.321/2010. But does not refer to the order dated 4 th February 2010 passed therein. By order dated 3 rd March 2011, the said revision SKN 9/14 107.09-pil (described in the operative part of the order as an appeal) was purportedly allowed by the District Collector which implies that the order dated 28th October 2009 was set aside. Perusal of the order dated 4 th February 2010 passed by this Court in Writ Petition No.321/2010 shows that the said order dated 28th October 2009 was already withdrawn by the Sub-Divisional Officer and, therefore, this Court passed an order directing the Sub-Divisional Officer to give hearing to Shri Nirav Modi on show-cause-notice and pass a fresh order within a period of twelve weeks. As the order dated 28th October 2009 was withdrawn by the Sub- Divisional Officer as recorded in the order dated 4 th February 2010 passed in Writ Petition No.321/2010 filed by Shri Nirav Modi, it is surprising that by the order dated 3rd March 2011, the District Collector allowed the appeal/ revision application filed by Shri Nirav Modi against the same order dated 28th October 2009. Obviously, the order dated 3 rd March 2011 is non est as the order dated 28th October 2009 passed by the Sub- Divisional Officer was already withdrawn as noted in the order of this Court dated 4th February 2010. Thus, it is obvious that though as per the order dated 4th February 2010 passed by this Court in Writ Petition No.321/2010 filed by Shri Nirav Modi, the show-cause-notice dated 26 th August 2009 was to be decided by the Sub-Divisional Officer within a period of twelve weeks, the Sub-Divisional Officer purported to pass an order dated 2nd June 2018 referred above by which he closed the matter and referred the case to MCZMA. Perusal of the order dated 28 th October 2009 shows that the allegation was not only of violation of CRZ Regulations but the allegation was also that though repairs to the farmhouses of having total area of 376 sq.meters were permitted, an excess construction of 695 sq.meters was made. As stated earlier, shockingly, the District Collector entertained an appeal/revision against SKN 10/14 107.09-pil the order dated 28th October 2009 though the said order was already withdrawn as per the aforesaid order dated 4 th February 2010 passed by this Court. The Collector even proceeded to set aside the said order dated 28th October 2009. Thus, it appears that no adjudication was made on the question of Shri Nirav Modi carrying out illegal construction of 695 sq.meters. Violation of CRZ Regulations was one of the issues. However, the other issue was that the construction over and above the permitted constructed area of 376 sq.meters was illegal.
7. Now, coming back to the affidavit dated 11 th June 2018, it is recorded that in case of 145 structures, in most of the cases, reference has been made to MCZMA as it is claimed that the persons who made constructions were claiming that the same were dwelling units of persons belonging to local traditional coastal community. Out of 145 structures, 8 are reported to be removed. But in case of 90% of structures, a reference has been made to MCZMA.
8. We are only referring to a specific case by way of illustration. The issue is not only of violation of CRZ Regulations but also of illegal constructions made in the coastal areas or on beaches. There is a complete non-application of mind by all the authorities. The case of Shri Nirav Modi, to say the least, is shocking. The manner in which the District Collector bypassed the order of this Court and proceeded to set aside the order which was already withdrawn calls for a very serious enquiry. Perhaps, as a result of this order of the District Collector, the order of this Court dated 4th February 2010 directing the Sub-Divisional Officer to pass an order on the show-cause-notice was never implemented and the order which was to be implemented within twelve weeks from 4 th SKN 11/14 107.09-pil February 2010 was purportedly implemented as late as on 2 nd June 2018 by the Sub-Divisional Officer by closing the matter without going into the issue of illegal construction of 695 sq.meters.
9. In this case, we are concerned with the alleged illegal constructions carried out of large bungalows and farmhouses in the coastal areas of Taluka- Alibaug, District- Raigad. In many cases, it is alleged that First Information Reports for offences punishable under section 15 of the Environment Act have been lodged. Section 19 of the Environment Act provides that cognizance of the offence punishable under Section 15 can be taken only on a complaint filed to the Criminal Court in the manner provided therein. The officers of the State are completely ignorant of the provisions of section 19 of the Environment Act. If there are large number of illegal constructions in the coastal areas, the same will not only violate the laws relating to the environment but it will amount to destruction of our ecosystem. Such structures will pollute the environment. Moreover, allowing such illegal constructions to exist in the coastal areas will violate fundamental rights of the citizens under Article 21 of the Constitution of India.
10. The Divisional Commissioner has vast powers under the Maharashtra Land Revenue Code, 1966 (for short "the said Code"). Under the said Code, various powers have been conferred on the Revenue Officers to take action of demolition against the constructions carried out without obtaining the permission for non-agricultural use. Moreover, the District Collector who is a subordinate officer of the Divisional Commissioner is the Planning Authority under section 18 of the MRTP Act. We, therefore, propose to direct the Division Commissioner, Konkan SKN 12/14 107.09-pil Division to call for the records in relation to more than 160 illegal constructions which are subject matter of this Public Interest Litigation, to scrutinize the records and issue necessary directions. He will have to specifically go into the question as to how the order dated 3 rd March 2011 was passed by the District Collector in Appeal No.3/2010 by which the Collector purportedly set aside the order dated 28 th October 2009 passed by the Sub-Divisional Officer against Shri Nirav Modi which was, in fact, withdrawn as noted in the order dated 4th February 2010 passed in Writ Petition No.321/2010. The said order dated 4th February 2010 passed by this Court was never implemented by the Sub-Divisional Officer till 2 nd June 2018 by passing appropriate order on show-cause-notice in accordance with law. Even this conduct will have to be noted by him.
11. We repeat that we are referring to the case of Shri Nirav Modi only by way of illustration and, there may be several such cases where the revenue authorities have committed illegalities or have shown neglect.
12. As in the number of cases reference has been made to MCZMA, the said authority will have to place on record the decisions taken on the references made. As can be seen from the record, the MCZMA is impleaded as the party respondent No.7 and is represented by an advocate.
13. Accordingly, we pass the following interim order:
(i) We direct the State Government to forward a copy of this petition, copies of the affidavits filed in this petition and the copies of orders passed from time to time in this SKN 13/14 107.09-pil petition to the Divisional Commissioner, Konkan Division. As observed earlier, the Divisional Commissioner will call for records and will ascertain in what manner action has been initiated in respect of more than 160 illegal constructions in various coastal villages of Taluka- Alibaug, District- Raigad on the ground of violation of CRZ Regulations and/or constructions being carried out without there being any permission from the competent authority or in violation of the permissions granted;
(ii) He shall submit a report to the Principal Secretary of the
Revenue and Forest Department of the State
Government within a period of eight weeks from the
date this order is uploaded on the server on the basis of which the State Government will issue necessary directions;
(iii) We direct the seventh respondent to file an affidavit setting out the decisions taken by it on several references made to the said authority as is set out in the affidavit of the District Collector dated 11th June 2018. The affidavit shall deal with other aspects on merits as well.
Such affidavit shall be filed within a period of six weeks from today;
(iv) We make it clear that notwithstanding the pendency of this Public Interest Litigation and this order, the SKN 14/14 107.09-pil concerned authorities are free to take action in accordance with law against all illegal constructions including the constructions which are pointed out in various affidavits filed on record;
(v) The writ petition shall be listed on 21 st November 2018 under the caption of direction for reporting compliance.
(RIYAZ I. CHAGLA, J.) (A.S.OKA, J.)