Bombay High Court
The Board Of Trustees Of The Temples ... vs The Municipal Corporation Of Greater ... on 20 May, 2021
Bench: S.J. Kathawalla, Surendra P. Tavade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.393 OF 2021
The Board of Trustees of the Temples Charitable Institution
and Funds of Gaud Saraswat Brahman Community of
Mumbai known as Gaud Saraswat Brahman Temple
Trust and Anr. ... Petitioners
versus
Municipal Corporation of Greater Mumbai and Ors. ... Respondents
ALONG WITH
INTERIM APPLICATION (L) NO. 11682 OF 2021
IN
WRIT PETITION NO. 393 OF 2021
WITH
INTERIM APPLICATION (L) NO. 9267 OF 2021
IN
WRIT PETITION NO. 393 OF 2021
Mr.D.S.Rajapurkar for the Petitioners.
Ms.Oorja Dhond i/b. Ms. Aruna Savla for MCGM.
Mr.Anil Singh, ASG a/w. Mr. Aditya Thakkar, Mr.D.P.Singh, Mr.Niranjan S. i/b. Gul
Asrani for Respondent Nos. 4 and 7.
Mr.Ashish Kamat a/w. Mr. Nishit Dhruva, Mr.Prakash Shinde, Ms.Niyati Merchant
i/b. MDP and Partners for Respondent Nos. 5 and 6.
Ms.Geeta Shastri, Addl. G.P. a/w. Mr. Amit Shastri, AGP for the State.
Mr.Rohaan Cama i/b. D.P.Desai for the Applicant in IAL No. 9267 of 2021.
Mr.Pradeep Pujari, Ground Director of BARC, present.
CORAM : S.J. KATHAWALLA &
SURENDRA P. TAVADE, JJ.
(VACATION COURT THROUGH VIDEO CONFERENCING) DATE : 20TH MAY, 2021 P.C.:
1. The above Writ Petition is fled before this Court on 30 th January, 2021 by SSP 1/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc the Board of Trustees of the Temples Charitable Institutions and Funds of Gaud Saraswat Brahman Community of Mumbai, known as 'Gaud Saraswat Brahman Temple Trust' which is a Public Charitable Trust registered under the provisions of the Public Trusts Act, 1950, against the Municipal Corporation of Greater Mumbai ('MCGM') - Respondent No. 1; the Assistant Commissioner 'D' Ward - Respondent No. 2; Department of Archeology and Museum - Respondent No. 3; Geology Survey of India - Respondent No. 4; N.H.P. Realty LLP - Respondent No. 5; Helecite Residency Pvt. Ltd.- Respondent No. 6 and the Central Ground Water Board -
Respondent No. 7.
2. According to the Petitioners, the Petitioner - Trust is the owner of the Land / Property more particularly described in Exhibit A to the Petition. The said Land / Property is housed with numerous Temples and Dharamshala/s (religious guest houses) and a historical water tank ('Talav') known as 'Banganga'. As per historical references, origin of the Banganga Talav goes back to the 11 th Century (1127 A.D) and has been constructed during the Silhara Dynasty Kings of Thane. As per ancient references and Hindu beliefs, the origin of the Banganga Talav goes back to the period of Ramayana, when Lord Rama stopped at the spot in search of his wife, Sita.
3. According to the Petitioners the Banganga Talav is a rectangular water body surrounded by steps on all sides and is a natural spring and the water that enters the SSP 2/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc Banganga does so from a natural underground water source, as has been occurring from centuries. The water from the said Talav remains sweet and fresh throughout the year, even though it is only a few meters away from and surrounded by the sea.
4. According to the Petitioner in the month of September 2020, it was noticed by various local residents and some of the members of the community, that the water in the Talav (Tank) started getting muddy and contaminated. Upon noticing the abnormal contamination, the local residents approached the management of the Petitioner No. 1 - Trust, complaining about the said contamination. At the instance of the Petitioners, their representatives visited the precinct on 18 th September, 2020. They noticed that muddy water is continuously fowing and merging with the existing water in the Banganga Talav thereby accumulating huge amount of mud in the said Talav. It was also noticed that the Respondent Nos. 5 and 6 were digging, excavating and carrying on piling work of extreme depth on the property bearing Plot No. 186/187 of Malabar Cumbala Hill Division, situated at Dungarsi Road, Mumbai, which is in the nearby vicinity of approx. 100 meters from the Banganga Talav and precinct. The Petitioner therefore repeatedly complained to Respondent Nos. 1 to 4 but failed to get any satisfactory response. The Petitioner therefore fled the above Writ Petition before this Court challenging the construction activities on the Plot ('subject Plot') by Respondent Nos. 5 and 6, on the ground that the same poses a threat to the quality and water fow to the Banganga Talav.
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5. On 22nd February 2021, this Court directed the Director of Archeology and Museums ('Director') to depute a competent ofcer for the purpose of conducting survey and inspection of the Banganga Talav and the piling and construction activities undertaken by Respondent Nos. 5 and 6 on the subject Plot. This Report was to ascertain whether the piling and construction activities undertaken by Respondent Nos. 5 and 6 are in conformity with the Order dated 22 nd January 2021 and also to ascertain whether by reason of such activities, the water level and quality of water at the Banganga Talav is afected.
6. On 1st March 2021, this Court after perusing the Report of the Director prima facie observed that the allegations levelled in the Writ Petition are incorrect. On this basis and considering that it was Respondent Nos. 5 and 6's submission that only around 15 days' work remained to be completed, this Court granted liberty to Respondent Nos. 5 and 6 to resume piling and construction activities. Considering that the Banganga Talav is a heritage structure and to be preserved, it was directed to depute the same or other ofcer once again to inspect the Talav at the time that the piling and construction activities were in progress, so as to ascertain whether the same poses any risk or damage to the water of the Banganga Talav.
7. On 9th March 2021, the Directorate of Archeology and Museum made a Report observing that there was no contamination or fow of muddy water or turbidity noticed. Natural water fowing in Banganga Talav, was apparently clean. On the same SSP 4/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc day this Court passed an Order perusing the said two Reports and observed that the same did not reveal that as a result of Respondent Nos. 5 and 6's piling and construction activities, the fow of water to the Banganga Talav or its quality was afected.
8. On 10th March 2021 this Court constituted a Committee ('the Committee') to conduct a survey and carry out inspection of the Banganga Talav and submit its Report. Respondent Nos. 5 and 6 were however, restrained from carrying on piling and construction activities.
9. On 30th March 2021, the Committee had not yet made its Report and it was indicated that inspection would be done on 31 st March 2021. For the purposes of such inspection and survey Respondent Nos. 5 and 6 were directed to resume piling and construction work whilst the inspection and survey was underway.
10. On 8th April 2021, the Committee made its Report. The relevant observations in the Report are reproduced hereunder :
(i) In paragraph 2 of the Report, it is observed that the basalt boulders in the basal part of the drilling / construction site looks strong enough and without any cracks and crevices. Hence seepage of any kind did not seem probable.
(ii) In paragraph 4, another expert also opined that the basalt boulders were strong enough to sustain drilling. It was enquired by the Committee Members as to whether any chemicals or blasting was involved, or when the adjoining buildings were SSP 5/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc constructed, whether any water duct or aqueduct had been encountered. To both these queries, the answers were in the negative.
(iii) At internal page 7 of the Report, there has been an analysis of the water samples, and the conclusion of the analysis and the Report at internal page 8 showed that there was no signifcant diference in the parameters. Equally at internal pages 6 and 8, the Report suggests that a Tracer Test can be conducted by NEERI / NGRI / IIT / CPCB.
11. It is in this backdrop that on 8 th and 29th April 2021, and 4th May 2021, the matter was listed before this Court. Since the Committee's Report had observed that a Tracer Test may be conducted, to ascertain whether there was any underground fracture which connects the construction site with the Banganga Talav, this Court initially explored the possibility of conducting a Tracer Test through the NGRI. On 29th April 2021, this Court directed NGRI to place on record a plan of action, and directed Respondent Nos. 5 and 6 to deposit an amount of Rs. 5 lakhs to meet the expenditure of the work to be undertaken by NGRI. This was without prejudice to the rights and contentions of the parties.
12. On 4th May 2021, in view of NGRI's inability to undertake any Tracer Test, the Additional Solicitor General ('ASG') was requested to establish contact with the Indian Institute of Technology to ascertain whether it was in a position to carry out the Tracer Test. Eventually, even the IIT expressed inability to conduct a Tracer Test SSP 6/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc immediately.
13. On 13th May 2021, Respondent Nos. 5 and 6 moved the Vacation Court. In the Order dated 13th May 2021, this Court recorded the Learned ASG's statement that IIT did not have the facility to carry out a Tracer Test. Respondent Nos. 5 and 6 were granted liberty to fle an Additional Afdavit suggesting how to carry out the remaining piling work and also to suggest an agency which could conduct a Tracer Test. Equally the Petitioner was granted liberty to fle its Rejoinder to the further Afdavit of Respondent Nos. 5 and 6.
14. Relying on the further Afdavit fled by Respondent Nos. 5 and 6, Counsel for Respondent Nos. 5 and 6 has made submissions before us which are set out hereunder :
14.1. The plot of land on which the construction activities of the Respondent Nos. 5 and 6 are ongoing admeasures 603.52 square meters, and is situated at a distance of 138 meters from the Talav and in between the subject plot and the Banganga Talav, three buildings and two roads are situated. In fact, the constituents of the Petitioner reside in an 18-storey building situated in close proximity of the Banganga Talav.
14.2. On the subject Plot where the construction activities of Respondent Nos. 5 and 6 are to be carried out, there originally stood a pre-existing building with two basements, stilt and 7 foors and two smaller chawls. The foundation construction SSP 7/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc work of Respondent Nos. 5 and 6 envisages 40 piles, out of which 34 piles have been fully constructed. As regard the balance 6, 2 are partly dug. These balance piles are to be constructed in a symmetrical line with the other piles and are to be constructed on that side of the subject Plot which does not face Banganga Talav. It is therefore unlikely that the construction of the balance piles would prejudice the Banganga Talav water fow and quality. In this context, our attention has been invited to paragraphs 3.2, 3.4 page 8, r/w pages 74, 75, 77 and 79 of the Further Afdavit. 14.3. Respondent Nos. 5 and 6 have at all times cooperated with the inspection and surveys conducted. The Reports so far available do not in any manner establish that there is any obstruction to and/or contamination of water fow to the Banganga Talav, much less, due to the construction activities of Respondent Nos. 5 and 6.
Further, the Petitioner has not produced any independent material to bear out its charge.
14.4. The continued stoppage of work was putting Respondent Nos. 5 and 6 to severe prejudice and fnancial hardship. Respondent Nos. 5 and 6 have invested an amount of approximately Rs. 30 crores in the project. Further, there were 56 families residing on the subject Plot who are being afected by the continued stoppage of redevelopment work. The continued stoppage of the said work will also delay performance of obligations towards these families. Further, the oncoming monsoon season would cause severe damage to the subject Plot which can result in water SSP 8/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc logging and thereby not only delay construction activities but also pose a health hazard in the neighborhood.
14.5. Respondent Nos. 5 and 6 have, relying on paragraphs 5 and 6 of their further Afdavit suggested that they may be permitted to carry out construction work by placing adequate safeguards, i.e. Respondent Nos. 5 and 6 would place a camera at the water inlet of the Talav and appoint a supervisor to monitor the water in the Talav till such time as the piling and foundation work is complete. Additionally, water testing would be done at the Banganga Talav 3 times a day, readings would be maintained and be made available to all parties, and in the event any water contamination / obstruction is observed Respondent Nos. 5 and 6 would stop construction on the subject Plot and approach this Court for any further directions as may be required. 14.6. Alternatively, Respondent Nos. 5 and 6 have suggested that in place of the balance piles, they would put up a foundation base of a depth not exceeding the foundation of the original building situated on the subject Plot i.e. 8.4 meters. 14.7. Lastly, Respondent Nos. 5 and 6 state that despite every reasonable endeavor on their part, the Petitioner is being obstructive. Despite Reports of 1 st and 9th March and the Committee's Report of April 2021, not making out any case of obstruction to water fow and/or water contamination, the Petitioner continues to wrongfully rely on earlier documents to justify the continuation of the restraint.
15. As against this, the Petitioner has fled further Afdavit dated 7 th May 2021 SSP 9/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc and Afdavit in Rejoinder dated 18th May 2021. The Petitioner relying on 'Stop Work Notice' dated 25th September 2020 and, License dated 27 th January 2021 and 4th February 2021 and 'Stop Work Notice' dated 12 th February 2021, asserted that Respondent Nos. 5 and 6 are guilty of suppression and have not complied with conditions for carrying out construction. The Petitioner then states that Reports of S.K. Water Proofng and Advance Geotech have not been disclosed. In the Afdavit in Rejoinder dated 18th May 2021, the Petitioner has relied upon the Orders dated 22 nd February 2021 and 1st March 2021. It is then contended that the Respondent No. 3's Reports dated 25th February 2021 and 9th March 2021 are not in conformity with the directions of this Court. In paragraph 7, reliance is placed on Reports dated 10 th November 2020 and observations made by the Committee in its Report dated 8 th April 2021. Again, in paragraphs 8 and 9, the Petitioner has placed reliance on antecedent documents from September-October 2020 and have challenged the Report of S.K. Waterproofng. Lastly, in paragraph 15, Respondent Nos. 5 and 6 have stated that there has been suppression of certain documents and non - compliance of conditions of the construction licenses and/or permissions given.
16. After considering the record and the rival submissions based thereon, we fnd that :
(a) The Reports given by the Director of Archeology and Museum dated 1 st and 9th March 2021 do not fnd Respondent Nos. 5 and 6's construction activities SSP 10/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc posing any risk or hazard. Thereafter, this Court appointed the Committee who has submitted its Report dated 8th April 2021. On a perusal of the Report, the following position emerges: (i) the basalt boulders on the subject Plot look strong enough and without any cracks and/or crevices; (ii) the construction of the adjoining buildings, did not encounter any water and/or aqueduct; and (iii) based on hydrological investigation it was difcult to establish whether the subject Plot lies on the lineament, or it is the ground water forming the source of spring, which feeds water into the Banganga Tank.
Further, the analysis of the water samples did not show any signifcant diference for all three days. The water at the inlet was found to be clear. As regards any indication of pollution in the water tank the same could have been due to rituals and/or bathing. The Committee's Report therefore is not suggestive of any obstruction of water fow and/or water contamination at the Banganga Talav due to the construction activities carried on by Respondent Nos. 5 and 6. The Committee had also suggested that a Tracer Test could also be carried out.
(b) The Committee Report is the last, and is the most comprehensive, in terms of independent studies which have been carried out. Considering that the same is of an independent expert committee appointed by this Court, the observations thereof are liable to prevail over any antecedent reports or documents, that may even have been carried out by the parties. It is in this view of the matter that the reliance placed by the Petitioner on documents and/or reports made prior in point of time, SSP 11/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc does not seem to be well founded and justifed.
(c) Considering that construction of only 6 piles remain and that these piles are to be constructed in line with the 34 piles already constructed and they are not facing the Banganga Talav, we are of the view that it is unlikely that the construction of these piles would obstruct the water fow or quality of water fowing to the Banganga Talav. If the existent piles have not done so, it is unlikely that additional piles in the same line would do so.
(d) It is a matter of record that the construction and piling activities are presently stopped by Respondent Nos. 5 and 6. The onset of the monsoon would not only entail delay, but may also result in water logging and/or accumulation. This is more so since two of the piles are partly dug and are exposed to the elements. Any water logging would pose a general threat and hazard to the health and safety of the nearby residents. Equally, the interest of 56 families who have been relocated owing to the redevelopment and the continuing stoppage of work causing delay and prejudice both to Respondent Nos. 5 and 6 and these 56 families, cannot be overlooked.
17. It is in this light of the matter, that we are inclined to accept the suggestion made in paragraphs 5 and 6 of the further afdavit of Respondent Nos. 5 and 6 that they would carry out construction subject to :
(i) Respondent Nos. 5 and 6 strictly abiding by all the terms and conditions of the licenses and construction permissions given to them. This statement is accepted SSP 12/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 ::: wp_393_of_2021 25.05 A.doc as an undertaking to the Court.
(ii) Respondent Nos. 5 and 6 shall place a supervisor and camera at the water inlet of the Banganga Talav and maintain continuous supervision over the water fow and quality of water fowing to the Banganga Talav. Further, water readings will be taken three times a day and these readings will be maintained and made available also to the Petitioner.
(iii) In the event any obstruction to the water fow, or contamination of water is observed, Respondent Nos. 5 and 6, shall forthwith stop further construction work, and apply to this Court for further directions in this behalf.
(iv) In terms of the conditions imposed in paragraph 10, Respondent Nos. 5 and 6 are permitted to resume piling and construction activities. In the meantime, all parties shall make endeavors to agree to an acceptable, qualifed, independent and credible agency being appointed to conduct the Tracer Test, as suggested in the Committee's Report.
18. Stand over to 5th July, 2021.
( SURENDRA P. TAVADE, J. ) ( S.J.KATHAWALLA, J. ) SSP 13/13 ::: Uploaded on - 26/05/2021 ::: Downloaded on - 12/09/2021 13:52:12 :::