Bombay High Court
Noori Nagina Masjid, Nagpur Thr. Its ... vs State Of Maharashtra, Thr. Its ... on 19 September, 2018
Author: B.R. Gavai
Bench: B.R. Gavai, S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL APPLICATION NO.1809/2018
IN
WRIT PETITION NO.6177/2006
WITH
WRIT PETITION NO. 3446/2007
WITH
WRIT PETITION NO.3951/2018
WITH
WRIT PETITION NO.4480/2018
WITH
WRIT PETITION NO.4497/2018
WITH
WRIT PETITION NO.4507/2018
WITH
WRIT PETITION NO.4769/2018
WITH
WRIT PETITION NO. 6121/2018
WITH
WRIT PETITION NO. 6122/2018
WITH
WRIT PETITION NO. 6123/2018
WITH
WRIT PETITION NO. 6124/2018
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WITH
WRIT PETITION NO. 6125/2018
.......
Civil Application No. 1809/2018
in
Writ Petition No.6177/2006
Shri Manohar Bapurao Khorgade
and another .. PETITIONERS
.. VS ..
The State of Maharashtra and Ors. .. RESPONDENTS
Mr. Firdos T. Mirza, Advocate for Petitioners.
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 to 4.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent No.5.
Mr. S.K.Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.6.
...
Writ Petition No. 3446/2007
Shri Durga Mata Mandir Samitee,
Telankhedi, Nagpur through its
President/Secretary Shri Vasant
Kumar Matadin Betharia,
R/o Plot No.150, Civil Lines,
Amravati Road, Nagpur - 440 033 .. PETITIONER
.VS.
1. The Municipal Corporation
Nagpur through its Commissioner,
Civil Lines, Nagpur 440 001.
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2. The Assistant Commissioner,
Dharampeth Zone No.2, Nagpur
Municipal Corporation, Nagpur. .. RESPONDENTS
Mr. M.K. Kulkarni, Advocate for Petitioner.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik,
Advocate for Respondents.
...
Writ Petition No.3951/2018
Noori Nagina Masjid
Mouza Wanjri, Automotive Square,
Kamptee Road, Opposite Maruti
Show Room, Nagpur, through its
President Sheikh Wahid Sheikh Abbas,
Aged about 55 years,
Occupation: Business, R/o Noori Colony,
Koradi Road, Nagpur. .. PETITIONER
.VS.
1. State of Maharashtra,
through its Secretary,
Department of Urban Development
Mantralaya Mumbai (M.S.) 440032.
2. The Chairman,
Nagpur Improvement Trust,
Station Road, Nagpur.
3. The Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
4. The Maharashtra State Board of
Waqf through its Chief Executive
Officer, Panchakki, Aurangabad. .. RESPONDENTS
Mr. Mohd. Ateeque, Advocate for Petitioner.
Mr. Sunil Manohar, Senior Advocate with Mr. S.Y. Deopujari,
Government Pleader for Respondent No.1.
Mr. S.K. Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.2.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent No.3.
...
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Writ Petition No. 4480/2018
1. Siddha Ganesh Mandir,
through its Manager
Sunil s/o Balkrishna Aloni,
Age 63 years, Occu _
R/o Laxminagar, Nagpur.
2. Buty Layout Plot Holders and
Residents Association, A Public1
Trust registered under Maharashtra
Public Trust Act Registration No.
Mah.221/94 Nagpur through its
Secretary Ravindra s/o Madhukar
Chinchwadkar, Age-55 yrs.
Occu -Service,
R/o 20 Buty Layout Laxminagar,
Nagpur. .. PETITIOENRS
.VS.
1. State of Maharashtra
through Chief Secretary, Ministry of
Urban Development, Mantralaya,
Mumbai.
2. Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
3. Assistant Municipal Commissioner,
Laxminagar Zone No.-1, Nagpur
Municipal Corporation, Nagpur.
4. Commissioner of Police,
Nagpur Division, West High Court,
Nagpur. .. RESPONDENTS
Mr. Shantanu M. Pande, Advocate for Petitioners.
Mr. Sunil Manohar, Senior Advocate with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos.1 and 4.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.2 and 3.
...
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Writ Petition No.4497 of 2018.
Shree Mahalaxmi Mandir Jirnodwar
(Nirman) Samiti, Jaiprakash Nagar,
Khamla, Nagpur, through its
Jt. Secretary. .. PETITIONER
.VS.
1. State of Maharashtra,
through its Secretary,
Department of Urban Development,
Mantralaya, Mumbai.
2. State Level Committee,
Constituted in pursuance of Govt.
Resolution dated 5.5.2011,
through its Chairman and Chief
Secretary.
3. Nagpur District Level Committee,
Constituted in pursuance of Govt.
Resolution dated 5.5.2011,
through its Chairman and
Collector, Nagpur.
4. Nagpur Municipal Corporation Level
Committee, Constituted in
Pursuance of Govt. Resolution
dated 5.5.2011,
through its Chairman and
Municipal Commissioner.
5. Municipal Commissioner, Nagpur
Municipal Corporation, Nagpur.
6. Nagpur Improvement Trust,
through its Chairman, Nagpur. .. RESPONDENTS.
Mr. A.S. Kilor, Advocate for Petitioner
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 to 3.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.4 and 5.
Mr. S.K.Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.6.
...
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Writ Petition No.4507 of 2018.
Shree Hanuman Mandir Bhaktgan
Sewa Trust, Registered Public
Trust, under Bombay Public Trust
Act, 1950, Hanuman Mandir,
Chhaoni, Durga Mandir Square,
Katol Road, Nagpur, through its
Secretary. .. PETITIONER
.VS.
1. State of Maharashtra,
through its Secretary,
Department of Urban Development,
Mantralaya, Mumbai.
2. State Level Committee,
Constituted in pursuance of Govt.
Resolution dated 5.5.2011,
through its Chairman/Chief
Secretary.
3. Nagpur District Level Committee,
Constituted in pursuance of Govt.
Resolution dated 5.5.2011,
through its Chairman/
Collector, Nagpur.
4. Nagpur Municipal Corporation Level
Committee, Constituted in
Pursuance of Govt. Resolution
dated 5.5.2011,
through its Chairman/
Municipal Commissioner.
5. Municipal Commissioner, Nagpur
Municipal Corporation, Nagpur. .. RESPONDENTS
Mr. A.J. Mirza, Advocate for Petitioner.
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 to 3.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.4 and 5.
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...
Writ Petition No. 4769 of 2018
1. Shri Vyankatesh Mandir Samiti
through its President Shrikant
s/o Vasant Bhore, Age-60 yrs.
Occu- R/o Vyankatesh Nagar,
Nagpur.
2. Shri Vyankatesh Gruha Nirman
Sahakari Sanstha Ltd., a
Registered Society bearing
Regg. No. HSG/171 of 1964,
Vyankatesh Nagar, Khamla Road,
Nagpur 440 025, through its
President Shri Rajendra s/o
Madhukar Kawale, Age- 55 yrs.
Occu- Service, R/o 53
Vyankatesh Nagar, Khamla Road,
Nagpur. .. PETITIONERS
.VS.
1. State of Maharashtra through
Chief Secretary, Ministry of Urban
Development, Mantralaya,
Mumbai.
2. Commissioner,
Nagpur Municipal Corporation
Civil Lines, Nagpur.
3. Assistant Municipal Commissioner,
Laxminagar Zone No.-1, Nagpur
Municipal Corporation, Nagpur.
4. Commissioner of Police,
Nagpur Division, West High Court,
Nagpur. .. RESPONDENTS
Mr. Shantanu M. Pande, Advocate for Petitioners.
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 & 4.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.2 and 3.
...
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Writ Petition No.6121 of 2018
Trisharan Boudha Vihar
Situated at Balaji Nagar (Vistar)
Lay Out, Nagpur, Run by Bhartiya
Boudh Mahasabha Branch at
Balaji Nagar (Vistar) Lay-out,
Balaji Nagar, Nagpur, having
Registration No. 3227/PTN/F982)
through its Vice President,
Shri Nitin s/o Domaji Fulpatil,
Aged about 34 years,
Occu. Private, R/o Balaji Nagar
(Vistar) Lyout, Manawada Road,
Nagpur, Tah. & Dist. Nagpur. .. PETITIONER
.VS.
1. The State of Maharashtra,
through its Secretary,
Department of Home, Mantralaya,
Mumbai - 440 032.
2. The Collector, Nagpur District,
Nagpur.
3. The Municipal Commissioner,
Nagpur Municipal Corporation,
Nagpur.
4. The Chairman,
Nagpur Improvement Trust,
Nagpur.
5. Member Secretary,
NMC Local Committee, Nagpur
Municipal Corporation, Nagpur. .. RESPONDENTS
Mr. A.B. Moon, Advocate for Petitioner
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 & 2.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.3 and 5.
Mr. S.K.Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.4.
...
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Writ Petition No.6122 of 2018
Tathagat Dhamma Prachar Sangh
having registration No.250/81,
situated at Dhamma Bhumi,
Hiwri Nagar, Middle Ring Road,
Nagpur through its President
Shri Ashok Shankarrao Dhone,
Aged about 63 years,
Occupation: Business,
R/o Near Lakadganj Police Station,
New Bagadganj, Bhandara Road,
Nagpur, Dist. Nagpur. .. PETITIONER
.VS.
1. The State of Maharashtra,
through its Secretary,
Department of Home, Mantralaya,
Mumbai - 440 032.
2. The Collector, Nagpur District,
Nagpur.
3. The Municipal Commissioner,
Nagpur Municipal Corporation,
Nagpur.
4. The Chairman,
Nagpur Improvement Trust,
Nagpur.
5. Member Secretary,
NMC Local Committee, Nagpur
Municipal Corporation, Nagpur. .. RESPONDENTS
Mr. A.B. Moon, Advocate for Petitioner
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 & 2.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.3 and 5.
Mr. S.K.Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.4.
...
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Writ Petition No.6123 of 2018
Bhim Jyoti Boudh Vihar Vikas
Mandal, Nagpur, having
Registration No. 740/02, situated
at Bagadgon, Gangabai Ghat Chouk,
Nagpur, through its President
Shri Nitin Kanhaiyalal Zilpe,
Aged about 38 years,
Occu. Private Job, R/o Juna
Bagadganj, Gangabai Ghat
Chouk Nagpur, Nagpur,
District Nagpur. .. PETITIONER
.VS.
1. The State of Maharashtra,
through its Secretary,
Department of Home, Mantralaya,
Mumbai - 440 032.
2. The Collector, Nagpur District,
Nagpur.
3. The Municipal Commissioner,
Nagpur Municipal Corporation,
Nagpur.
4. The Chairman,
Nagpur Improvement Trust,
Nagpur.
5. Member Secretary,
NMC Local Committee, Nagpur
Municipal Corporation, Nagpur. .. RESPONDENTS
Mr. A.B. Moon, Advocate for Petitioner
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 & 2.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.3 and 5.
Mr. S.K.Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.4.
...
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Writ Petition No.6124 of 2018
Matoshri Ramai Budhvihar Committee,
Office at Matoshri Ramai Boudha
Vihar, Ward No.60, Lumbini Nagar,
(Mekosabagh), Nagpur, Tah. And
District Nagpur, through its
Secretary, Smt. Kumodini w/o
Yashwant Wware, aged about
50 years, Occu- Household,
Ward No.60, Lumbini Nagar
(Mekosabagh), Nagpur,
Tah. And District Nagpur. .. PETITIONER
.VS.
1. The State of Maharashtra,
through its Secretary,
Department of Home, Mantralaya,
Mumbai - 440 032.
2. The Collector, Nagpur District,
Nagpur.
3. The Municipal Commissioner,
Nagpur Municipal Corporation,
Nagpur.
4. The Chairman,
Nagpur Improvement Trust,
Nagpur.
5. Member Secretary,
NMC Local Committee, Nagpur
Municipal Corporation, Nagpur. .. RESPONDENTS
Mr. A.B. Moon, Advocate for Petitioner
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1 & 2.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.3 and 5.
Mr. S.K.Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.4.
...
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Writ Petition No.6125 of 2018
Sarnath Boudha Vihar Vikaas
Samittee, having registration
No.Mah.714/03 at Bhamti
Juni Vati Nagpur, through
its President, Shri Vijay s/o
Gulabrao Gaikwad,
Age About 55 years,
Occu. - Business,
R/o Bhamti Juni Wadti,
Near Sarnath Boudha Vihar,
Nagpur. .. PETITIONER
.VS.
1. The State of Maharashtra,
through its Secretary,
Department of Home, Mantralaya,
Mumbai - 440 032.
2. The Collector, Nagpur District,
Nagpur.
3. The Municipal Commissioner,
Nagpur Municipal Corporation,
Nagpur.
4. The Chairman,
Nagpur Improvement Trust,
Nagpur.
5. Member Secretary,
NMC Local Committee, Nagpur
Municipal Corporation, Nagpur.
6. Tahsildar, Nagpur City, Nagpur. .. RESPONDENTS
Mr. A.B. Moon, Advocate for Petitioner
Mr. Sunil Manohar Senior Counsel with Mr. S.Y. Deopujari,
Government Pleader for Respondent Nos. 1, 2 & 6.
Mr. C.S. Kaptan, Senior Advocate with Mr. S.M. Puranik, Advocate for
Respondent Nos.3 and 5.
Mr. S.K.Mishra, Senior Advocate with Mr. G.A.Kunte, Advocate for
Respondent No.4.
...
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CORAM : B.R. Gavai & S.B. Shukre, JJ.
DATED : September 19, 2018.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. Rule in Writ Petition Nos. 3446/2007,3951/2018, 4480/2018, 4497/2018, 4507/2018, 4769/2018, 6121/2018, 6122/2018, 6123/2018, 6124/2018 and 6125/2018. Rule made returnable forthwith. Respective counsel waive service for the respective respondents. These writ petitions along with Civil Application No.1809 of 2018 in Writ Petition No.6177 of 2006 are heard finally by consent of learned counsel appearing for the parties.
2. Writ Petition No.6177 of 2006 has been treated by this Court as a public interest litigation to monitor the issue of implementation of the directions issued by the Hon'ble Supreme Court. The other writ petitions which are being disposed of by the present order are filed by various individuals/institutions/societies contending therein, that the notices issued to them by the Corporation and the proposed demolition of the structures on the properties belonging either to the Government or on public utility land of the layouts or private lands are sought to be demolished in contravention of the Government Resolution dated 05.05.2011. Civil Application No.1809 of 2018 has been filed on behalf of the respondent - Nagpur Municipal Corporation seeking directions to ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 14 WP6177-06.odt itself to hear and decide 967 objections received by it within a stipulated period.
3. On 25.03.2008, the Hon'ble Supreme Court of India taking note of the newspaper item published in Times of India, Ahmedabad Edition, dated 02.05.2006, took suo motu cognizance of the illegal public structures erected on public places, roads, footpaths. The Hon'ble Supreme Court of India has been thereafter considering the issue with regard to removal of illegal religious structures which have come up by way of encroachments on public lands. Various orders have been passed by the Hon'ble Supreme Court from time to time. Certain directions were issued by the Hon'ble Supreme Court on 29.09.2009. The matter again came up before the Hon'ble Supreme Court on 07.12.2009 wherein the following directions were issued:-
"This Court on 29th September, 2009, after taking into consideration the letter dated 19 th September, 2009, sent by the Union Home Secretary to the learned Solicitor General of India, we passed the following order:-
"We have heard the learned counsel for the parties. Looking to the far-reaching implications and consequences of the orders of this Court, on the oral request of the learned Solicitor General of India, we deem it appropriate to implead all the States and the Union Territories as respondents to this petition. The Registry is directed to issue notices to all the States and the Union Territories within ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 15 WP6177-06.odt three days. The Union of India is directed to supply the entire set of papers to all the Standing Counsel appearing for the State Governments and the Union Territories.
The States and the Union Territories may file replies within four weeks and the Union of India is granted liberty to file rejoinder within two weeks thereafter.
As an interim measure, we direct that henceforth no unauthorized construction shall be carried out or permitted in the name of Temple, Church, Mosque or Gurudwara etc. on public streets, public parks or other public places etc. In respect of the unauthorized construction of religious nature which has already taken place, the State Governments and the Union Territories shall review the same on case to case basis and take appropriate steps as expeditiously as possible.
In order to ensure compliance of our directions, we direct all the District Collectors and Magistrates/ Deputy Commissioners in charge of the Districts to ensure that there is total compliance of the order passed by us. They are directed to submit a report within four weeks to the concerned Chief Secretaries or the Administrators of the Union Territories who in turn will send a report to this Court within eight weeks from today.
List this matter for further directions on 7th December, 2009." All the States and the Union Territories have been served. Despite service, most of the ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 16 WP6177-06.odt States and Union Territories have not filed affidavits as directed by this Court. In the interest of justice, we grant one more opportunity to the Chief Secretaries/Administrators of the respective States and Union Territories to file affidavits. Let the same be filed within six weeks, failing which the concerned Chief Secretaries and Administrators shall remain present in Court on the next date of hearing.
In case the Chief Secretaries and the Administrators have not issued circulars to all the Collectors and the District Magistrates of the Districts, it shall be issued within two weeks from today.
The Chief Secretaries, in consultation with the respective Governments are directed to frame the policy in respect of existing unauthorized construction of religious nature, which had already taken place. This Court directed the respondents to review this same on case to case basis. Let the policies be formulated by all the States and the Union Territories within four weeks from today.
We are reiterating that the Chief Secretaries, the concerned District Magistrates and the Collectors/Deputy Commissioners in- charge of the Districts must ensure total compliance of our order. Any breach in this respect shall be viewed seriously by this Court.
We direct the Chief
Secretaries/Administrators of all the States and
Union Territories to circulate copies of the order dated 29th September, 2009 and this order to all ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 17 WP6177-06.odt the District Magistrates and Collectors/Deputy Commissioners, other public bodies and local bodies.
We direct the learned Standing Counsel appearing for various States and the Union Territories to ensure that all copies of the affidavits are filed in this Court on or before 27 th January, 2010 with an advance copy to the learned Solicitor General of India, who is requested to get all these affidavits tabulated and submit a report to this Court on or before 2 nd February, 2010.
Place this petition for further directions on 4th February, 2010. Looking to the gravity of this matter, we direct that no order or direction inconsistent to our orders, shall be passed by any other Court in the country."
4. The matter thereafter again came up before the Hon'ble Supreme Court on 16.02.2010 wherein again certain directions were issued by the Hon'ble Supreme Court. A perusal of the order passed by the Hon'ble Supreme Court dated 16.02.2010 would reveal that the State Governments were directed to review the cases in respect of unauthorized constructions of religious nature which have already taken place on public streets, public parks or other public places. The Hon'ble Supreme Court being not satisfied with the affidavits filed on behalf of the State Government, directed all the States and the Union Territories to formulate comprehensive policy regarding the removal/ relocation/ regularization of the unauthorized ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 18 WP6177-06.odt construction within a period fixed therein. Lastly by the order dated 31.01.2018, the Hon'ble Supreme Court directed that to ensure the implementation of directions issued by the Hon'ble Supreme Court, the implementation of the order should be supervised by the concerned High Courts. Accordingly the matters were remitted to the respective High Courts for ensuring the implementation of the orders in effective manner.
5. After the orders were passed by the Hon'ble Supreme Court, the matter has come up before this Court from time to time. This Court passed the order in the present matter on 28.02.2018. Subsequently on 06.06.2018, this Court found that the period as specified in P.I.L. No. 104/2010 had already lapsed and that inspite of that the religious structures were not still removed. The Court further found that the respondents Nagpur Improvement Trust and the Nagpur Municipal Corporation were not in a position to make a definite statement in that regard. Again the matter was kept on 21.06.2018, on which date the Municipal Commissioner as well as the Chairman of the Nagpur Improvement Trust were present in the Court, in accordance with the directions issued by the Division Bench on the earlier date. On 05.07.2018, when the matter was listed, this Court further observed that from the affidavit of the Municipal Commissioner, it appears that about 80 objections were received in response to public notice but then those objections were not looked into till date. This Court further observed that, even if ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 19 WP6177-06.odt those 80 structures were to be ignored, the Corporation had not satisfied the Court as to why the action was not taken against the balance 1441 structures. The Court further observed that the matter was neglected or overlooked to the extent possible so as to avoid any unpleasantness. The Court warned the authorities that the laxity on their part cannot be countenanced.
6. On 02.08.2018, this Court considered the cases of some of the petitioners who had approached this Court stating that they were not given appropriate opportunity of being heard before an action was sought to be taken by the Corporation or N.I.T. This Court found that the petitioners had ignored the notices issued in 2014 and, therefore, in order to consider their objections despite there being delay, the petitioners and the objectors who had preferred the objections before the Corporation, should deposit an amount of Rs.50,000/- for each structure with the Registrar. It appears that the direction given by this Court was in pursuance of the statement made on behalf of the petitioners that they are willing to deposit a reasonable amount so as to assist the public cause. It further appears that the counsel appearing on behalf of the petitioners had also submitted that some of the trusts or temples were too small and that non-receipt of the notices in 2014 was a main issue that requires consideration. It appears that by another order dated 10.08.2018, this Court extended the period for depositing the amount while also increasing the amount of ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 20 WP6177-06.odt Rs.50,000/- to Rs.60,000/-. In the order dated 30.08.2018, this Court recorded the statements made on behalf of the respondents Corporation/ N.I.T. with regard to removal of the structures on public roads. The time was granted till 31.08.2018 for removal of the other structures.
7. That is how the matter has come up for consideration before us.
8. We have heard Mr. Firdos Mirza, learned counsel for the petitioners, Mr. Sunil Manohar, learned senior counsel for the State, Mr. C.S. Kaptan, learned senior counsel for the respondent- Municipal Corporation, Mr. S.K. Mishra, learned senior counsel for the respondent- N.I.T. as well as Mr. Anil Kilor, Mr. A.B. Moon, Mr. S.M. Pande, learned counsel appearing on behalf of some of the petitioners.
9. At the out set, Mr. Mirza fairly stated that the petitioners were not concerned with the temples which are situated on the private properties. He submitted that the main thrust of the petitioners is with regard to the structures of religious nature which are erected on public land, public roads/footpath. He submitted that even the open land of the layouts has to be construed to be a public place and all such constructions of religious structures which are erected on such open spaces in layouts are required to be ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 21 WP6177-06.odt demolished if they are constructed in contravention of the relevant bye-laws.
10. Mr. Manohar, learned senior counsel appearing on behalf of the State Government submitted that, in the present case it is clear that the list prepared by the respondent Municipal Corporation in 2014 was in contravention of the policy laid down by the State Government in Government Resolution dated 05.05.2011. He submitted that, the Corporation had admitted that, an error had been committed by it in finalizing the list in 2014 wherein even certain structures standing on the private lands were included and, therefore, it sought permission of the State Government to consider the objections which were received by it. He submitted that the State Government has also permitted the Corporation to reconsider the said objections, however, with the leave of this Court, since the matter is sub judice. The learned senior counsel submits that in order to give a fair treatment to all the stakeholders and in order to ensure that the principles of natural justice incorporated in the G.R. dated 05.05.2011 itself are followed, it is necessary that the Corporation should be permitted to have a relook at the issue.
11. Mr. Kilor, learned counsel appearing for the petitioner in Writ Petition No.4497 of 2018, submitted that even the list which is prepared by the Corporation, has been prepared by some subordinate officers of the Corporation and not by a Committee ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 22 WP6177-06.odt which is required to be constituted as per the G.R. dated 05.05.2011. Mr. Moon, learned counsel appearing for the petitioners in Writ Petition Nos. 6121/2018, 6122/2018, 6123/2018, 6124/2018 and 6125/2018 submitted that some of the structures which are sought to be demolished are standing in the slum area and they are entitled to protection in view of the provisions of The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. Mr. Pande, learned counsel appearing on behalf of the petitioners in Writ Petition Nos. 4480/2018 and 4769/2018 has submitted that the Division Bench of this Court in the case of Society for Fast Justice .vs. State of Maharashtra reported in 2018(2) Bom.C.R. 379 has itself observed that the structures of religious nature which are standing in a private property are not covered by the G.R. dated 05.05.2011 and, therefore, the action sought to be taken against the petitioners is not sustainable in law.
12. Though initially Mr. Kaptan, learned senior counsel attempted to argue that the list published in 2014 was published by a competent committee, subsequently he fairly conceded that the list was finalized by the subordinate officers of the Corporation and the categorization which is required to be done, was not done by the Committee which is required to be constituted as per the G.R. dated 05.05.2011. Mr. Kaptan also fairly stated that in order to ascertain as to whether, the structures which are sought to be ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 23 WP6177-06.odt demolished are covered in Category A, Category B or Category C, it is necessary that an opportunity of hearing is required to be given to all the stakeholders and as such application is filed by the Corporation, seeking permission of the Court to give hearing to the concerned.
13. We may appreciate that after the matter was substantially heard, Mr. Mirza, learned counsel for the petitioners also agreed that before taking the impugned action, the principles of natural justice are required to be followed and in respect of the structures which are sought to be demolished, an opportunity of being heard is required to be given, in consonance with the G.R. dated 05.05.2011. However, he submitted that the laxity on the part of the State Authorities as well as the Corporation and the N.I.T. Authorities was apparent and, therefore, it is necessary that the Government be directed to initiate action against the officers concerned. He further submitted that in the event this Court was inclined to permit the objections to be heard by the Committee, it was necessary that this Court should stipulate particular time frame so that further laxity on the part of the said Authorities is avoided.
14. For considering the issue before us, it will be relevant to refer to the G.R. dated 05.05.2011. A reference to this G.R. would be more relevant since it has been issued by the State Government in compliance with the directions issued by the Hon'ble Supreme ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 ::: 24 WP6177-06.odt Court dated 29.09.2009. The true translation of the said G.R. reads thus:-
"Determination of comprehensive and clear cut policy afresh regarding demolition/ regularization / shifting of the unauthorized places in view of the directions given by the Hon'ble Supreme Court in Petition for Leave to Civil Appeal No. 8519/2006 Government of Maharashtra Home Department, Government Resolution No. CTM-0909/C.R.558/(Part-II)/SB-
1B Mantralaya, Mumbai- 400 032, dated: 5th May, 2011 Read Government Resolution No. CTM-0909/C.R.558/ :- (Part-II)/SB-1B, Home Department, Mantralaya, Mumbai- 400 032, dated 4th October, 2010 and 14th March, 2011 Introduction :- The Hon'ble Supreme Court in view of the directions given on 29.9.2009 and onwards in Petition for Leave to Civil Appeal No. 8519/2006 regarding demolition/ shifting/ regularization of unauthorized religious places, ordered the State Government to determine the policy, take review of every unauthorized religious places place-wise and prepare Time-bound Action Plan for demolition, shifting or regularization of such unauthorized religious places.
In view of that, the State Government had previously issued order vide the Government Resolution under reference. In supersession of the said orders, the Government is issuing following detailed directions for ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 :::
25 WP6177-06.odt taking action in compliance of the directions given by the Hon'ble Supreme Court in the above mentioned case. Government Resolution :- The following State-level Committee and District-level/Municipal Corporation-level Committees are appointed for taking action at local level for demolition, shifting and regularization of unauthorized religious places on public/government lands.
i) State-level Committee :-
1) Chief Secretary Chairman
2) Additional Chief Secretary Member
(Home)
3) Additional Chief Secretary Member
(Revenue)
4) Principal Secretary/Secretary Member
(Urban Development)
5) Principal Secretary/Secretary Member
(Rural Development)
6) Principal Secretary Member
(Law and Judiciary)
7) Director General of Police Member
8) Principal Secretary (Home) Member
(Special Branch) Secretary
ii) District-level Committee :-
1) Collector Chairman
2) Superintendent of Police Member
3) Chief Executive Officer (Zilla Member
Parishad)
4) Commissioner of Municipal Member
Corporation in the district
5) Chief Officer of Municipal Member
Council in the district
6) Concerned officer of Member
Cantonment Board/M.I.D.C./
::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:38 :::
26 WP6177-06.odt
CIDCO/MHADA/S.T.
Corporation/Railway/other
Local or Special Planning
Authority, etc
7) Resident Deputy Collector Member
Secretary
iii) Municipal Corporation-level Committee :-
(For cities such as Mumbai, Pune, Thane, Nagpur, Nashik, Amravati, Aurangabad)
1) Commissioner, Chairman Municipal Corporation
2) Commissioner of Police Member
3) Collector Member
4) Concerned officer of M.I.D.C./ Member M.M.R.D.A./N.I.T./CIDCO/MHADA/ Cantonment Boards/other Local or Special Planning Authority/Railway, etc
5) Deputy Commissioner Member nominated by the Secretary Commissioner, Municipal Corporation
2. The District-level Committee and Municipal Corporation-
level Committee are required to take action by following the procedure as mentioned in Para No. 3 below regarding demolition, shifting or regularization of all unauthorized religious places.
3. (i) The list of all unauthorized religious places in the city/ district shall be updated in next three months.
(ii) The unauthorized religious places that came into existence after issuance of directions by the Hon'ble Supreme Court on 29.9.2009 shall be demolished without delay at the District-level Committee/Municipal Corporation ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 27 WP6177-06.odt Committee itself.
(iii) As regards unauthorized religious places , which were in existence prior to 29-09-2009 , Police report in respect of law and order , traffic, public acceptance, etc., remarks of concerned Planning Authority in view of Development Control Rules and Development Plan , etc., and consent of concerned land holder be obtained and on that basis , Draft Action Plan in respect of making demolition / regularization in the matter of all unauthorized religious places be prepared as below within six months .
(A) Unauthorized prayer-places ,which are old ones and which are having extensive public acceptance and about which Police report and remarks of Planning Authority are favourable for regularization and there is consent of concerned land holder , be classified into ''Class-A'' and they be included in the list of proposed unauthorized religious places for regularization .
(B) Unauthorized religious places ,whose regularization is not possible for the reason of law and order or which are proving obstructions to traffic or in view of Development Plan/ Development Control Rules or for any other specific reasons , be classified into '' B '' class and their inclusion be made in the proposed list of unauthorized religious places for demolition .
(iv) Classification list of unauthorized religious places , prepared as above and Draft Action Plan of unauthorized religious places , prepared accordingly , be published in the local news papers by the District level / Municipal Corporation level Committee . In the said notification , it should be clearly mentioned that pursuant ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 28 WP6177-06.odt to directions of the Hon'ble Supreme Court , religious places mentioned in the said Action Plan , as per their classification , are under consideration for regularization / demolition and if anybody is having any objection or demur , the same be filed by the concerned one with the District level / Municipal Corporation level Committee within a period of one month .
(v) If any person / institution files objections/ suggestions in respect of regularization of any unauthorized religious place in the Draft Action Plan notified by District level / Municipal Corporation level Committee and on receipt of such letter of objection , the District level / Municipal Corporation level Committee , as per the requirement or if the concerned person demands so , then hearing be given on a certain date .
As regards any unauthorized religious place , if any group of local people or institution puts forth demand that owing to public acceptance of religious place and local custom , such unauthorized religious place be regularized at the place where it is situated , then they be intimated for adducing evidence in respect of above points and hearing be given to concerned as per need.
If any trust or group proposes shifting of any unauthorized religious place and submits accomplished proposal, then detailed inspection about appropriateness of place proposed by such trust or group should be made. During course of such inspection, it should be confirmed that such shifting has consent of the land holder; the proposed place would not create obstacle to traffic; and that such shifting would not violate developmental ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 29 WP6177-06.odt plan/Development Control Rules and that such shifting of the concerned unauthorized religious place would not create question of law and order and such unauthorized religious place should be classified 'C' and included in the list of unauthorized religious places to be shifted.
(vi) Thereafter the district level/ municipal corporation level committee should deliberate on objections and suggestions received in respect of each unauthorized religious place, classified the same into 'A, B and C' and take below mentioned action about it.
a) Decision of regularization of each unauthorized religious place of 'A' category at its present place should be taken at district level/ municipal corporation level committee itself and a consolidated report about it should be forwarded to the state level committee.
b) In case of unauthorized religious place of 'B' category, it is necessary to take prior permission of state level committee to demolish religious places which are in existence since before 1st May 1960. Meaning thereby demolition proceeding of unauthorized religious places which came into existence after 1 st May 1960 should be done by the district /municipal corporation level committee at its level only and in case of demolition of unauthorized religious places of 'B' category which are in existence before 1st May 1960 prior permission of the state level committee should be obtained and action of demolition should be taken. Before taking action of demolition of any unauthorized religious place, 15 days' notice about demolition of that unauthorized religious place should be published by sticking it at the concerned place giving date of demolition and then only actual action of demolition ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 30 WP6177-06.odt should be taken.
c) In case of unauthorized religious place included in 'C' category, district level / municipal corporation level committee should scrutinise the proposal received from the trust/group proposing such shifting of religious place, endorse that proposed shifting would not create obstacle to traffic and pedestrian; that it would not violate developmental plan/ Development Control Rules and would not create any question of law and order and take decision about shifting of such unauthorized religious place at its level and forward consolidated report about it to the state level committee.
4. While taking time bound action as mentioned above, the state level committee and government shall have power to grant extension of time for justifiable reason in each case, to review any decision taken by the district level/municipal corporation level committee and to amend /change it.
This Government Resolution is made available on the web-site of state government. Its computer code is 20110506105544001.
By order and in the name of Governor of Maharashtra.
Sd/- -Illegible-
(S. G. Sonawane) Deputy Secretary, Home Department."
::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 31 WP6177-06.odt
15. It could thus be seen that vide the said G.R., three level committees have been constituted. The State Level Committee consists of eight members under the Chairmanship of the Chief Secretary. The District Level Committee consists of seven members under the Chairmanship of the District Collector. However, in the present case we are not concerned with the area falling under the District Level Committee and, therefore, it will be relevant to refer to the constitution of Municipal Corporation Level Committee, which consists of the Commissioner, Municipal Corporation, as its Chairman. The Police Commissioner, the District Collector, the representatives of M.I.D.C./ M.M.R.D.A./ N.I.T. / CIDCO / MHADA / Cantonment Boards/ other local or special planning authority/ Railway etc. are required to be the members of the said Committee. The Deputy Municipal Commissioner nominated by the Commissioner is required to be Member Secretary of the said Committee. Clause (2) thereof would reveal, that the Committee is required to follow the procedure given in Clause (3) either for regularization of the unauthorized religious structure or for demolition or for relocation thereof. Sub-clause (i) of Clause (3) provides that the list of the entire unauthorized religious structures should be updated within a period of three months. Sub-clause (ii) thereof provides that no unauthorized religious structure which is erected after 29.09.2009 shall be permitted and the same shall be demolished at the level of District Level Committee/Municipal Corporation Committee. Sub-clause (iii) thereof provides that, ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 32 WP6177-06.odt such of the structures which were in existence prior to 29.09.2009, taking into consideration the various factors like law and order, traffic, public sanction, the report of the Police Authorities, the Development Control Rules, Development Plan and after taking into consideration the remarks of the Planning Authority as well as the consent of the owner of the land, the Committee shall prepare a draft action plan with regard to demolition/ regularization of the unauthorized religious structures. The same is required to be done within a period of six months. The structures are required to be categorized in three categories. Category A should consist of unauthorized religious structures which are in existence since long and which have an extensive public sanction and with regard to which, the reports of the Police Authorities and the Planning Authorities are favourable and where there is a consent of the landlord. Category A would be such of the unauthorized religious structures which are found entitled for regularization.
Category B is required to be of such structures which on account of law and order, obstruction to the traffic or on account of Development Plan/ Development Control Rules or for any other reason cannot be regularized. Such structures are required to be put in Category B and included in the list of the structures which are required to be demolished.
16. Sub-clause (iv) of Clause (3) of the said G.R. would reveal that after the draft plan for regularization /demolition is prepared by ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 33 WP6177-06.odt the Committee, the Committee shall publish the list of such classified structures and plan for regularization/demolition of such structures in the local newspaper. It also requires the public to be put on notice that the said structures are found liable to be demolished or entitled to be regularized and if anyone has any objection with regard to the same, such objections should be sent to the District Level/Municipal Corporation Level Committee, within a period of one month.
17. Sub-clause (v) of Clause (3) of the said G.R. would further reveal, that if any person/institution raises objection with regard to the proposed plan of demolition/regularization of unauthorized structures, then the District Level/ Municipal Corporation Level Committee shall give an opportunity of hearing to such a person/institution, if the same is demanded. It further provides that with respect to any unauthorized religious structure, if the people residing in the local area make a demand on account of public sanction or on account of local traditions and customs, for regularizing the said unauthorized religious structure, then such persons/institutions should be called upon to give evidence in support of their claim and be also offered an opportunity of hearing. It further provides that, if any institution or group of people proposes for relocation of a particular unauthorized religious structure, then the Committee should examine the viability of the place to which such structure is to be relocated. While doing so, it is ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 34 WP6177-06.odt required to be ensured that the consent of the owner of the land is obtained and further there is no obstruction to the traffic. It is further required to be ensured that on account of such relocation, there shall be no violation of the development plan/ Development Control Rules. It is further required to be ensured that on account of such relocation, there should not be any threat to law and order situation. The list of such structures which are found to be entitled to be relocated, are required to be entered into the third list i.e. of category.
18. Sub-clause (vi) of Clause (3) would further reveal that insofar as Category A is concerned, the District Level/ Municipal Corporation Level Committee should decide the issue with regard to regularization at its level and send a report to the State Level Committee. Insofar as Category B is concerned, if the structure is prior to 01.05.1960, then prior to demolition of the same, the permission is required to be taken from the State Level Committee. However, insofar as the structures which are erected after 01.05.1960, the District Level/ Municipal Corporation Level Committees are required to take steps for demolition at their level. Insofar as the structures with regard to one erected prior to 01.05.1960 are concerned, the action has to be taken by the District Level Committee after approval of the State Level Committee. It further requires that prior to taking action for demolition of any unauthorized structure , it is necessary that 15 days' notice is given ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 35 WP6177-06.odt by publishing a notice on such an unauthorized religious structure and only after that the proceedings for demolition of such structure should be taken. Insofar as Category C is concerned, after considering the factors which are already noted above, the District Level/ Municipal Corporation Level Committee is required to take steps for relocation of such structure and give a combined report to the State Level Committee.
19. Clause (4) of the said G.R. provides that the State Level Committee would have a power to review the decision taken by the District Level/ Municipal Corporation Level Committee and also to extend the time limit as provided hereinabove.
20. It could thus be seen, that a detailed procedure is prescribed under the said G.R. for deciding as to whether a particular unauthorized religious structure is required to be regularized or demolished or relocated. While doing so, various factors are required to be taken into consideration by the said Committee. Not only this, but if certain structures are found to be liable to be demolished and if a proposal for relocation of such structure is to be considered, then the persons opposing demolition/relocation are also required to be given an opportunity of being heard and also to provide evidence in support of their claim. It will be pertinent to note that even the Hon'ble Apex Court has directed that the State Government should frame a policy ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 36 WP6177-06.odt wherein the case of each of the structures has to be scrutinized on an individual basis for determining as to whether it could be regularized or it requires demolition.
21. As already stated hereinabove, the Government Resolution of 2011 has been issued by the State Government in compliance with the directions issued by the Hon'ble Supreme Court. It has been notified in order to give effect to the directions issued by the Hon'ble Supreme Court with regard to the menace of unauthorized religious structures. As such though this G.R. itself may not be construed to be quasi-legislative piece of legislation but since it is issued by the State Government in compliance with the orders issued by the Hon'ble Supreme Court of India, the procedure prescribed by that will have to be construed to be a procedure prescribed by law before taking an action.
22. In this respect, we may gainfully refer to the observations of the Hon'ble Supreme Court in the case of Central Coalfields Limited .vs. SLL-SML (Joint Venture Consortium) reported in A.I.R. 2016 Supreme Court 3814:
"There is a wholesome principle that the Courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor -AIR 1936 PC 253 namely "Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 37 WP6177-06.odt all. Other methods of performance are necessarily forbidden." There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmed that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the said bid document but only within the parameters mentioned above."
It could thus be seen that the principles laid down in the case of Nazir Ahmad .vs. King Emperor (AIR 1936 P.C. 253) that when law requires a particular thing to be done in a particular manner, it shall be done in that manner alone or not at all, is more than well- settled. From the aforesaid judgment, it could be seen that the Apex Court has also applied the same principle even in contractual matters and held that when an employer requires a bank guarantee to be given in a particular format, it has to be given in that format alone and not in any other format. We find that the said G.R. prescribes the procedure and lays down a policy to give effect to the ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 38 WP6177-06.odt directions issued by the Hon'ble Supreme Court. It provides for categorization of the structures into three categories i.e. the one which can be regularized, the second one which are required to be demolished and the third one which can be relocated. The G.R. provides the procedure for categorization, regularization and demolition of thousands of structures in the State of Maharashtra, belonging to the people professing different religions like Hindusim, Islam, Christianity, Buddhism and Sikhism. It provides for the different factors which are required to be taken into consideration while finalizing the categorization. It also provides for the principles of natural justice, which are required to be followed while taking the decision by the Committee. We, therefore, see no reason as to why the aforesaid well settled principle laid down in the case of Nazir Ahmad and which has been consistently followed by the Hon'ble Supreme Court should also not be made applicable to the aforesaid G.R.
23. No doubt, that we find substance in the contention of Mr. Mirza that there has been laxity on the part of the State Authorities, Municipal Corporation and the N.I.T. in giving effect to the provisions as contained in the said G.R. However, a question that we ask ourselves, is as to whether, on account of the laxity on the part of the State Government, Municipal Corporation or the N.I.T., the structures which could have been otherwise entitled for protection or relocation, if the procedure as prescribed under the G.R. was ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 39 WP6177-06.odt followed, should be permitted to be demolished at the whims and fancies of the Corporation.
24. From the record, it is clear that the list which was published by the Municipal Corporation is not finalized by the Committee which is required to be constituted at the Corporation Level under the Chairmanship of the Commissioner. We have perused the proceedings of the Committee which has finalized the list , which is annexed to the Writ Petition No. 4497 of 2018. A perusal of the said proceedings would reveal that the list is finalized by a Committee under the Chairmanship of one Assistant Commissioner of the Municipal Corporation. It further appears that even the Officers of the various organizations who are required to be the Members of the Committee, are not part of the said Committee. We are, therefore, of the considered view that the constitution of the Committee itself is not legal. When the G.R. requires the Committee consisting of the Commissioner as its Chairman and other Officers as its Members should apply their mind before the categorization, we are of the considered view that the categorization so done by the Committee under the Chairmanship of the Assistant Commissioner and without there being representation of the Officers of other organizations, itself cannot be proceeded further. When the very foundation of the impugned action is not tenable, we are of the considered view that all further proceedings initiated at the behest of the Corporation would not be permissible ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 40 WP6177-06.odt in law.
25. It will also be pertinent to refer to the affidavit of Mr. Virendra Singh, the Municipal Commissioner of the respondent Municipal Corporation dated 24.07.2018. Paragraph Nos. 6 and 7 of the said affidavit reads thus :-
"6. It is respectfully submitted that as N.M.C. had started removing unauthorised/illegal religious structures every day Nagpur Municipal Corporation and other authorities are receiving many objections and delegations of people objecting the removal of illegal religious structures and urging that their objections be decided first before initiating demolition drive. It needs to be mentioned here that till 17/07/2018 Municipal Level Committee had received as many as 967 objections. N.M.C. has carried out preliminary scrutiny of all these objections and found that out of these 112 objections are having prima facie case and other objectors have not submitted proper documents along with their objections. if this Hon'ble Court grants permission then by giving opportunity of hearing all these objections would be decided within a stipulated period without hampering the drive of demolition of unauthorised/illegal religious structures. It is submitted that the list of 1521 unauthorised/illegal religious structures had been finalised in 2014 as per G.R. dated 05/05/2011.
7. It is submitted that the Municipal Corporation Level Committee set up as per the ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 41 WP6177-06.odt said G.R. cannot reopen and re-adjudicate the objections tendered now the same issue was placed before the State Level Committee on 13/07/2018 wherein the State Level Committee has directed Municipal Commissioner and Chairman N.I.T. to submit 10-15 cases, which the N.M.C. and N.I.T. have submitted before the State Level Committee on 17/07/2018 and hence it is earnestly requested that this Hon'ble Court may please permit the answering respondent to give hearing in genuine cases where it appears that objections tendered now are found to be prima facie just and proper. If this Hon'ble Court permits the answering respondent to hear the objections which the Municipal Level Committee is receiving and received subsequently to a date fixed by this Hon'ble Court then the aforesaid committee will hear and decide every week 40 such cases in two hearings. A Sub-Committee has been formed to expedite the process of hearing under the Chairmanship of Municipal Commissioner."
The perusal of the aforesaid would reveal that after receipt of the objections, upon the preliminary scrutiny, the Corporation itself has found that at least 112 objections have a prima facie case. The Corporation itself has admitted that on examining the case on random basis, it has been found that it is necessary to hear objections and give hearing to the objectors. As already discussed hereinabove, the preliminary list itself is not prepared by the competent Committee but by an unauthorized Committee. We are, ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 42 WP6177-06.odt therefore, of the considered view that the procedure which is followed by the Municipal Corporation and the N.I.T. is totally contrary to the one prescribed under the said G.R., on the own admission of the Corporation.
26. Insofar as the contention of Mr. Mirza with regard to open lands in the layouts be also considered as public land is concerned, it will be relevant to refer to provisions of Clause 13.3 of the Development Control Regulations, 2000 for Nagpur City which reads thus:-
"13.3. Open Spaces:
13.3.1.(a) For every land irrespective of in town planning scheme or otherwise admeasuring 0.2 Ha or more layouts or sub-division or amalgamation proposals shall be submitted for approval.
(b) In any layout or subdivision of land admeasuring 0.4 Ha or more, +[15%] of the entire holding area shall be reserved as recreational space which shall be as far possible be provided in one place.
Notwithstanding anything contained in this rule, the shape and location of such open space shall be such that it can be properly utilized as play ground.
+ Substituted for "10%" by Notification dated 31.3.2001.::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 :::
43 WP6177-06.odt Note: (a) No permission will be granted to delete/reduce the existing sanctioned open space of layout/subdivision or amalgamation, where layout/subdivision permission is granted prior to issue of these regulations.
+[However, for plots below 0.40 Ha., where 15% open spaces are physically shown on the approved layout, the FSI of said open space can be utilized on the upper floor provided completion/occupation certificate are not issued as yet/(the project is incomplete).] + Inserted by Notification dated 31.3.2001.
(b) The open spaces shall be exclusive of areas of accesses/internal roads/ designations or reservations development plan roads and areas for road widening and shall as far as possible be provided in one place.
Where, however, the area of the layout or subdivision is more than 5000 Sq. Mt. open spaces may be provided in more than one place, but atleast one of such places shall be not less than 50% at one place and further not less than 300 Sq. Mt. at one place. Such recreational spaces will not be necessary in the case of land used for educational institutions ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 44 WP6177-06.odt with attached independent play grounds.
13.3.1.1. No such recreational spaces shall admeasures less than 200 Sq. Mt. 13.3.1.2. Minimum dimensions- The minimum dimensions of such recreational space shall be not less than 7.5 m. and if the average width of such recreational space is less than 16.6 m. the length thereof shall not exceed 2 ½ times the average width.
13.3.1.3. The structure and uses to be permitted in the recreational open spaces shall be as under, (1) There shall be two-
storied structure with maximum
15% built up area, out of which
10% built up area shall bed
allowed on ground floor and
remaining 5% can be consumed on
1st floor.
(2) The structures used for
the purpose of pavilion or
gymnasia or club house +[or
Vipasana and Yoga Centre] and
other structures for the purpose of
sports and recreation activity may
be permitted.
+ Added by Notification dated
31.3.2001.
(3) No detached toilet block
shall be permitted.
(4) A swimming pool may
also be permitted in such a
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45 WP6177-06.odt
recreational open space and shall
be free of F.S.I.
(a) The ownership of such
structures and other appurtenant
users shall vest, by provision in a
deed of conveyance, in all the
owners on account of whose
cumulative holdings, the
recreational open space is required
to be kept as recreational open
space or ground viz. "R.G." in the
layout of subdivision of the land.
(b) The proposal for the
construction of such structure
should come as a proposal from
the owner/owners/society/societies
or federation of societies and shall
be meant for the beneficial use of
the owner/owners/members of
such society/societies/federation/of societies.
(c) Such structure shall not be used for any other purpose, except for recreational activity, for which a security deposit as decided by the Commissioner/ Chairman will have to be paid to the Corporation/N.I.T.
(d) The remaining area of the recreational open space for playground shall be kept open to sky and properly accessible to all members as a place of recreation, garden or a play ground.
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(e) The owner /owners /society/societies the federation of the societies shall submit to the Commissioners/ Chairman a registered undertaking agreeing to the conditions in (a) to (d) above."
27. It could thus be seen that in any layout or subdivision of land admeasuring 0.4 Ha. or more, 15% of the entire holding area is required to be reserved as recreational space. As far as possible the same is required to be provided in one place. The open space is required to be excluded in the areas of accesses/ internal roads/ designations or reservations development plan roads and areas for road widening. The perusal of clause 13.3.1.3 would itself reveal that on a plot reserved for recreational space, it is permissible to construct 15% built up area out of which 10% built up area is required to be on the ground floor and remaining 5% on the first floor. Sub-clause (2) thereof would reveal that the structures so erected on the open space can be used for the purpose of pavilion or gymnasium or club house or Vipasana and Yoga Centre. It could thus be seen that the list is not exhaustive but illustrative. It can be further seen that the ownership of such structure or other appurtenant users shall vest in all the owners on account of whose cumulative holdings, the recreational open space is required to be kept as recreational open space or ground viz. R.G. in the layout of ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 47 WP6177-06.odt subdivision of the land. The proposal for the construction of such structure is required to come from the owner /owners /society/societies or federation of societies.
28. As already discussed hereinabove, sub-clause (2) of Clause 13.3.1.3 also permits the structures to be used for Vipasana and Yoga Centre and other structures for the purpose of sports and recreational activity. As already discussed hereinabove the list is not exhaustive but illustrative. It could further be seen that the construction so erected, is required to be for the beneficial use of the owner/owners/members of such society/societies/federation/of societies. It could thus be prima facie seen that if the owner or the society or the federation of societies decide amongst themselves to make a construction within the permissible limits for any religious structure including Temple, Church, Mosque, Gurudwara, Stoopa Vihar etc. the provisions of the Development Control Regulations cannot be said to prevent such a structure. It is also sought to be urged on behalf of many of the petitioners that the construction made by the petitioners of religious structures could also be termed as a construction for a recreational purposes. It is submitted that the structures that are constructed are predominantly in accordance with the faith of the owners of the plots residing in particular areas. In the areas dominantly owned by the Hindu citizens the temples are constructed in the layouts, in the areas dominantly owned by the Muslim citizens mosques etc. are constructed, in the areas ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 48 WP6177-06.odt dominantly owned by the citizens professing Sikh religion, Gurudwaras are constructed, in the layouts dominantly owned by the citizens professing Bouddha religion, Stoopa or Bouddha Vihar are constructed on such recreational spaces. It is, therefore, submitted that the structures so erected are erected for the recreational purposes for the citizens residing in such of the areas. It is, therefore, submitted that such a user would be in consonance with the relevant Development Control Rules. However, we do not find it necessary to go into that aspect of the matter, in view of the order that we propose to pass hereinafter. Since we are proposing to permit the Committee to be constituted as per the G.R. dated 05.05.2011 to consider each of the cases independently on the basis of the material placed before it, the question as to whether the construction so erected by the societies or the federation of societies, is required to be regularized or not, can very well be gone into by the said Committee.
29. At this stage, we may also note the submissions made by Mr. Mishra, learned senior counsel appearing for the N.I.T. and Mr. Mirza, the learned counsel for the petitioners that insofar as the initial unauthorized layouts which have been regularized by the N.I.T. are concerned, the ownership of the R.G. vests in the N.I.T. With regard to said submissions, the question as to whether the construction of religious structures made on such lands needs to be regularized or not, can also be gone into by the said Committee, ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 49 WP6177-06.odt inasmuch as the Government Resolution itself provides for regularization of the unauthorized religious structures even on private land subject to the owner thereof giving his consent.
30. It is further to be noted that in some of the petitions the structures concerned are constructed in the areas which areas already notified under the The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. . It is also sought to be urged on behalf of some of the petitioners that such structures have statutory protection under the provisions of the said Act. However, we do not find it necessary for us to go into that aspect of the matter. The Municipal Corporation Level Committee can go into such issues and decide as to whether such structures are entitled to be regularized or liable to be demolished.
31. Insofar as the contention that some of the structures are without permission of the Planning Authority and in contravention of the Development Control Regulations is concerned, we find that the said issues cannot be mixed up with the issues which are being monitored under the said G.R. The G.R. which is for implementing the directions of the Hon'ble Supreme Court, only concerns with the regularization/demolition/relocation of the unauthorized religious structure on public places. The issue will have to be, therefore, looked from the limited perspective. Insofar as the question as to whether the construction is without permission of the Planning ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 50 WP6177-06.odt Authority or in contravention of the Development Control Regulations is concerned, there are ample provisions under the local laws which enable the Planning Authority to take suitable action against such structures, if they are found to be in contravention of any of the provisions of the law.
32. In that view of the matter, while disposing of the bunch of the Writ Petition Nos. 3446/2007,3951/2018, 4480/2018, 4497/2018, 4507/2018, 4769/2018, 6121/2018, 6122/2018, 6123/2018, 6124/2018,6125/2018 and while allowing Civil Application No.1809 of 2018 in Writ Petition No.6177 of 2006 of the respondent Municipal Corporation, we pass the following order:-
(i) The Municipal Corporation Level Committee under the Chairmanship of the Commissioner of the Municipal Corporation and consisting of the other Members as provided in sub-clause (iii) of Clause (1) of the G.R., shall categorize the unauthorized religious structures constructed prior to 29.09.2009 into Category A i.e. all the structures which can be regularized, Category B of the structures which are liable for demolition within a period of one month from today. We clarify that classification as directed shall be done only by the Committee which is required to be constituted as per the said G.R. No doubt that the Committee would be entitled to take assistance of the subordinate officers, but the decision with regard to the categorization will have to be taken by the Committee ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 51 WP6177-06.odt constituted under the said G.R.
(ii) After the categorization is completed within the aforesaid period, the Committee shall publish a list of such unauthorized religious structures which have been categorized in Category A and B along with the proposed plan for regularization/ demolition of such structures within a period of one week from the finalization thereof. The publication shall be made in at least one English, one Hindi, one Marathi and one Urdu newspaper having a wide circulation in the city of Nagpur. While publishing the list, the Committee shall also notify that, such of the persons/institutions who have any objection either to the categorization or proposed draft plan for regularization/demolition, would be entitled to raise their objections within a period of one month from the date of the publication of the said notice.
(iii) Upon receipt of such objections to the categorization/regularization/demolition , the objectors would be given an opportunity to submit the evidence in support of their claim and they should also be given an opportunity of being heard, wherever the Committee finds it necessary or such a demand is made by the objectors. The said exercise shall be completed within a period of three months from the last date of the receipt of the objections.
(iv) We further direct that while considering the objections and where it is found that the structures are liable to be demolished but their relocation is possible, the Committee shall also consider ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 52 WP6177-06.odt the said issue and prepare a list of Category C i.e. list of the structures which are entitled for relocation.
(v) After the exercise of giving hearing as contemplated hereinabove is completed, the Committee also prepare a final categorization of three lists. List A shall be of the structures which are entitled to be regularized. List B shall be of the structures which are found liable for demolition. List C shall be of the structures which are found to be entitled to be relocated.
(vi) Insofar as the structures in List A i.e. of the structures which are found entitled to be regularized, the steps will be taken by the Municipal Corporation Level Committee for the regularization of the said structures.
(vii) Insofar as the structures which are found liable to be demolished and which are constructed prior to 01.05.1960, the District Level Committee shall forward the list of such structures to the State Level Committee within the period of one month after final lists are prepared. The State Level Committee shall take the decision with regard to the aforementioned structures erected prior to 01.05.1960 within a period of one month from the date of the receipt of the list. After the decision is communicated to the Municipal Corporation Level Committee by the State Government with regard to aforesaid structures erected prior to 01.05.1960, the Municipal Corporation Level Committee shall give effect to and implement such a decision within a period of one month from the date of decision of the State Level Committee. ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 :::
53 WP6177-06.odt
(viii) Insofar as the structures which are constructed after 01.05.1960 and which are found to be included in Category B, the steps for demolition of such structures shall be taken within a period of one month from the date of final categorization. Needless to state that as provided in the G.R. dated 05.05.2011, the Municipal Corporation Level Committee shall affix a notice of proposed demolition prior to 15 days of taking the action for demolition.
(ix) Insofar as the list C i.e. the list of the structures which are found eligible for relocation is concerned, the period of three months shall be given for relocation to the persons/institutions who are interested in relocating such structures. Such structures which are found entitled to be relocated, the persons concerned should be directed to relocate the said structures to the place where its relocation is approved, within the period of three months from the date of final categorization and demolish the old structures within the aforesaid period.
(x) In case such of the structures which are found eligible for relocation in category C, are not demolished and relocated within the aforesaid period of three months, the Municipal Corporation Level Committee shall take steps for demolition of such structures within a period of one month after lapsing of the aforesaid period of three months.
(xi) We further clarify that insofar as the unauthorized religious structures or for that matter any unauthorized structure standing on the footpath, public streets/roads are concerned, they ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 54 WP6177-06.odt will not be covered by the aforesaid order. All such unauthorized structures standing on the public streets/roads and footpath will have to be demolished by the Municipal Corporation and N.I.T. The Municipal Corporation and the N.I.T. shall file an affidavit within a period of one week from today with regard to the steps taken for demolition of structures on public streets/roads and footpath.
(xii) We further clarify that the aforesaid order would also not be applicable to such of the structures which are erected after 29.09.2009 and all such structures will have to be demolished by the respondent- Municipal Corporation and the N.I.T. The affidavit which is required to be filed by the Municipal Corporation shall also indicate the steps taken by it with regard to demolition of such structures which are erected after 29.09.2009.
33. The Writ Petition Nos. 3446/2007,3951/2018, 4480/2018, 4497/2018, 4507/2018, 4769/2018, 6121/2018, 6122/2018, 6123/2018, 6124/2018 and 6125/2018 are disposed of and Rule made absolute in the aforesaid terms in the said writ petitions. There would be no order as to costs. Civil Application No. 1809 of 2017 in Writ Petition No.6177 of 2006 also stands allowed in the aforesaid terms.
34. Needless to state that main Writ Petition No. 6177 of 2006 would remain alive for monitoring the issue of unauthorized religious structures, as directed by the Hon'ble Supreme Court. The ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:39 ::: 55 WP6177-06.odt matter is kept in the next week for compliance with regard to unauthorized structures on public streets/roads, footpath etc. (S.B. Shukre, J. ) (B.R. Gavai, J.) ...
halwai/p.s.
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