Bombay High Court
Navinchandra Shyamji Chhadva And 13 vs State Of Maharashtra And 4 Others on 1 March, 2018
Author: A.S. Oka
Bench: A.S.Oka, Riyaz I. Chagla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 454 OF 2016
1. Navinchandra Shyamji Chhadva
Son of shyamji Chhadva, Age 60 yrs.
Occ- business, Having address as
Plez e-r family showroom,
Shop No.H/8, 9, near post office,
Mohili village, pipeline, Sakinaka,
Mumbai- 400 072.
2. Himmat Kumar Suresh Ranka
Age: 37 years, Shop No.4, Natibai
Sadan, Mohili Village, Sakinaka,
Mumbai- 400 072.
3. Upendra Nayak,
Age-63 yrs., Chaugatta Estate,
Shop No.A/4, Mohilli Village,
Sakinaka, Mumbai- 400 072,
4. Mukhtar Ahmad Siddhique,
Age-51 years, Chaugatta Estate,
Mohilli Village, Sakinaka,
Mumbai- 400 072.
5. Ganpatilal Champalal Jain (Rawka)
Age-48 yrs, Gupta Sadan,
Shop No.6, Mohilli Village,
Sakinaka, Mumbai- 400 072.
6. Khubilal Mohanlal Jain,
Age: 56 yrs, Shop No.18,
Gupta Niwas, Mohilli Village,
Sakinaka, Mumbai- 400 072.
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7. Deepak D. Gala
Age: 46 yrs, Shop No.5,
Gurukripaniwas, Mohilli Village,
Sakinaka, Mumbai- 400 072.
8. Dagliya Laxmical Kalulal,
Age- 48 yrs, J/14, Chandrakala Devi
Chawl, Pipeline Mohilli Village,
Sakinaka, Mumbai- 400 072.
9. Ramkrishna S. Yadav,
Age- 40 yrs, Shop No.5.
Shri Niwas Chowk, Mohilli Village,
Sakinaka, Mumbai- 400 072.
10. Pandurang Ramchandra Nalawade,
Age- 70 yrs, A/4 Pansare Sadan Chawl,
Mohilli Village, Sakinaka,
Mumbai- 400 072.
11. Mobin Sayed Yasin,
S/o Late Sayed Yasin, Age- 45 yrs.,
A-6, Kailashpuram, Mohilli Village,
Sakinaka, Mumbai- 400 072.
12. Ladulal B. Bordia,
Age-57 yrs, Shop No.4,
Ramdani Yadav Chawl,
Mohilli Village, Sakinaka,
Mumbai- 400 072.
13. Ramesh Ramchandra Nagphase,
Age- 52 yrs., Shop No.1/1,
Mohilli Village, Sakinaka,
Mumbai- 400 072.
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14. Sadanand Nayak,
Chaugatta Estate, B/3,
Mohilli Village, Sakinaka,
Mumbai- 400 072. ... Petitioners.
V/s.
1. State of Maharashtra,
2. Chief Secretary,
State of Maharashtra,
Mantralaya, Mumbai- 400 032.
3. Mumbai Metropolitan Planning Committee,
Through its Chairman,
Office of the Chief Minister,
Government of Maharashtra,
Mantralaya, Mumbai- 400 032.
4. Municipal Corporation of Greater Mumbai,
Through its Municipal Commissioner,
MCMG Head Office, Mahapalika Marg,
Mumbai CST, Mumbai- 400 032.
5. Director General of Police,
State of Maharashtra,
Colaba, Mumbai. ... Respondents.
Mr.Rajendra C. Dhuru with Ms.Amruta Athavale for the petitioners.
Ms.Geeta Shastri, Addl.GP for the State.
Ms.Pallavi Thakar for the respondent- MMC.
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CORAM : A.S.OKA AND RIYAZ I. CHAGLA, JJ.
DATE : 1st March 2018.
ORAL JUDGMENT : (Per A.S. Oka, J.)
On the earlier date, the parties were put to notice that this petition will be taken up for final disposal at the admission stage. Accordingly, we have taken up the petition for final disposal. The cause of action for filing this petition under Article 226 of the Constitution of India is the notice dated 16th January 2012 issued to the petitioners, a copy of which is annexed as Exhibit."K". The said notice refers to a direction issued by this Court in PIL No.140/2006. It records that the structures of the petitioners which are subject matter of this petition are falling within the distance of ten meters from main water pipeline supplying water to the city of Mumbai. Therefore, the petitioners were called upon to produce documents showing that their structures were in existence on 1st January 1995 so that issue of eligibility of the petitioners for rehabilitation can be decided. On 20 th March 2012, the first petitioner replied to the said notice in which he stated that the pipeline in question is underground and is below the development plan road. It was contended that these structures were on private property owned by Mrs.Bansaribai Jugal Kishor. The petitioners have also annexed to this petition, a copy of public notice dated 8 th September 2015 at Exhibit-M calling upon the persons affected to submit documents for verification on the dates mentioned in the said public notice.
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2. The first substantive prayer in this petition is for issuing writ of mandamus which reads thus:
"A) That this Hon'ble Court be pleased to issue Writ of Mandamus and/or any other appropriate Writ, Order, exercising powers under Article 226 of the Constitution of India, 1950 thereby directing the Corporation, State Government to comply with the due process of law in implementing the "Plan" as per order dated 14/10/2009 passed by this Hon'ble Court (Coram: Bilal Nazki and A.R.Joshi, JJ) in PIL WP No.140/2006, which due process of law involves the mandatory compliance of provisions of Article 243 - ZE of the Constitution of India, 1950, r/w.
MR&TP Act, 1966, r/w Maharashtra Planning Committee Act, 1999 r/w The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
In substance, the contention is that for demolishing the structures which are required to be demolished as per the order dated 14 th October 2009 passed in PIL No.140/2006, the Municipal Corporation is under an obligation to follow the due process of law. The petition proceeds on the footing that issuing a notice under section 314 of the Mumbai Municipal Corporation Act, 1888 (for short "the said Act of 1888") will not amount to adopting due process of law.
3. The learned counsel appearing for the petitioners in support of the petition firstly submits that the structures of the petitioners are on a private property as disclosed in the additional affidavits filed by the petitioners. He pointed out that the petitioners are relying upon either the property register cards or the 7/12 extracts annexed to the additional affidavits which show that the structures are situated on the properties ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 6/14 454.16-wp held by private persons as the name of the private persons appear either in 7/12 extracts or in the property register cards. The second contention is that though the petitioners have not relied upon and are not having any development permission granted by the Planning Authority to construct the subject structures, the same are otherwise protected. It is further submitted that the pipeline in question does not pass above the ground level but it is below the ground level. The contention of the learned counsel appearing for the petitioners is that assuming that the pipeline passes above the ground level and though the pipeline supplies water to lakhs of citizens in the city, the structures which are abutting or touching the said pipeline need to be protected and cannot be demolished. The other contention is that due process of law has not been followed and without following due process of law, the structures of the petitioners cannot be disturbed. The learned counsel appearing for the Mumbai Municipal Corporation supported the action initiated by the Municipal Corporation and submitted that the Municipal Corporation is acting as per the directions issued in PIL No.140/2006. Even the learned Addl.GP appearing for the State supports the submissions made by the learned counsel appearing for the Municipal Corporation.
4. We have considered the submissions. We have perused the annexures to the petition as well as annexures to the additional affidavit of the petitioners. Firstly, it is not the case of the petitioners that their structures have been constructed after obtaining development permission from the Planning Authority as required by the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short "the said ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 7/14 454.16-wp Act of 1966") and the said Act of 1888. Though the contention of the petitioners is that the structures are otherwise protected, there is no specific pleading as to when the structures were constructed and under what law or policy the structures are protected.
5. However, from the annexures to the additional affidavit filed by the petitioners, we find that the structures may not be situated on the land vesting either in the State Government or the Municipal Corporation. No material is produced by the respondents to show that these structures are situated on a public property. On the basis of 7/12 extracts or the property register cards annexed to the additional affidavit, it is contended that the structures are situated on the lands which are privately owned lands. Though in writ jurisdiction, we cannot record any findings of fact on the issue of title, this is a case where there is no material placed on record by the respondents to show that the structures have been constructed on the land vesting in the State Government or any of the public authorities.
6. Now, we turn to the orders passed in PIL No.140/2006. The said PIL was filed inviting attention of the Court to the fact that there are large number of illegal constructions made abutting the main water pipeline supplying water to the city of Mumbai from various lakes in Thane district. There were affidavits filed on record by the Mumbai Municipal Corporation as well as by the State Government. By the order dated 29th July 2009, the Division Bench of this Court appointed a Committee headed by the Chief Secretary of the State of Maharashtra of ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 8/14 454.16-wp which the Director General of Police, the Municipal Commissioner of the Mumbai Municipal Corporation and the Finance Secretary of the Government of Maharashtra were the members. It will be necessary to make a reference to paragraphs-4 and 5 of the said order which read thus:
"4. Now, in order to protect the pipelines, remove the hutments and ensure that the water, which is used by the citizens of Mumbai, is safe, and to ensure that these pipelines do not become a target for persons to attack the citizens of Mumbai, we feel that it needs concerted effort and a well-thought-over policy by various agencies, including the Government of Maharashtra. This Court will be handicapped in the absence of requisite inputs and data to give directions to achieve the purpose of ensuring safety and health of people of Mumbai.
5. Therefore, to enable this Court to pass orders, which ensure safety on account of health and security of the City of Mumbai, we appoint a Committee headed by the Chief Secretary of the State. This Committee shall have the Director General of Police, Maharashtra, the Municipal Commissioner, Mumbai Municipal Corporation, and the Finance Secretary, Government of Maharashtra, as Members. They shall meet soon, consider all aspects of the matter, take assistance from any Department they like, which the Chief Secretary is otherwise authorized to do by virtue of his office, and submit a detailed plan of action to this Court within a period of 6 weeks. If the Committee, during its deliberations, feels it necessary to seek any clarifications from this Court, it shall be at liberty to approach the Court."
(underline supplied) The said Committee submitted a report to this Court. The Committee recommended removal of the structures within the distance of ten meters ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 9/14 454.16-wp on both sides of the main water pipelines. The Committee suggested that the occupants of hutments in existence on or before 1 st July 2000 may be considered eligible for rehabilitation. The Committee also proposed that after removal of the hutments, the reclaimed area on both sides of water pipeline may be protected by constructing compound walls/fencing so that no new encroachments take place in future. The said action plan was supported by the State Government by filing affidavit of Shri K.V.Kurundkar, Deputy Secretary, Urban Development Department, State of Maharashtra. While disposing of PIL No.140/2006, the Division Bench accepted the action plan submitted by the Committee headed by the Chief Secretary of the State of Maharashtra as well as the statements made in the affidavit of Shri Kurundkar filed on behalf of the State Government. The Division Bench directed that the action plan suggested by the Committee and the affidavit shall be implemented. Even in the said order, this Court directed the Director General of Police to take measures which are necessary to protect the pipelines and the water supplied to the Mumbai through the said pipelines and ensure that the said water is not polluted or used for any purpose which will endanger lives of citizens of Mumbai. The Division Bench reiterated "The directions are given in the context of the security of the country and also of Mumbai which has experienced some of the worst terrorists attacks in recent past."
7. We have already quoted the relevant part of the order dated 29th July 2009 passed by the Division Bench in PIL No.140/2006 and, in particular paragraph-4 thereof wherein the Division Bench observed that in order to protect the pipelines, it is necessary to remove the hutments ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 10/14 454.16-wp abutting the pipeline so that water which is used for by the citizens of Mumbai is safe. It was observed that it was in order to ensure that these pipelines do not become target for persons to attack the citizens of Mumbai. The extent of seriousness of the issue will be clear from paragraph-2 of the said order dated 29 th July 2009 which records that the main water pipeline carries water for 160 kilometers out of which 90 kilometers of the pipeline is over the ground and the pipeline having length of 60 kilometers is underground. In the light of the findings recorded in PIL No.140/2006, we are really surprised that the learned counsel for the petitioners submitted across the bar that the structures abutting the main water pipelines which supply water to the city of Mumbai should not be touched and that the same should be tolerated. In PIL No.140/2006, the Division Bench has noted the kind of threat which may be posed to lakhs of citizens of Mumbai unless the main water pipelines are protected by ensuring that there are no structures abutting the main pipelines and there is a corridor created so that in case of any mishap, the authorities can immediately approach the affected part of the pipeline. Thus, the issue is of protecting water supply to more than 1.80 crores of citizens of Mumbai. The interests of the entire population of the city must get precedence over few thousand citizens who have their structures within ten meters of main water pipelines. Hence, we reject the said submission of the petitioners.
8. Therefore, it follows that the the directions issued in PIL No.140/2006 will have to be implemented as the said directions have become final.
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9. However, the directions will have to be implemented after following due process of law inasmuch as before demolishing the structures of those who are affected, a recourse will have to be taken to appropriate provisions of the said Act of 1888 and/or the said Act of 1966 or any other statutory provision.
10. We are conscious of the fact that we are exercising writ jurisdiction under Article 226 of the Constitution of India. If, in a given case, this Court finds that the structures abutting the main pipeline are situated on a public property and/or have been constructed by committing illegality, this Court will not entertain a writ petition even though due process of law is not followed. In a given case, after considering the conduct of the persons who approach writ Court, this Court can always refuse to interfere under Article 226 of the Constitution of India provided the eligible persons are being properly rehabilitated in accordance with law.
11. However, in the facts of the case, as noted above, there is no material placed on record by the respondents to show that the structures of the petitioners are on the property vesting in the State Government or any other public authority. In this case, the Mumbai Municipal Corporation has issued a notice under section 314 of the said Act of 1888. In the facts of the case, we may note that it is not the case of the Municipal Corporation that the structures are erected in or upon any street, footway etc. Considering clause (a) of section 314, the said ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 12/14 454.16-wp provision can certainly be invoked if a structure is constructed upon any open channel, drain, well or tank contrary to the provisions of sub-section (1) of section 312 of the said Act of 1888. However, in the notice at Exhibit-K, it is not the case made out by the Municipal Corporation that the structure is constructed on an open channel, drain, well or tank. Therefore, in the facts of the case, it cannot be said that the act of issuing notice under section 314 of the said Act of 1888 would amount to following due process of law.
12. The other grievance is that in the light of the report which is ordered to be implemented by passing the order in PIL No.140/2006, there is no direction issued to demolish the structures on the land below which the main water pipeline passes. If for protecting the pipeline, the structures constructed above the pipeline are required to be demolished, then the Mumbai Municipal Corporation or the State Government or the Planning Authority, as the case may be, can always follow the due process of law for removing such structures. The reasons recorded by the Division Bench in PIL No.140/2006 for directing removal of structures abutting the main water pipeline may equally apply to structures above the main water pipeline.
13. Coming back to the facts of the case, as observed earlier, from the photographs annexed to the additional affidavit, the structures of the petitioners appear to be permanent and there is nothing placed on record by the respondents to show that the structures are erected on a public property. As in the facts of the case we have found that the act of issuing ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 13/14 454.16-wp notice under section 314 of the said Act 1888 does not amount to following due process of law and that the structures are not shown to be on a public property, the Municipal Corporation will have to be directed to follow due process of law before demolishing the structures of the petitioners.
14. It is not necessary for us, at this stage, to go into the disputed questions of fact whether or not the structures of the petitioners are within the distance of ten meters from Tansa Pipeline and whether or not the Tansa Pipeline is not over the ground but it is below the ground. All these issues can be decided by the Municipal Corporation when they follow due process of law.
15. Before we part with the judgment, we may add a rider that the State Government or the Municipal Corporation are duty bound to follow the directions of this court in PIL No.140/2006. As the Municipal Corporation has already taken a stand that the structures of the petitioners are required to be demolished for implementing the directions of this Court, the Municipal Corporation will have to act very expeditiously.
16. Therefore, we dispose of this petition by passing the following order:
(i) We hold that in the facts of the case and for the reasons set out above, the action of demolition proposed to be taken ::: Uploaded on - 15/03/2018 ::: Downloaded on - 15/03/2018 23:12:40 ::: SKN 14/14 454.16-wp on the basis of notice at Exhibit-K will not amount to following due process of law;
(ii) We, therefore, direct the respondents that the structures of the petitioners subject matter of this petition shall not be demolished without following due process of law as indicated in the earlier part of the judgment and order;
(iii) We make it clear that we have not made final adjudication on the question whether the structures subject matter of this petition are protected even though the same have been constructed without obtaining development permission. We have also not made final adjudication on the question whether the lands below the structures of the petitioners are privately owned. All these issues will have to be decided when due process of law is adopted by the respondents or any one of them;
(iv) Rule is, therefore, made absolute on the above terms.
(v) All concerned to act on an authenticated copy of this judgment and order.
(RIYAZ I. CHAGLA, J.) (A.S.OKA, J.)
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