Bombay High Court
The Catholic Association Of Bombay And ... vs The Municipal Corporation Of Greater ... on 30 January, 1991
Equivalent citations: AIR1992BOM100, 1991(2)BOMCR604, 1991(2)MHLJ999, AIR 1992 BOMBAY 100, (1991) MAH LJ 999, (1991) 2 MAHLR 972, (1991) 2 BOM CR 604
JUDGMENT
1. This petition under Article 226 of the Constitution takes exception to the demolition of a Cross held sacred by the Roman Catholic community residents at Bombay and in particular at Mahim.
2. Petitioners are an association and office-bearers of certain associations at Mahim. At the relevant time respondent No. 2 was the Administrator of Respondent No. 1 and Respondent No. 3 a Senior Ward Officer of the 1st respondent. In the vicinity of the Parsi Maidan at Mahim near the junction of M.M. Chotani Road and Phamber Lane -- so allege the petitioners -- stood the Cross figuring in this case. This Cross was installed in the year 1905 and had stood undisturbed up to the night of 16th March 1985. In fact in September 1977, the 1st respondent i.e. the Bombay Municipal Corporation, had given a no objection to the proposal to renovate the said Cross by providing mosaic tiles thereto. Suddenly without any previous intimation at about 11.30 p.m. on 16th March 1985 a posse of Municipal employees led by respondent No. 3 descented on the spot and without any further ado demolished the Cross. After coming to know about the demolition, the petitioners, lodged a report with the Mahim Police Station. Several residents of Mahim addressed written protests to the BMC but to no effect. A Legal notice also has had no effect and hence the petition. Petitioners contend that the demolition of the Cross, at least without a notice, was contrary to the Bombay Municipal Corporation Act, being Bombay Act III of 1888. Any provision of the said Act which permitted demolition of any structure without a notice was violative of Article 14 of the Constitution and in the matter of objects held sacred by any community, Article 25 of the Constitution of India. Petitioners sought a mandamus to the respondents to re-construct the Cross at the very site where it formerly stood.
3. The 3rd respondent has filed a return pleading that he was in-charge of demolition of illegal structures. It was not correct to say that the Cross in dispute was installed at the site in the year 1905. The letter permitting renovation in the year 1977 did not validate the said Cross. In any case no one including the Municipal Commissioner could allow the construction of a permanent structure on the Municipal road or foot-path in contravention of the Act. The Cross stood on the foot-path and in accordance with the provisions of section 314 could be demolished without giving of a notice. The nightly demolition of the Cross was not because the action was illegal but by way of administrative convenience and in order to avoid any unpleasantness. Petition was misconceived and deserved to be dismissed with costs. One A. G. D'Mello had filed a supplement to the petition wherein he speaks of having inspected records with the Superintendent of City Survey and Land Records, Office of the Collector at Bombay. The inspection of the record, 1st edition published in 1914, showed that a structure existed within the original plot meaning the Parsi Maidan as far back as in 1914. The public office concerned was unable to furnish a copy thereof, this inability being in line with their existing rules vis-a-vis the areas shown in red ink.
4. The first question requiring determination is as to when the Cross was installed. Petitioners, one of whom represents an as-sociation of folks of Mahim, avers that the Cross was installed in the year 1905. It is contended that this is a bare assertion and no documentary evidence of a credible nature has been produced in support of a self serving statement of the petitioners. Documentary evidence is not as meagre as is sought to be made out by the respondents. I have referred to the supplementary affidavit of A. G. D'Mello and in the absence of any refutation thereto it has to be held that the existence of the Cross was taken note of in the certified plan bearing C. T. S. No. 1981, 1st edition. Respondents could have also taken inspection of the plan mentioned in D'Mello's affidavit. They have either not taken such an inspection or having taken it, have not dared to refute the version set out in D'Mello's affidavit. This is despite the fact that the respondents were given two weeks time after the filing of D'Mello's affidavit. This point settled, the next question is as to the location of the Cross. Petitioners plead that the Cross is partly on the Parsi Maidan and partly on the street. If the 1st edition of the certified plan is seen, this contention of the petitioner has to be upheld. Counsel for the respondents counters this inference by referring to para 3 of the petition, which paragraph, according to her, incorporates an admission that the Cross is entirely upon the street. In a sense it can be said that para 3 indicates the location of the cross to be entirely upon the public street. But then greater credence has to be given to the map accompanying the 3rd edition of 1973. This is a public document and therefrom it is clear that the Cross which is on a pedestal is partly standing on the Parsi Maidan and that some part of it is jutting on the street. Though the part of the street covered by a portion of the Cross is a foot-path, the definition of street given in the Act includes a foot-path. This definition of section 3(w) of the Act defines a street as "includes any ..... foot-
path ----- whether a thorough-fare or not, over which the public have a right of passage..... and when there is a footway as well as carriageway in any street, the said term includes, both". Therefore, though the Cross may have once stood entirely upon the Parsi Maidan (see the reference in the record copy of the 1st edition vide A. G. D'Mello's affidavit and para 3 of the petition, which gives an impression of the Cross being entirely upon the street), the correct position is that the Cross is located partly on the Parsi Maidan and partly on the street. This settled, the 3rd question is about the validity of the action taken by the BMC.
5. Counsel for the petitioners contends that section 314 of the Act had to be read in conjunction with section 312. Section 314 of the Act permitted the Commissioner to remove without notice any fixture on a street which was contrary to the provisions of subsection (1) of Section 312. The BMC had not established that respondent No. 3 in demolishing the Cross was carrying out a direction given by the Commissioner. The reply given to this by Counsel representing the respondents is that respondent No. 3 has been vested with powers, duties and functions of the Commissioner vide section 68 of the Act. Accepting this statement as correct, I negative the first submission advanced in this regard by counsel for the petitioners. The next argument is that section 314 would be applicable only when it is established that the fixtures in a street formed an obstruction. Section 312 (1) to the extent relevant reads as follows:---
"No person shall, except with the permission of the Commissioner under Section 310 or 317, erect or set up any .....fixture in or upon any street.....so as to form an obstruction to, or an encroachment upon.....any portion of such street....."
It is argued that the jutting out of the Cross on the pedestal over the public street is so insignificant that it would not form an obstruction to the user of the street or rather, foot-way on which the Cross stands. A description of the street has been given in the form of a statement at the Bar and with an assurance that the same will be incorporated in an affidavit to be filed during the day's course. According to this statement, the street inclusive of the foot-way and carriage way is of a total width of about 40'. Fifteen feet therefrom is used as a foot-way. The projection of the Cross inclusive of its pedestal over the footway does not cover an area of more than I'. These details in regard to the street are denied by the BMC. But the denials cannot be said to reflect the correct position. Petitioners are prepared to back up their version with an affidavit to be filed during the day's course. Therefore, that has to be accepted as reflecting true position. If the extent of projection over the street is as little as one foot, it cannot be said that the existence of the Cross formed an obstruction to the user of the street by those who had a right to use the same. Section 314(a) is specific when it says that the removal can be caused without notice only if there is a contravention of sub-section (1) of Section 312. Having regard to the physical facts considered above, the existence of the Cross could not have formed an obstruction and therefore, section 314 (a) could not have been taken recourse to by the 3rd respondent.
6. It was next argued that the BMC was estopped from demolishing the Cross seeing that in 1977 it had given a no objection to the proposal to renovate the same. Learned Counsel for the respondents is right in submitting that Exh. A cannot be given rise to any estoppel. It permitted no more than a renovation of the existing Cross. This would not amount to an acceptance of the validity of the location of the Cross. But in the light of Exh. A, the least that could have been expect-ed from the BMC was that it give notice to the affected community. Counsel for the BMC says that streets are meant for the use of the public and anyone who appropriates any part of the street for private use can be thrown out without notice. In this connection she relies upon certain observations made by the Supreme Court in Writ Petition Nos. 4610 and 4612 of 1981. The observations relied upon are as follows:--
"Having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by section 314 of the Bombay Municipal Corporation Act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust..... In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements..... But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser."
Now in the matter of alleged encroachment on the public streets, the Corporation has to moderate its action within the four corners of the BMC Act. Where it wants to remove the alleged encroachment without notice it has to act within the limits permitted by Section 314. Section 314(a) permits action without notice only if there be a contravention of section 312 (1) of the Act. Section 312(1) is not relevant unless it be shown that the fixture objected to forms an obstruction or an encroachment upon any portion of such street. In the instant case, regard being had to the size of the Cross, it cannot be looked upon as an obstruction to the use of the street. This apart, the no-objection accorded to the proposal to renovate the Cross in the year 1977 constituted an awareness on the part of the Corporation that the Cross had existed since quite sometime and it could not have been unaware of the fact that the Cross was held to be an object of, veneration by a section of the public. This I deduce from the use of the pre-fix "sacred" appearing in Exh. A. That being the position, the intention to demolish required previous notice to the affected persons or a general notice to the public in the vicinity of the Cross. The reasonableness of any procedure depends upon the circumstances of the case. Even if section 314 of the Act was attracted, the circumstances, specially the antiquity of the Cross and the 1977 no objection, required the previous notice to the affected citizens. In the judgment relied upon by the Counsel for the respondents appears the passage quoted with approval from Francis Coralie Mullin v. the Administrator, Union Territory of Delhi, :--
"....it is for the Court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is responsible, fair and just or it is otherwise."
Now this may not be a case where there is deprivation of life or personal liberty, but an equally valuable right viz. to practice religion, was in issue. A large section of the public venerated the Cross and the extent of this veneration could not have been unknown to the respondents. If they wanted to demolish the same, they should have given a notice to the affected members of the public, at least, by a general proclamation. Alternatively, they should have carried out the demolition in a broad daylight so that those who were affected could have brought to the notice of the intending demolition squad, the reasons for refraining from the act of demolition. In these circumstances, the absence of a notice prior to the demolition has also to be ruled illegal and unconstitutional. The result of the foregoing discussion is a direction to the BMC to reconstruct the Cross at the very site at which it formerly stood and with use of such material as be of the same quality as that which went into the making of the demolished Cross. This be done within 8 weeks from today. Rule in these terms made absolute with parties being left to bear their own costs.
7. Order accordingly.