Bombay High Court
Nariman Point Churchgate ... vs State Of Maharashtra And 9 Ors on 2 March, 2016
Bench: A.S. Oka
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pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.101 OF 2013
WITH
NOTICE OF MOTION NO.189 OF 2014
1. Nariman Point Churchgate Citizens Welfare Trust
having its office at Commonwealth Building,
Ground Floor, 181 Madame Cama Road
Mumbai 400 020
2. Mrs. Swarn Kohli of Mumbai Indian, inhabitant
residing at Commonwealth Building,
181 Madame Cama Road, Mumbai.
3. Mr. S Rajgopal of Mumbai India, inhabitant,
residing at Buena Vista Building,
Gen Jagannath Bhosle Road, Mumbai.
4. Mr. B N Makhija of Mumbai Indian,
inhabitant, residing at Shalaka Building
Maharshi Karve Road, Mumbai.
5. Mr. Hormazdiyaar Vakil, residing at 122
Somerset House 61/G, B Desai Road
Mumbai 400 026.
6. Mr. Atul Kumar of Mumbai India, inhabitant
residing at Bharatiya Bhavan 72 Marine Drive,
Mumbai - 400 020
7. Oval Cooperage Residents Association having
its address at C/o. 3C, Empress Court,
142, M Karve Marg, Mumbai - 400 020
8. Mr. Ashad Mehta, of Mumbai Indian,
inhabitant, residing at Empress Court,
142, M. Karve Marg, Churchgate,
Mumbai - 400 020.
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9. Federation of Churchgate Residents,
a company duly incorporated under
section 25 of the Companies Act, 1956,
and having its registered office at 619-620,
Tulsiani Chambers, Nariman Point,
Mumbai 400 021.
10. Mr. Anil Bhatia, of Mumbai India, inhabitant,
residing at 4, Vishnu Mahal, 'D' Road,
Churchgate, Mumbai - 400 020. ... Petitioners
Versus
1. The State of Maharashtra
through the Public Works Department
2.
The Municipal Commissioner,
Mumbai Municipal Corporation,
having its office at Mahapalika Marg,
Mumbai
3. The Greater Mumbai Municipal Corporation,
a body constituted under the Bombay
Municipal Corporation Act, 1888
having its office at Mahapalika Marg,
Mumbai.
4. Maharashtra Tourism Development Corporation,
having its office at C.D.O. Hutments,
Opp. L.I.C. (Yogakshema) Building,
Madame Cama Road, Mumbai 400 020.
5. The Employment Exchange, having its office
at Konkan Bhavan, 3rd Floor, CBD Belapur,
Navi Mumbai - 400 614
6. Bharatiya Janata Party, having its office at
11 Ashoka Road, New Delhi 110 001.
7. Janata Dal having its office at No.5,
Safdarjung Lane, New Delhi - 110 003.
8. Zunka Bhakar Kendra located at Arcadia Building,
NCPA Marg, Yogakshema (Nariman Point),
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Mumbai, Maharashtra 400 021.
9. Mahila Arthik Vikas Mahamandal, (Under the
Government of Maharashtra ) having its office at
Griha Nirman Bhavan (MHADA),
Mezzanine floor, Kalanagar, Bandra (E),
Mumbai - 400 051.
10. The Commissioner of Police, Mumbai
having his office at Police Commissioner's Office,
Main Building, D.N. Road Mumbai G.P.O.,
Mumbai 400 001. ... Respondents
Mr. Mustafa Doctor, Senior Advocate a/w Mr. Urvaksh Anklesaria,
Mr. Gaurav Mehta, Mr. Malcom Siganporia, Mr. Rajendra Bothre,
Mr. Dinesh Pednekar i/by M/s. Hariani & Co. for the Petitioners in PIL
and for Applicant in Notice of Motion.
Mr. Shrihari Aney, Advocate General with Mr. J.S. Saluja, AGP for the
Respondent Nos.1 and 10 - State.
Mr. E.P. Bharucha, Senior Counsel a/w Ms. Trupti Puranik for
Respondent Nos.2 and 3.
Mr. L.M. Acharya for the Respondent No.4.
Mr. S.U. Kamdar, Senior Counsel a/w Mr. Atul G. Damle, Senior Counsel
a/w Mr. Anil D. Yadav for the Respondent No.6.
Mr. Anand Mishra a/w Ms. Sneha Singh and Mr. Sushil Upadhyay i/by
Mr. Ashok M. Saraogi, for Respondent No.7.
Mr. Sandesh Patil i/by Mr. Pawan Suryaprakash Patil for the Respondent
No.8.
CORAM : A.S. OKA &
C.V. BHADANG, JJ.
DATE : 2nd MARCH, 2016
ORAL JUDGMENT (Per A.S. Oka, J.)
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FACTS OF THE CASE
1 The submissions were heard on the earlier date. This
Petition concerns a plot of land known as Jawaharlal Nehru Garden
located to the north of Madame Cama Road, adjoining Mantralaya,
Mumbai. The said plot of land is in the prime area of South Mumbai. In
the Development Plan sanctioned under the Maharashtra Regional and
Town Planning Act, 1966 (for short "MRTP Act") in the year 1967, the
plot of land subject matter of this Petition (for short "the said land")
was shown in green zone. In the subsequent sanctioned Development
Plan (1981-2001), the same is reserved as a Recreational Ground (for
short "RG"). The issue concerns the structures which are in possession
of the Respondent Nos.4 to 9 which are situated on the said land. The
first prayer in this Petition under Article 226 of the Constitution of India
is for issuing a writ of mandamus directing the demolition and removal
of all encroachments and structures constructed on the said land and
for restoration of the said land for its use as RG. Consequential prayers
are made for directing the Respondent Nos.1 to 3 (State of Maharashtra
and the Municipal Corporation of the City of Mumbai) to take adequate
steps and measures to protect the said land from encroachments in
future. There are prayers for interim relief in addition to the aforesaid
prayers for substantive reliefs.
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2 The Respondent No.2 is the State of Maharashtra. The
Respondent No.3 is the Municipal Corporation of Greater Mumbai (for
short "the said Corporation") and the Respondent No.3 is its
Commissioner. The Respondent No.4 is the Maharashtra Tourism
Development Corporation Limited which is a Company owned and
controlled by the State Government. The Respondent No.5 is the
Employment Exchange which is set up by the State Government. The
Respondent Nos.6 and 7 are the political parties (Bharatiya Janata Party
and Janata Dal respectively). The Respondent No.8 is a Zunka Bhakar
Kendra stall. The Respondent No.9 is the Mahila Arthik Vikas
Mahamandal (MAVIM) which is again a Company owned and
controlled by the State Government. A part of the said land having
structures is occupied by the Respondent Nos.4 to 9.
3 The first Petitioner in this Petition is a Charitable Trust
registered under the Bombay Public Trusts Act, 1950. Various activities
carried out by the first Petitioner are set out in paragraph 2 of the
Petition. The Petitioner No.7 is an Association of residents of Oval -
Cooperage area. The Petitioner No.9 is a Federation of Churchgate
Residents. The credentials of the said two Associations are also set out
in the Petition. The other Petitioners are citizens who are the residents
of the area.
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4 As stated earlier, the contention raised by the Petitioners is
that the said land which is known as Nehru Garden is designated as RG
in the sanctioned Development Plan (1981-2001) of Mumbai under the
MRTP Act. It is also pointed out that under the earlier sanctioned
Development Plan of the year 1967, the said land was a part of the
Green Zone. It is pointed out that opposite the said land, there is a plot
of land on which there is a garden known as Mahatma Gandhi Garden
which is also shown as RG in the sanctioned Development Plan. It is
stated that said garden is well developed and is free of any
encroachments. There is a statue of Jawaharlal Nehru installed on the
said land. Reliance is placed on information obtained under the Right to
Information Act of 2005 (for short "the said Act of 2005") from the said
Corporation and other authorities as regards the area allotted to the
various Respondents in the Petition. As per the information furnished by
the letter dated 23rd November 2007 issued by the Public Information
Officer of the Public works Department, the Respondent Nos. 4,6 and 7
were allotted areas of 4546 square feet, 2682 square feet and 1384
square feet respectively.
5 By amending the Petition, it is brought to the notice of the
Court that on 25th April, 2013 the third Respondent - Mumbai
Municipal Corporation (for short "the said Corporation") issued a notice
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under Section 354A of the Mumbai Municipal Corporation Act, 1888
(for short "the said Act") to the Respondent No.6 (Bharatiya Janata
Party)pointing out that an unauthorised construction is being carried
out. The Respondent No.6 was called upon to stop the construction. It
is contended that after service of the said notice, no steps were taken by
the said Corporation and the work of construction proceeded. The
Prayers in the Petition are for removal of all the structures on the said
land and for restoration of the said land as RG.
THE SUBMISSIONS OF THE PETITIONERS
6 The learned Senior Counsel appearing for the Petitioners
relied upon the provisions of the Development Control Regulations for
Greater Mumbai, 1991 (for short "the DCR"). He invited our attention
to Exhibit-'K' to the Petition. Exhibit-K is the information supplied to one
of the Petitioners under the Right to Information Act, 2005 by the
Public Works Department of the State Government. He pointed out that
the information records that as the said land was in Green Zone,
permanent construction thereon cannot be carried out. He pointed out
that the said information records that before the Garden was made on a
part of the said land, there were temporary sheds erected which were
given for use of the Government offices and Political Parties. He also
pointed out the stand taken by the State Government in one of its
affidavits in which it is contended that the prime responsibility of
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removal of encroachments as well as illegal constructions on the said
land was of the Municipal Corporation. His submission is that none of
the structures which are in existence in the present form were in
existence when the sanctioned Development Plan (1981-2001) came
into force. He relied upon clause 1(a) of Regulation 13 of the DCR and
submitted that unless the buildings are lawfully constructed before
coming into force of the DCR, the same cannot be retained as the
reservation of the said land is admittedly for RG. Therefore, the basic
submission of the Petitioners is that none of the structures can be
tolerated after the DCR came into force in the year 1991.
7 He also invited our attention to the provisions of the
Development Control Rules, 1967 which were in operation till the DCR
came into force. He invited our attention to Rule 3 and other relevant
Rules. He also invited our attention to Rule 4B and Rule 31. He
submitted that as the said land was falling in green zone under the
Development Plan of the year 1967, in view of Rule 31 of the said Rules
of 1967, the structures/ buildings for limited usages as specified under
Rule 31 could have been constructed. He submitted that the structures
on the said lands are used for the purposes which are not covered by
Rule 31. His submission is that in any case, after the said Rules of 1967
came into force, there could not have been any construction on the said
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land. His submission is that even assuming that the said structures were
in existence, the same cannot be tolerated in view of clause 1(a) of
Regulation 13. He also pointed out various affidavits on record. He
pointed out that there is a newspaper report which indicates that the
Respondent No.4 has agreed to vacate the portion of the said land in its
possession. His submission is that none of the Respondents should have
taken this Petition as an adversarial litigation inasmuch as the
requirement of maintaining the said land as a Recreation Ground ought
to have been accepted by everyone in the light of the well settled legal
principles laid down by the Apex Court.
8 He pointed out that none of the Respondents including the
State Government and the said Corporation have placed on record any
documents showing that the existing structures were lawfully
constructed. He pointed out that as far as the Respondent No.6 is
concerned, premises having an area of 1,200 square feet was allotted
under the Government Resolution dated 31 st May, 1989 for temporary
period of two years. He urged that the said period was never extended.
He pointed out that as far as the other Respondents are concerned,
there is no document placed on record showing the allotment. He
invited our attention to the affidavit in reply filed by the Respondent
No.8 Mr. Ramchandra Dagadu Sawant and the documents annexed
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thereto. He submitted that the Leave and Licence agreement dated 18 th
March, 1996 executed by the State Government in respect of the land
on which the stall of the Respondent No 8 is constructed has expired
long back on 18th February, 1997. Relying upon further affidavit filed
by the Petitioners he pointed out that in the year 2000, Zunkha Bhakar
Scheme has been discontinued. He pointed out that the Leave and
License was executed only for the purpose of running the Zunkha
Bhakar Centre as per the scheme of the State Government which is a
part of the Government Resolutions dated 27th December, 1995 and 25th
August, 1995. He also invited our attention the affidavit filed by the
Respondent No.4. He pointed out that as far as Respondent No.6 is
concerned, even according to the stand of the State Government, by a
subsequent order dated 31st October, 1995 an additional area of 1482
square feet has been allotted. His submission is that from the letter
dated 5th September, 1996 which is placed on record and marked as 'A2'
it will have to be inferred that an additional area was allotted to the
Respondent No.6 which makes the total area allotted to it as 1482
square feet. In any event, he submits that the total area allotted to the
Respondent No.6 will be 2682 square feet. He invited our attention to
the affidavit filed by Shri Keshav Y. Dhotre, the Designated Officer of
the said Corporation. He pointed out that earlier, the officers of the
Municipal Corporation were not allowed entry in the premises of the
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Respondent No.6 for the purposes of carrying out inspection. Inviting
our attention to the inspection report dated 30 th March, 2015 annexed
to the affidavit of Shri Keshav Y. Dhotre dated 9 th April, 2015, he urged
that now the structure in possession of the Respondent No.6 consists of
two full fledged floors (Ground and first floor). The area of the ground
floor is 476 square meters and the area of the alleged mezzanine floor is
430 square meters. He pointed out that on so called mezzanine floor,
there is a Conference Hall, 1 Common Hall and 14 cabins/ rooms. He
pointed out that even going by the stand taken by the State
Government, at highest, the area allotted to the Respondent No.6 is
2682 square feet and unchallenged inspection report submitted by Shri
Dhotre shows that the area of the ground floor is nearly double the said
area. He also pointed out that only after the said inspection was carried
out on 31st March, 2015, on 8th June, 2015 the Respondent No.6 made
an application to the State Government for rectification of the area
allotted to it by contending that the Respondent No.6, after the initial
allotment, have not made any additions or alterations and have also
not carried out extension. He submitted that after the service of the stop
work notice dated 25th April, 2013 the Respondent No.6 made an
application for regularisation through an Architect which was not
granted. The submission is that the Respondent No.6 indulged in illegal
construction.
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9 Lastly, the submission of the learned counsel appearing for
the Petitioners is that it is the duty of the State to ensure that the
reservation for RG in the sanctioned Development Plan is scrupulously
implemented.
THE SUBMISSIONS OF THE LEARNED ADVOCATE
GENERAL FOR THE STATE
10 The learned Advocate General representing the State
invited our attention to the several documents on record which are
annexed to the affidavit of Shri Padmakar Isanji Sukhadeve, Sub
Divisional Engineer, South Public Works Division which show that at
least in the year 1978, number of structures were in existence on the
said land which are described as CDO Barrack Nos.1, 2 and 10. He
pointed out that the premises in possession of a political party - Janata
Dal (Respondent No.7) were in possession of the Janata Party in the
year 1978. He pointed out that the premises allotted to the Respondent
No.6 were in possession of Hindustan Samachar. His submission is that
the structures in the form of barracks were in existence for several
years. As far as allotment to the Respondent No.6 is concerned, he
candidly stated that initially, constructed area of 1200 square feet was
allotted to the Respondent No.6 and subsequently on 31 st October, 1995
an additional area of 1482 square feet allotted to the Respondent No.6.
He did not dispute that the agreement executed in favour of
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Respondent No.6 was only in respect of an area of 1200 square feet and
on 6th June, 1998 the term of the agreement has expired. However, he
stated that rent is being paid by the Respondent No.6 which is being
accepted by the State Government. On a query being made by the
Court, he candidly accepted that what is constructed in excess of the
area allotted to the Respondent No.6 will have to be pulled down.
THE SUBMISSIONS OF THE MUMBAI MUNICIPAL
CORPORATION
The learned Senior Counsel representing the Mumbai
Municipal Corporation relied upon the affidavits filed on record. He
also invited our attention to the affidavit of Shri Dhotre which specifies
the area of the structure presently in possession of the Respondent
No.6. He pointed out that though after the service of the stop work
notice dated 25th April, 2013 issued by the said Corporation, the
Respondent No.6 through his Architect applied for regularisation, the
said proposal was not granted. He pointed out the communication
dated 18th June, 2013.
12 The learned counsel appearing for the Respondent No.4
invited attention of the Court to the affidavit in reply filed by the said
Respondent. He submitted that there is no illegality associated with the
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possession of the said Respondent. He denied that the fourth
Respondent has decided to vacate the premises in its possession. He
pointed out that as set out in the affidavit in reply, the possession of
the said Respondent is lawful and there is nothing illegal about the
activity carried out by the said Respondent. He pointed out that even
before 1981-2001 Development Plan came into force, the structure
which is in possession of the Respondent No.4 was in possession of the
Tourism Department of the State Government. The learned counsel
appearing for the Respondent No.7 pointed out that it is not even the
case that any illegal construction has been made by the Respondent
No.7. His submission is that the Respondent No.7 's predecessor Janata
Party was in possession of the premises for several years prior to coming
into force of the sanctioned Development Plan. The learned counsel
appearing for the Respondent No.8 submitted that the Zunkha Bhakar
Kendra has been lawfully constructed in accordance with the agreement
entered into which is annexed to the affidavit in reply. None appeared
for the Respondent No.9.
THE SUBMISSIONS OF THE RESPONDENT NO.6
13 The learned Senior Counsel appearing for the Respondent
No.6 initially contended that no additional construction has been
carried out by the Respondent No.6 and the area of the premises in
possession of the Respondent No.6 continues to be the same which
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existed on the dates of respective allotments. He submitted that clause
1(a) of Regulation 13 of the DCR protects all the structures which were
lawfully used. He submitted that it is not necessary that the structure
should have been constructed after obtaining permission for attracting
the provisions of the clause 1(a) of the Regulation 13. He has produced
for perusal of the Court a photocopy of the receipt showing that the
State Government has accepted rent in the sum of Rs.24,083/- on 30 th
January, 2016 from the Respondent No.6. He would, therefore, urge
that possession of the Respondent No.6 is lawful and though Lease
Agreement may not have been extended, the State Government is
regularly accepting the rent from the Respondent No.6. He submitted
that the lawful user which existed on the date on which Development
Plan came into force has been expressly protected. He submitted that
there is no merit in the allegation that any illegality is committed by the
Respondent. He submitted that the structures in the form of barracks
were in existence on the said land much prior to coming into force of
the Development Plan (1981 to 2001) and now it is too late in the day
to urge that the structures were in contravention of the Development
Plan sanctioned in the year 1967.
14 We must note here that the submissions of the learned
counsel appearing for the parties concluded on 11 th February, 2016.
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Yesterday, when the Petition was listed for Judgment, the learned Senior
Counsel appearing for the Respondent No.6 stated that the said
Respondent is willing to alter the existing structure in its possession for
bringing the same down to the area of 1,200 square feet as it existed
on the date of allotment (31st May 1989). On a query being made by
the Court, he clarified that the alteration will be made in such a manner
that only the ground floor structure will continue to exist and that
mezzanine floor will be removed. Yesterday, he sought time of six
months to carry out aforesaid alterations so as to bring down the area
of the structure to 1,200 square feet. Today, the learned Senior Counsel
submits that time of eight months may be granted.
CONSIDERATION OF SUBMISSIONS
15 We have given careful consideration to the submissions.
There is no dispute between the contesting parties that in the
sanctioned Development Plan (1981 to 2001), the said land is shown
reserved as a Recreation Ground (RG). There does not seem to be any
dispute that in the sanctioned Development Plan of the year 1967, the
said land was shown as falling in Green Zone. The Development Control
Regulations (DCR) are of the year 1991. In the DCR, the RG is included
in the definition of "amenity" in clause 7 of Regulation 3. Regulation 23
deals with the structures/uses permitted in RG/Amenity open spaces.
The DCR is a piece of a subordinate legislation. We are making a
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reference to clause (g) of the Regulation 23 only to indicate the object
of reserving a particular land as a RG. The relevant part of clause (g)
reads thus :-
"(g) Structures/uses permitted in recreational open
spaces :-
(i) In a recreational open space exceeding 400 sq.m in area
(in one piece), elevated/ underground water reservoirs,
electric sub-stations, pump house may be built and shall
not utilise more than 10 per cent of the open space in
which they are located.
(ii) In a recreational open space or playground of 1000 sq.
m or more in area (in one piece and in one place),
structures for pavilions, gymnasia, club houses and
other structures for the purpose of sports and recreation
activities may be permitted with built-up area not
exceeding 15 per cent of the total recreational open
spaces in one place. The area of the plinth of such a
structure shall be restricted to 10 per cent of the areas
of the total recreational open space. The height of any
such structure which may be single storey shall not
exceed 8 m. A swimming pool may also be permitted in
such a recreational open space and shall be free of FSI.
Structures for such sports and recreation activities shall
conform to the following requirements :-
(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 houldings, the recreational
open space is required to be kept as recreational
open space or ground viz. 'R.G.' in the layout or
sub-division of the land.
(b) The proposal for construction of such
structure should come as a proposal from the
owner/owners/ society/societies or federation of
societies without any profit motive and shall be
meant for the beneficial use of the
owner/owners/members of such society/societies
/federation of societies.
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(c) Such structures shall not be used for any
other purpose, except for recreational activities
for which a security deposit as decided by the
Commissioner will have to be paid to the
Corporation.
(d) The remaining area of the recreational
open space or playground shall be kept open to
sky and properly accessible to all members as a
place of recreation, garden or a playground.
(e) The owner/owners/ or society or societies
or federation of the societies shall submit to the
Commissioner a registered undertaking agreeing
to the conditions in (a) to (d) above."
16 Thus, the intention seems to be that a land which is
reserved for RG should be used for the purposes of sports and
recreation subject to the compliance with various terms and conditions
listed in clause (g). The question before the Court is whether the user of
the structures which are in existence on the said land can be said to be
in conformity with the reservation for RG. Fortunately, none of the
Respondents who are before the Court have come out with the case that
their present user is in conformity with the user permissible for RG in
the sanctioned Development Plan or in the DCR.
17 Clause 1(a) of Regulation 13 reads thus :-
"13. Exemptions - (1) Existing non-conforming uses to
continue in certain circumstances :-
(a) Any lawful use of land/buildings/premises
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existing before the coming into force of these
Regulations may continue even if it does not conform
to the use provisions of these Regulations provided
such non-conforming use is not extended or enlarged
except as provided in these Regulations."
(emphasis added)
18 The argument of the learned Senior Counsel appearing for
the Respondent No.6 was that to attract clause 1(a), the use of the
buildings or premises existing before coming into force of the DCR has
to be lawful and it is not necessary that the buildings or premises
should have been lawfully constructed. We have already quoted clause
1(a) of Regulation 13. It contemplates lawful use of land/buildings/
premises. Buildings or premises can be lawfully used provided the
buildings or premises are lawfully constructed. In other words, if a
building or premises is not lawfully constructed, it cannot be said that it
is being lawfully used. Therefore, on plain reading of clause 1(a), the
interpretation sought to be put by the learned Senior Counsel appearing
for the Respondent No.6 will have to be rejected.
19 The argument of the Petitioners is that the structures are
contravening structures inasmuch as the said land was in Green Zone in
the sanctioned Development Plan of the year 1967 and in terms of Rule
31 of the said Rules of 1967, a very limited user of the premises in
Green Zone was permissible which did not include the present user.
Therefore, the argument is that the structures on the said land are
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contravening structures even as far as the 1967 Development Plan is
concerned. For dealing with this argument, it will be necessary to make
a reference to the affidavit of Shri Padmakar Isanji Sukhadeve, Sub
Divisional Engineer of the Public Works Department of the State
Government and in particular the annexures thereto which are Exhibits
- 1 and 2 to the said affidavit. Exhibit - 2 is a copy of the Government
of Maharashtra Circular dated 31st August 1978 which shows that three
rooms in CDO Barrak No.2 were in possession of the Superintendent,
Parks & Gardens and the Director of Tourism was in possession of Room
Nos.4 to 6 in the same barrack having total area of about 519 square
feet. The Janaty Party was in possession of Room Nos.1 and 2 of CDO
Barrack No.10 having total area of 820.90 square feet. As far as the
Hindustan Samachar is concerned, it is mentioned that it was in
possession of CDO Barrack No.1. It is stated that Hindustan Samachar
was allotted additional area of 430 square feet in addition to the
accommodation already allotted. In the circular dated 6th October, 1978
issued by the General Administration Department of the State
Government a copy of which is annexed to the said affidavit it is stated
that Room No.3 in CDO Barrack No.10 was in possession of the
Maharashtra Purogami Vidhimandal Congress. In chart at Exhibit-1 to
the said affidavit, it is claimed that the aforesaid structures were in
existence prior to the year 1978 as most of the allotments are of the
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year 1978. Chart at Exhibit-1 records that the Directorate of Tourism
was in possession of premises having area of 519 square feet and 704
square feet which were allotted in the year 1978. It records that
premises allotted to the Employment Exchange was having an area of
4028 square feet which was allotted on 15th June, 1993 but was in
existence on or before 1978. It is stated that MAVIM (the Respondent
No.9) was allotted an area of 2,200 square feet. The allotment of an
area of 1,200 square feet in Barrack No.1 was made to the Respondent
No.6 on 31st May, 1989. Thus, the record of the year 1978 in the form
of Circulars dated 31st August, 1978 and 6th October, 1978 show that
the structures in the form of CDO Barrack Nos.1, 2 and 10 were in
existence on the said land. The said documents shows that Barrack
No.10 consisted of Room Nos.1 and 2 and Barrack No.2 consisted of
Room Nos.1 to 6. The number of rooms in Barrack No.1 are not
specified but it appears that Barrack No.1 was in possession of
Hindustan Samachar. Now, it is too late in the day to contend in this
Petition filed in the year 2013 that the structures which were in
existence in the year 1978 were contravening structures insofar as 1967
sanctioned Development Plan is concerned. For such a long time, no
one has raised any objection that the structures which were in existence
atleast in the year 1978 were contravening structures. It is not the case
made out in the Petition that between 1978 till the date on which the
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Development Plan of 1981 - 2001 was sanctioned, on the said land, any
further constructions were made. However, after coming into force of
the Development Plan (1981-2001), on the said land which was shown
as RG, there could not have been any construction of contravening
structures save and except the structures erected for permissible user as
per Regulation 23. Therefore, the contravening structures which came
into existence after sanctioned Development Plan (1981-2001) came
into force reserving the said land as RG, cannot be tolerated.
20 Now, we may make a reference to the case made out as
regards the structure of the Respondent No.6. Under the letter of
allotment dated 16th June, 1989 issued on the basis of the Government
Resolution dated 31st May 1989, the Public Works Department of the
State Government allotted to the Respondent No.6 an area of 1,200
square feet in Barrack No.1 which was earlier in possession of M/s.
Hindustan Samachar. The letter records that allotment was only for a
period of two years subject to payment of rent of Rs.6,000/- pm. It is
stated in the said letter that rent at the rates revised from time to time
by the State Government will have to be paid. It is specifically stated
that allotment was for a temporary period of two years. Thus, the
allotment made under the letter dated 16 th June, 1989 was of the
constructed area of 1,200 square feet in Barrack No.1. An agreement
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dated 31st May, 1989 was executed by and between the State
Government and the Respondent No.6 incorporating various terms and
conditions in terms of the letter of allotment. The said agreement was
to remain in force until 31 st May, 1991. The second allotment is by the
Government Circular dated 31st October, 1995. It records that an
additional area of 1482 square feet was allotted in the compound of
Barrack No.1. The Circular records that the said area is in the
compound of the Barrack no.1 and around the office of the Respondent
No.6 set up in the said Barrack No.1. Clause 3 of circular dated 31 st
October, 1995 incorporates a specific condition that before carrying out
any construction on the additional area of 1482 square feet, a
permission of the Competent Authority including the said Corporation
shall be obtained. Thus, it is crystal clear that additional area allotted
under the Circular dated 31st October, 1995 was an open area and no
construction could be carried out thereon without seeking prior
permission of the Competent Authorities. We must note here that it is
not the case of the Respondent No.6 or even the said Corporation that
in relation to the said added area of 1482 square feet, at any point of
time, the Respondent No.6 even applied for grant of permission to
construct a building or structure. Thus, it becomes an admitted position
that the construction on the additional area was illegally carried out by
Respondent No.6. The matter does not rest here.
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21 We must make a reference to the affidavit filed by Shri
Keshav Y. Dhotre, the Designated Officer of the Mumbai Municipal
Corporation. The said affidavit was filed after visiting the premises in
possession of the Respondent No.6 as per the order dated 27 th March,
2015. Inspection report dated 30th March, 2015 has been annexed to
the said affidavit which records that Shri Dhotre in presence of Shri
Mukund Kulkarni of the Respondent No.6 and other office bearers
inspected the premises on 30th March, 2015 at 11.00 am. The
description of the premises of the Respondent No.6 has been
incorporated in the said report apart from annexing number of
photographs and a sketch. The description of the structure recorded by
Shri Dhotre reads thus :-
"1. The premises consist of Ground & Mezzanine floor
with BM side walls & GI sheet roofing and mezzanine
floor consist of ladi-coba-ladi-flooring supported
with RSJ adm. about 476 sq.m at gr. floor and adm.
about 430 sq.m. at mezzanine floor.
2. There are 11 Nos. of cabins/ rooms, 1 No. of Conference
Hall, 1 No. of Waiting Hall, 4 Nos. of Toilet Blocks, 2
Nos.Kitchen Room, Meter and Server Room consisting of
BM partition walls/ glass partition/ gypsum partition at
gr. Floor and 14 Nos. of cabins/ rooms, 1 No. of
Conference Hall, 1 No. of Common Hall, and 4 Nos. of
Toilet Blocks consisting of BM partition walls/ glass
partition/ gypsum partition at mezzanine floor as shown
in the sketch."
(emphasis added)
22 We must note here that though the said report is produced
on record along with the affidavit dated 9 th April, 2015, the contents of
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the affidavit of Shri Dhotre and the report have not been disputed by
Respondent No.6. Thus, it becomes an undisputed position that the area
of the ground floor premises constructed by the Respondent No.6 was
found to be 476 square meters which is about 5123 square feet and the
area of the alleged mezzanine floor thereon was found to be 430 square
meters which is approximately equivalent to 4628 square feet. As stated
earlier, the constructed area allotted to the Respondent No.6 was 1,200
square feet inside existing barrack. Additional open area of 1482 square
feet was allotted in the year 1995. Thus, what was found on 30 th
March, 2015 was a ground floor having an area which is nearly double
the allotted area of 2682 square feet. In addition, the mezzanine floor
4628.48 square feet was found. The mezzanine floor really appears to
be a regular floor which has a conference hall and cabins. As stated
earlier, it is not the case made out by the Respondent No.6 that for
making construction on the additional area of 1482 square feet, even an
application for grant of building permission was made. At this stage, we
must note another fact which is very relevant. The said fact is that the
stop work notice was issued by the Mumbai Municipal Corporation to
the Respondent No.6. The said stop work notice is dated 25 th April,
2013 which records that the Respondent No.6 started unauthorised
repairs of the existing sloping roof structure by increasing the height
with BM wall and construction of mezzanine floor with R.S.J. ladi coba.
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The additions and alterations were shown in the sketch annexed to the
notice. There is an affidavit filed by Shri Dharmendra D. Kantharia,
Assistant Engineer (B&F) of the Corporation. A copy of the letter dated
18th June, 2013 addressed by the Assistant Engineer (BP) City-I to M/s.
Deshmukh & Associates, Architects of the Respondent is annexed
thereto. The subject of the said letter is regularisation of the existing
office of the Respondent No.6 in CDO Barrack No.1. The opening
portion of the said letter records that sanction is refused and the
proposal is rejected in exercise of powers under the MMC Act as well as
MRTP Act. However, it records that on compliance with 22 conditions
incorporated therein, regularisation proposal could be processed. It is
not the case of the Respondent No.6 that thereafter the regularisation
proposal was processed and it was allowed. Hence, the application
made by the Respondent No.6 for regularization was rejected. Thus,
everything over and above the area of 1,200 square feet in Barrack No.1
was constructed illegally by the Respondent No.6. Moreover, material
alterations were made to the main structure of 1200 square feet by
constructing a mezzanine floor thereon. The admitted area of the
present structure is already quoted above. Hence, not only that illegal
structure was made by the Respondent No. 6, but the structure was
extended by making an encroachment on a very valuable Government
land reserved as RG. Shockingly, after the report was submitted by the
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Municipal Officer, the Respondent No. 6 made an application on 8 th
June 2015 to the State Government seeking the rectification of the area
mentioned in the allotment orders of the year 1989 and 1995. As the
area mentioned in the allotment documents of 1989 and 1995 was
never disputed by the Respondent No.6, the said Application ought to
have been rejected by the State Government. Now, this controversy is
put to rest by the statement made across the Bar by the Respondent
No.6 that the said Respondent will restore the structure as it existed on
31st May, 1989. It follows that as what was in existence was a single
storied structure having an area of 1200 square feet, the restoration will
have to be made accordingly. It is only because of the statement made
across the Bar that we are not issuing a direction for demolition of the
entire structure which deserves to be demolished. Today, a request is
made for grant of time of eight months to remove the additions and
alterations. According to us, considering what we have recorded above,
time of six months sought yesterday was more than enough which can
be granted only by way of indulgence.
23 There is another feature of the controversy. It is not
brought on record either by the State Government or by the Respondent
No.6 that by following due process of law and by following a process
which is fair and transparent, the lease period of a very valuable
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property was extended beyond the period of two years which expired
on 1991. Even for allotting additional area, such a procedure was not
followed. However, we need not go any further on this aspect as in this
Petition, there is no challenge to continuation of the possession of the
Respondent No.6 on this ground. However, this is an aspect which will
have to be taken into consideration by the State Government.
24 Now, we turn to the Respondent No.4 which is a
Government of Maharashtra Undertaking. There is an affidavit in reply
filed by the Respondent No.4 of Ms. Kavita N. Solunke. It is stated that
the premises in CDO Barrack which are now in possession of the
Respondent No.4 was allotted to the Directorate of Tourism in the year
1972 and on establishment of the Respondent No.4 on 20 th January,
1975, the said Respondent has been occupying the same. It is stated in
sub paragraph (A) of paragraph 3 which reads thus :-
"(A) The subject property viz. C.S. No.240 & 240-A
admeasuring ___ sq. mtrs. situate on Madame Cama
Road and adjoining Mantralaya, Mumbai belonging to
Public Works Department of Government of
Maharashtra. As per the records, the C.D.O. hutments -
which are now in possession of Respondent No.4 - was
allotted to the Directorate of Tourism from 1972. Later,
on & from the establishment of Respondent No.4 -
M.T.D.C. 20/1/1975, the Respondent No.4 has been
occupying the said tenements. Initially, the Respondent
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No.4 was in possession of about 6761 sq. ft. constructed
area and 3239 sq.ft. open space. The Respondent No.4
had been paying monthly rent to the Public Works
Department."
25 We must note here that the area claimed to be in
possession by the Respondent No.4 appears to be much in excess of the
area which is reflected from the Government Circulars dated 31 st
August, 1978 and 6th October, 1978. Both the Circulars record that the
area in possession of the Directorate of Tourism was admeasuring
518.90 square feet comprising of Room Nos.4 to 6 of CDO Barrack
No.2. As held earlier, what can be tolerated is the structure in existence
on the date on which reservation of RG was imposed on the said land.
The claim made by the Respondent No.4 is not supported by any
authentic documents annexed to affidavit of Shri Sukhadeve. Further
part of the affidavit Ms. Solunke records that on 27 th August, 1992, the
land admeasuring 1,000 square meters was allotted to the Respondent
No.4 out of the area of 4795 square meters which was allotted by the
State Government to the said Corporation. It is stated that the area of
1,000 square meters is used for parking of tourist vehicles. The letter
dated 15th June, 2013 addressed to the Superintending Engineer of the
Public Works Department by its Executive Engineer records that a
portion of the said land on which garden is developed which is having a
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statute of Pandit Jawaharlal Nehru has been placed in possession of the
Respondent No.4 for the purposes of its maintenance and
beautification. The conditions on which the said portion of the said land
has been handed over have been incorporated in the said letter. Even in
case of the Respondent No.4, what can be allowed to be occupied by the
Respondent No.4 is the constructed area which existed on the date on
which the reservation for RG was imposed by the sanctioned
Development Plan. Obviously, use of large area of 1,000 square meters
for parking of tourist vehicles cannot be permitted on RG.
26 As far as the Respondent No.8 is concerned, Shri.
Ramchandra Dagadu Sawant has filed an affidavit. To the said affidavit,
a copy of the agreement dated 18th March, 1996 executed by and
between the State Government and him has been annexed which
records that in terms of the Government Resolution dated 27 th April,
1995 allotment of a portion of the said land was made to the said
Respondent free of cost for running a Zunkha Bhakar Centre as a
Licensee. The letter dated 20th July, 1996 issued by the District Collector
has been relied upon. The agreement provides that the License will be
only upto 18th February, 1997. We fail to understand as to what is the
authority of the Respondent No.8 to continue thereafter. The
Government Resolution dated 27th June, 2000 (Exhibit - H to the
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additional affidavit of the Petitioners) records that Zunkha Bhakar
Scheme has been cancelled and the lands allotted for setting up Zunkha
Bhakar Centers should be returned to the owners or the concerned
Authorities. By no stretch of imagination, the Respondent No.8 has any
right to continue to occupy any portion of the said land.
27 As far as the Respondent No.7 - Janata Dal is concerned,
though there is a reply filed, the document of allotment is not annexed
to the said reply. It is merely contended that there is nothing wrong in
the allotment and no additions and/or alterations have been made by
the said political party. Not a single document is annexed to the said
affidavit. We may note here that Government Circular dated 31 st
August, 1978 records that the Janata Party (Predecessor of Respondent
No.7) was in possession of two rooms in CDO Barrack No.10 totally
admeasuring 830 square feet. The circular dated 6 th October, 1978
shows that the area in possession of the Janata Party of the two rooms
in Barrack No.2 is 901.90 square feet. Even the State Government has
not placed on record any document to show in what manner the
premises were allotted earlier to the Janata Party and thereafter, to the
Respondent No.7. As far as the Respondent No.9 is concerned, there is
no return filed. The terms and conditions on which the respondent No.9
is in possession have not been placed on record. The Respondent No.5
is the Employment Exchange of the State of Maharashtra.
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28 To summarize, valuable property in the prime area of
south Mumbai has been allotted to the two political parties without
following a fair and transparent procedure. But there is no challenge to
the allotment of the portions of the said land on that ground. However,
considering the reservation of RG, only those structures which were in
existence on the date on which the reservation came into force will
have to be protected. Therefore, a determination will have to be made
with reference to the date on which the reservation of RG was imposed.
Needless to state that user as it existed on that date can be tolerated
under clause 1(a) of Regulation 13. The exercise of determining the
existence of the structures and user thereof on the relevant date will
have to be undertaken by the Mumbai Municipal Corporation.
29 Before we part with the Judgment, we must note here that
a larger issue is involved in this Petition. In the PIL, the Petitioners have
specifically relied upon the well known decision of the Apex Court in
the case of M.C. Mehta Vs. Kamal Nath and Ors.1 It is the famous
decision of the Apex Court which invokes the public trust doctrine.
What is relevant for our purposes is paragraphs 34 and 35 which read
thus :-
"34. Our legal system- based on English common law -
includes the public trust doctrine as part of its
jurisprudence. The State is the trustee of all natural
resources which are by nature meant for public use
1 (1997) 1 SCC 388
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and enjoyment. Public at large is the beneficiary of
the sea-shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is
under a legal duty to protect the natural resources.
These resources meant for public use cannot be
converted into private ownership.
35. We are fully aware that the issues presented in this case
illustrate the classic struggle between those members of
the public who would preserve our rivers, forests, parks
and open lands in their pristine purity and those
charged with administrative responsibilities who, under
the pressures of the changing needs of an increasingly
complex society, find it necessary to encroach to some
extent upon open lands heretofore considered inviolate
to change. The resolution of this conflict in any given
case is for the legislature and not the courts. If there is
a law made by Parliament or the State Legislatures the
courts can serve as an instrument of determining
legislative intent in the exercise of its powers of judicial
review under the Constitution. But in the absence of
any legislation, the executive acting under the doctrine
of public trust cannot abdicate the natural resources
and convert them into private ownership, or for
commercial use. The aesthetic use and the pristine
glory of the natural resources, the environment and the
ecosystems of our country cannot be permitted to be
eroded for private, commercial or any other use unless
the courts find it necessary, in good faith, for the public
good and in public interest to encroach upon the said
resources."
(emphasis added)
The doctrine of public trust is very much applicable in
the present case as the said land is vesting in the State which can be
used only as RG. Since the said land is vesting in the State, the public at
large is the beneficiary of the said land reserved as RG. The State as a
trustee must protect the interests of public at large and cannot allow the
user thereof contrary to the reservation.
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30 The preparation, finalisation and sanction of a
Development Plan under the MRTP Act contains an elaborate procedure
and, therefore, the view taken by this Court is that it partakes a
character of a legislative function. The object of imposing the
reservation for RG is to ensure that there are open spaces available for
recreation. Regulation 23 is a pointer which shows that a land reserved
for RG has to be used for recreational purposes as provided therein.
There are very few open spaces in the city. The City of Mumbai is
becoming a concrete jungle. Therefore, necessity of having open spaces
and Recreation Grounds in the City need not be specifically emphasized.
The citizens have right to live in a pollution free environment which is
guaranteed by Article 21 of the Constitution of India. Right to lead a
meaningful life is guaranteed under the same article. The citizens of
this city need open spaces and recreational grounds where they can
breath freely and can participate in the recreational activities. The
Garden on the said land is named after Late Pandit Jawaharlal Nehru.
There is a statue of Jawaharlal Nehru in the developed garden.
Opposite the Nehru Garden, there is another garden known as
"Mahatma Gandhi Garden" in which there is a statue of the father of
the Nation. On the said land which is reserved as RG, there are no
structures/ encroachments.
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31 As far as the structure of the Respondent No.8 is
concerned, the same will have to go. The Respondent Nos.4 and 9 are
undertakings of the Government of Maharashtra. The Respondent No.5
is a set up by the Government itself. Two other structures are in
possession of a recognized political parties at National level. Substantial
part of the structure of the Respondent No.6 will be demolished. We
fail to understand the reasons which prevent the State Government
from fully implementing the RG reservation in the most prime locality
in the City of Mumbai in its true letter and spirit. We are conscious of
the fact that Regulation 13 clause 1(a) protects certain categories of
users of the existing structures. Nevertheless, in this Petition, we are not
dealing with the private property. We are dealing with a land vesting in
the State on which there is a statue of Jawaharlal Nehru. The majority
of structures are occupied by public sector undertakings of the State
and two structures are occupied by the leading political parties. Though
we cannot issue any directions which will run contrary to clause 1(a) of
Regulation 13, we are sure that this is a fit case where the State
Government should seriously consider of shifting the existing offices
elsewhere so that substantial part of the said land can be used as RG.
We are sure that if a proper appeal is made to the two leading political
parties, even the possession of retainable premises in their possession
can be secured so that the said land can be given its true status of a
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garden or a recreational ground named after late Jawaharlal Nehru.
The question is whether the State and the two national parties can
allow the present user of the said land named after one of the greatest
personalities of the last century especially when it is vesting in the State
and is reserved as RG. The only direction which we can issue on this
aspect is of directing the State Government to consider this issue and
take a proper decision. If there is a proper appeal made by the State
Government in the larger public interest, we are sure that even the two
political parties which are in possession of the office premises will rise
to the occasion and will co-operate with the State Government by
vacating the respective premises in their possession.
32 We, therefore, dispose of the Petition by passing the
following order :-
ORDER
(i) We accept the statement made across the Bar by the
learned Senior Counsel appearing for the Respondent
No.6 that the said Respondent shall reduce the size of the
structure in its possession to 1,200 square feet. In short,
the statement of the Respondent No.6 is to restore the
statue-quo ante as existed on 31 st May, 1989. The
statement made by the learned Senior Counsel appearing
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for the Respondent No.6 on instructions is accepted as the
undertaking of the Respondent No.6. In view of this
undertaking, we grant time of six months from today to
the Respondent No.6 to restore status-quo ante as it
existed on 31st May, 1989. We make it clear that the
mezzanine floor will have to be removed in compliance
with the undertaking;
(ii) We clarify that as the case made out in the Petition is that
in fact there are substantial changes made in the structure
in possession of the Respondent No.6, the issue of the
legality and validity of the restored structure
admeasuring 1,200 square feet is expressly kept open;
(iii) We direct that on the failure of the Respondent No.6 to
abide by the aforesaid undertaking, the said Municipal
Corporation shall take action of demolition in respect of
the entire structure of the Respondent No.6. Needless to
state that the action of demolition will have to be taken
without any further notice to the Respondent No.6;
(iv) We direct the State Government to take action in
accordance with law for the removal of the structure of
the Respondent No.8. This action shall be completed
within the time limit of three months;
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(v) We direct the said Corporation to issue notice to all
concerned parties for ascertaining the extent of structures
which were in existence on the date on which reservation
of RG was imposed on the said land and for ascertaining
the nature of the user as of that date. The said Municipal
Corporation after hearing all the concerned parties shall
determine what can be protected and tolerated in
accordance with clause 1(a) of Regulation 13 of the DCR.
Appropriate decision shall be taken by the said Municipal
Corporation on this aspect after hearing all the concerned
parties within a period of three months from the date on
which an authenticated copy of this Judgment and Order
is produced in the office of the said Municipal
Corporation;
(vi) Needless to add that the said Municipal Corporation shall
take action of demolition in accordance with law in
respect of structures found to be contravening structures;
(vii) The action in respect of the contravening structures, if
any, shall be completed by the said Municipal Corporation
within a period of six months from the date on which an
authenticated copy of this judgment and order is
produced in the office of the said Corporation;
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(viii) As observed in the last paragraph, the State Government
shall consider of implementing the reservation of RG in
its true letter and spirit on the said land by removing all
the existing structures on the said land. Appropriate
decision will be taken by the State Government in the
light of the observations made in this Judgment and
Order within a period of six months from the date on
which an authenticated copy of this order is produced
before the Chief Secretary of the State Government;
(ix) Rule is partly made absolute with the above directions.
There will be no order as to costs. Notice of Motion does
not survive and the same is disposed of;
(x) At this stage, the learned counsel appearing for the
Respondent No.8, on instructions of the Respondent no.8,
seeks time of six months to remove the structure made by
the said Respondent. The said request is reasonable which
deserves to be accepted. We, therefore, direct that the
direction given to the State Government to demolish the
structure of the Respondent No.8 shall not be
implemented for a period of six months from today
subject to condition of the said Respondent filing an
undertaking in this Court within a period of four weeks
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from today stating therein that he will remove the
structure within a period of six months from today and
that he will not create any third party rights and will not
part with possession of the said structure;
(xi) On failure of the Respondent No.8 to file undertaking
within a period of four weeks from today, the protection
granted to the said Respondent shall cease to apply.
(C.V. BHADANG, J ) (A.S. OKA, J )
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