Shafique Ahmed Khan And Anr vs The State Of Maharashtra And Ors
2017 Latest Caselaw 8813 Bom

                                                         912.WP.10614.17.doc

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO. 10614 OF 2017

 1. Shafique Ahmed Khan, age 49 yrs,
    Adult, Indian Inhabitant of Mumbai,
    President of Masjid Madarsa
    Gulshan-E-Madina having its office at
    Shivaji Nagar, Shiravane, Jopatpatti,
    Nerul, Navi Mumbai - 400 706.

 2 Darul Uloom Ahlesunnat
   Gulshan-E-Madina,
   A Public Trust, registered under provisions
   of the Maharashtra Public Trust Act, 1958,
   under the Registration No.158 of 1998,
   Thane, having their registered office at 485,
   Shivaji Nagar, MIDC Road, Nerul,
   Navi Mumbai - 400 706.                                     ...   Petitioners
               V/s.
 1 State of Maharashtra
 2 Maharashtra Industrial 
   Development Corporation,
   A State Government undertaking, having
   Its office at Mahape, Navi Mumbai
 3 The Municipal Corporation Level
   Committee,
   constituted pursuant to the GR dated
   5.5.2011, having their offices at
   Mahape, Navi Mumbai.
 4 The Deputy Engineer,
   Special Planning Authority,
   M.I.D.C., Mahape, Navi Mumbai.                            ...   Respondents

                         
 Mr. R.D. Soni a/w Mr. Bipin J. Joshi for the Petitioners.
 Mr. S.B. Kalel, A.G.P. for the State-Respondent No.1.
 Ms.   Shyamali   Gadre   a/w   Ms.   Shamira   Naik   i/b   Little   &   Co.   for 
 Respondent Nos.2 and 4.
 Mr. Sandeep V. Morne a/w Mr. Mandar Bagkar for Respondent No.3.

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                                                             912.WP.10614.17.doc

                                     CORAM : ANOOP V. MOHTA AND
                                               MANISH PITALE, JJ.

                                     DATE    :  17th NOVEMBER, 2017.


 ORAL JUDGMENT [PER : ANOOP V. MOHTA, J.] 


 1                  Rule.   Rule is made returnable forthwith.  Heard finally 

 by consent of both the parties.  


 2                  The   Petitioners   have   challenged   Resolutions   dated 

14.06.2017 and 10.08.2017 of Respondent No.3-Municipal

Corporation Level Committee and orders dated 11.09.2017 and

18.09.2017 issued by Respondent Nos.2 and 4-MIDC respectively and

thereby directed to demolish the religious structure of the Petitioner

trust situated at Shivaji Nagar, Nerul, Navi Mumbai. The religious

but unauthorized structure is in existence since last 19 years. The

community have been carrying out various religious/ charitable

activities.

3 Admittedly, as per the Respondents record, the structure

is unauthorized. There is no application and/or proceeding initiated

to till date to regularize the same. Admittedly, the Division Bench of

this Court by its judgment dated 01.10.2016 has in Public Interest

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Litigation No.104 of 2010 issued the directions in paragraph 38 more

particularly in sub-paragraphs (d), (e) and (f) thereof, which are as

under :-

(d) We direct the State Government to issue directions to the Committees constituted under the said GR dated 5th May 2011 to undertake exercise of identifying illegal religious structures or shrines erected on all the public properties in the State. Needless to add that after identifying such illegal religious structures, the same shall be divided into two broader categories as provided in the said GR of the structures erected prior to 29th September 2009 and the structures made after 29th September 2009. As provided in the said GR, all structures erected after 29th September 2009 shall have no protection. The structures erected up to 29th September 2009 shall be divided into three categories as provided in the said GR dated 5th May 2011. Needless to add that out of these structures which will fall in the "B" category cannot be tolerated will have to be demolished; (e) We direct the State Government to complete the said exercise of identifying and categorizing the illegal religious structures including classification of various structures on the public properties till 31st March 2017;

(f) Depending upon the large number of structures identified, the State Government shall take appropriate decision fixing a reasonable outer limit for implementation in terms of the said GR dated 5 th May 2011. Such outer limit shall be fixed by issuing Government Resolution which shall be placed on record along with the compliance affidavit;

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                                                              912.WP.10614.17.doc

 4                 Recently,   the   High   Court   has   issued   directions   to   take 

steps, without further delay, to implement the order/directions so

referred above in the Public Interest Litigation. The Respondents

local authorities are under obligation to demolish after identifying

such unauthorized religious structures.

5 Based upon the judgment and the Government Circular,

Respondents, in the present fact and circumstances, have identified

the Petitioners' religious structure which is required to be demolished

pursuant to the judgment/directions referred above. This is also for

the reason that though time was provided and period was fixed, there

was no application and/or objection filed of any kind by the Petitioner

before the appropriate authority to justify and/or to support their case

that the structure in question is in exempted category or is not liable

to be demolished. As there was no such objection inspite of the public

notice given, the concerned Respondents, based upon the material

available with them and keeping in mind the admitted position on

record about the unauthorized religious structure and the directions

so issued, have taken the decision to demolish the structure, as it falls

within the ambit of the Resolutions and the judgment. The impugned

notice/action, therefore, is well within the frame work of law.

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                                                            912.WP.10614.17.doc

 6                 The submission that though they have not filed objection 

with documents within the prescribed period as per the public notice,

still the Respondents concerned, could have considered their case and

should not have passed the order; therefore, they are entitled to be

heard is unaccepted. Once the public notice is given and the period

as prescribed is over, in such matters, there is no special reason to

grant or permit the Petitioner to agitate the objection and reopen the

issue. Based on the material and the decision so taken by the

concerned Respondent authorities, pursuant to the judgment, no

contrary direction can be given, at this stage.

7 The submissions are made that the Respondents have not

properly identified the nature of structure as required to be identified,

pursuant to the judgment/Government Resolution; there was mistake

made in identifying the structure; Petitioners' structure falls within

the ambit of 'B' category and not 'C' category. These aspects cannot

be gone into at the instance of the Petitioners at this stage of the

proceedings. Respondent Nos.2 and 4 by affidavit dated 14.11.2017

have reiterated their finding and the decision in following words :-

"h. I say and submit that another meeting dated th 11 August 2017 was convened when the Committee decided that the illegal religious structure are to be

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demolished. I say and submit that the committee minutes of the meeting annexed the scrutiny report, list the name of the petitioner No.2 at serial No.2. I say and submit that the title of the column which states that the structures coming under C category are to be demolished. I say and submit that the report was an internal report to be placed before the committee. Annexed hereto and marked as Exhibit C is a copy of the minutes of the meeting dated 11 th August 2017.

(i) I say and submit that pursuant to the discussion during the meeting a final security report of the Corporation with regards to the illegal structures was forwarded by the Corporation with its letter dated 6th September 2017. Annexed hereto and marked as Exhibit D is a copy of the letter dated 6 th September 2017 alongwith its enclosure."

8 The submissions of Respondents are that there is no

deliberate mistake; and the Petitioners' structure falls within the

ambit of 'C' and not 'B' category, based upon the documents on record

of the Petitioners.

9 Those Resolutions referring to the categories and its

effect, whereby the concerned Respondents are empowered to take

action to demolish such religious unauthorized structure need no

interference. We have also taken a note of additional affidavit dated

17.11.2017 placed on record by the Respondents to justify their

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action. The following paragraphs 5 and 6, conclude the issue against

the Petitioner about the stated inadvertent error.

"5. I say and submit that I have already in paragraph 9 (h) of my earlier affidavit dated 14 th November 2017 that the internal scrutiny report placed before the Municipal Corporation level Committee lists the name of the Petitioner No.2 at serial No.2 and the title/explanation of the column clearly specifies that the structures coming under C category are to be demolished. I say and submit that due to an inadvertent error the internal scrutiny report states that illegal religious structures coming under "C" category are to be demolished and those coming under "B" category are to be rehabilitated instead of stating illegal religious structures coming under "B" category are to be demolished and those coming under "C" category are to be rehabilitated. I say that this is nothing but an inadvertent oversight and cannot in any manner be considered as discrimination towards the Petitioners.

6. I say and submit that on clear comparison of the scrutiny reports beginning from page 136 and from page 146 of my affidavit dated 14 th November 2017 all the structures which were earlier in category "C" with an explanation "to be demolished" in the title/heading of the column were correctly marked as category "B" with same explanation in the heading of the column in the scrutiny list forwarded by the Corporation vide its letter dated 6th September 2017 at page 145 of my affidavit."

10 After going through the judgment, Resolutions and the

affidavit placed on record and after hearing the learned counsel

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appearing for the parties, and for the above reasons we see that there

is no case, made out by the Petitioners to interfere with the

decision/action which according to us falls within the ambit of

provision of law and the record. The scope of writ jurisdiction is quite

limited to re-adjudicate the disputed question of facts. The finding

given and as recorded by the respondents authorities, cannot be

treated as perverse or illegal or against the law. The Writ Petition is,

therefore, dismissed. Rule is discharged with no order as to costs.

11 The learned counsel appearing for the Petitioners after

pronouncement of the judgment in open Court has submitted to stay

the demolition action based upon the impugned orders. Considering

the judgment so referred above and the impugned actions, and for the

reasons stated above, we see no case is made out to stay the

demolition of the unauthorized religious structure. The oral prayer

for stay is, therefore, rejected.

  (MANISH PITALE, J.)                          (ANOOP V. MOHTA, J.)




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