Bombay High Court
Malbar Hill Citizens Forum And Anr vs The Assistant Municipal ... on 17 January, 2018
Bench: A.S. Oka
SKN / Kamble 1/26 109.06-pil--
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 109 OF 2006
1. Malabar Hill Citizens Forum Society,
a Society registered under the Societies
Registration Ac, 1860 and a Charitable
Trust registered under the Bombay
Public Trust Act, having its registered
office at 70/B, Nalanda, 62, Pedder
Road, Mumbai- 400 026.
2. Narayan Dattatraya Dandawate,
the General Manager of the first Petitioner
abovenamed, residing at Meera-Madhura
Plot No.26, Flat No.A/1, Gen. Arunkumar
Vaidya Nagar, Bandra (W), Bandra
Reclamation, Mumbai 400 050. ... Petitioners.
V/s.
1. The Assistant Municipal Commissioner,
'D' Ward, Brihan Mumbai Municipal
Corporation having its office at
Jobanputra Compound, Nana Chowk,
Grant Road (West), Mumbai 400 007.
2. The Municipal Corporation of Greater
Mumbai, a body corporate established
under the provisions of the Bombay
Municipal Corporation Act, 1888 with
its headquarters at Mahapalika Marg,
Mumbai 400 001.
3. The Municipal Commissioner,
Brihan Mumbai Municipal Corporation,
Mahapalika Marg, Fort, Mumbai 400 001.
::: Uploaded on - 14/02/2018 ::: Downloaded on - 20/05/2018 23:55:57 :::
SKN / Kamble 2/26 109.06-pil--
4. The State of Maharashtra,
through the Secretary, Urban Development
Department, Mantralaya, Mumbai 400 032.
5. The Collector of Mumbai.
With his office at Mumbai Collectorate,
Old Custom House, Near Town Hall,
Mumbai 400 001.
6. The Union of India,
Ministry of Environment and Forests,
Union of India, Pariyavaran Bhavan,
CGO Complex, Lodi Road, New Delhi.
7. The Maharashtra State Road Development
Corporation Ltd., an undertaking of the
State of Maharashtra and a Company
incorporated under the provisions of the
Companies Act, 1956 with its Registered
Office at Nepean Sea Road Barracks, Next
to Priyadarshini Park, Mumbai 400 006.
8. Maharashtra Coastal Zone Authority,
having its registered Office at
Environmental Department, Room
No.217 (Annex), Mantralaya,
Mumbai- 400 032. ... Respondents.
WITH
NOTICE OF MOTION NO. 405 OF 2017
IN
PUBLIC INTEREST LITIGATION NO. 109 OF 2006
Mumbai Municipal Corporation of
Gr. Mumbai. ... Applicant.
In the matter between:
Malabar Hill Citizens Forum Society
and another. ... Petitioners.
Versus
::: Uploaded on - 14/02/2018 ::: Downloaded on - 20/05/2018 23:55:57 :::
SKN / Kamble 3/26 109.06-pil--
The Assistant Municipal Commissioner
D Ward and others. ... Respondents
WITH
NOTICE OF MOTION NO. 329 OF 2017
IN
PUBLIC INTEREST LITIGATION NO. 109 OF 2006
Malabar Hill Citizens Forum ... Applicants/
Society and another. Petitioners.
Versus
The Assistant Municipal Commissioner
D Ward and others. ... Respondents
Mr.Darius Khambatta, Senior Advocate with Mr.Arif Doctor, Mr.Anirudh
Hariani, Mr.Pheroze Mehta, Mr.Bhojraj Bara i/b M/s.Sanjay Udeshi & Co.
for the Applicant/Petitioner in PIL/109/2017
Mr.J.Reis, Senior Advocate with Mr.A.Y. Sakhare, Senior Advocate with
Ms.Kejali H. Mastakar and Ms.Vandana Mahadik for the respondent-
MMC.
Ms.Geeta Shastri, Addl.G.P. for Respondent-State.
Mr.P.P.Chavan with Ms.Reshmarani Jethanand Nathani for Respondent
No.7 in PIL/109/06.
Mr.Y.S. Bhate i/b. Mr.Dharmesh Joshi for respondent No.6 in PIL/109/06.
Ms.Sharmila Deshmukh with Ms.Jaya Bagve for respondent No.8 in
PIL/109/2006.
CORAM : A.S.OKA AND P.N.DESHMUKH, JJ.
DATE : 16th & 17th January 2018
SKN / Kamble 4/26 109.06-pil--
ORAL JUDGMENT : (Per A.S. Oka, J.)
Our attention was invited on the earlier date i.e. on 12 th
January 2018 to the order of the Apex Court dated 8 th January 2018 in
Special Leave Petition (Civil) Diary No.39943/2017 by which a request
was made to this Court to hear and dispose of Notice of Motion
No.405/2017 within a period of ten days. When the Notice of Motion
was listed on 12th January 2018, considering the fact that arguments will
have to be canvassed in the Notice of Motion on the merits of the Public
Interest Litigation, we were of the view that even the main Public Interest
Litigation (PIL) will have to be decided along with the Notice of Motion
and, therefore, by a specific order passed on 12 th January 2018, we put
the parties to the notice that even the main PIL will be taken up for final
hearing along with Notice of Motion. The connected petition being Writ
Petition No.1706/2017 also relates to the same property. Only for the
purpose of perusal of the documents on record therein that the said writ
petition was ordered to be placed along with PIL.
2. The subject matter of the present PIL is the land which is the
subject matter of leave and licence agreements dated 4 th July 1985 and
28th February 1987 executed by and between the first respondent- the
Mumbai Municipal Corporation and the first petitioner. With a view to
appreciate the controversy, a brief reference to the terms and conditions
incorporated in both the agreements will have to be made. As can be
seen from the first agreement dated 4 th July 1985, the same is in respect
of a garden on the reclaimed land at Nepean Sea Road admeasuring about
SKN / Kamble 5/26 109.06-pil--
65,000 sq.meters (for short "the said land"). Clause-1 of the said
agreement provided that the first respondent shall allot to the licencee
(first petitioner) the said land for developing and maintaining the garden.
Clause-2 of the said agreement provided that the first petitioner shall not
fence the said garden of the height more than two/three feet and the
same shall be in accordance with the rules under the Traffic Regulations.
The licence fee/ royalty was agreed at Re.1/- It was also provided that
the first petitioner will pay the first respondent- Municipal Corporation
other charges as may be fixed by the Corporation from time to time.
Clauses- 7 and 8 of the said agreement read thus:
"7. The Licence shall be determined either by the
corporation or by LICENSEES by giving a three months
notice determining the License to the other party and on
expiration of the period of three months from service of
such notice on the other party, the license shall be deemed
to be determined. In the event of the determination of
the license or sooner termination thereof, the LICENSEES
shall at their own cost and expenses remove all the fittings
and properties belonging to the LICENSEES except the
plants, which shall be deemed to be the properties of the
Corporation to the satisfaction in all respects of the
Municipal Commissioner. In the event of the LICENSEES
failing to remove the fittings and belongings of the
LICENSEES from the said Garden, the Corporation shall be
entitled to get removed such fittings and properties at the
entire cost and expenses of the LICENSEES.
8. The LICENSEES shall not let out the Garden to any
other party without the knowledge of the Corporation and
shall not part with the possession of the said Garden or any
portion within the said Garden to any other party, the
Licence being personal for the LICENSEES only."
SKN / Kamble 6/26 109.06-pil--
Clause-13 provided that in the event of any breach of the terms and
conditions of the agreement by the first petitioner, the first respondent
will be at liberty to revoke the agreement by giving 24 hours notice. On
5th July 1985, the possession of the said land was handed over by the
Superintendent of Gardens of the first respondent to the first petitioner.
The second agreement dated 28 th February 1988 is on the same terms.
The first agreement provides for development and maintenance of a park.
The only difference is that in the second agreement it is mentioned that
the first respondent shall allot to the first petitioner the said land to
develop and maintain a park, a play ground and sports. Clauses- 4 and 5
of the second agreement are the same as the clauses- 7 and 8 of the first
leave and licence agreement.
3. By a Government Resolution dated 14th April 1980 (Exh.B to
the petition), the said land was transferred to the first respondent-
Corporation for being developed as a Maidan (ground), Garden, Green
Area and a portion for a Fire Brigade Station. The terms and conditions
on which the said land was transferred to the first respondent-
Corporation by the State Government have been set out in the Resolution.
There are other conditions incorporated in the said Government
Resolution. On the basis of the said two agreements, it is the case of the
petitioners that the first petitioner has developed a park and sports
complex. The park is known as Priyadarshini Park.
4. It is pointed out in the petition that on 6 th July 1991, the
State Government published a gazette notification stating therein that the
SKN / Kamble 7/26 109.06-pil--
first respondent- Corporation has proposed that the reservation for Post
Office and Fire Brigade Station should be shifted to the north of
Priyadarshini Park numbered as 139A and Priyadarshini Park be
numbered as 139B.
5. In this PIL, the first substantive prayer is for challenging the
impugned order dated 18th July 2005 (Exh.O to the petition). The only
other substantive prayer is for issue of a writ of mandamus directing the
second and third respondents (the Municipal Corporation) to modify the
development plan for "D" Ward for relocating the Fire Brigade Station and
the Post Office by taking recourse to section 37 of the Maharashtra
Regional and Town Planning Act, 1966.
6. In the impugned order dated 18 th July 2005, it is stated that
there were demands received from the Superintendent of Post Office to
develop the reservation of Post Office on the area admeasuring 600
sq.meters and also from the Chief Fire Brigade Officer to develop the
reservation for Fire Brigade Office. By the impugned order, the
petitioners were directed to hand over the portion of the said land
reserved for Post Office and Fire Brigade Station as per the revised
Development Plan to the Assistant Commissioner of "D" Ward within
seven days failing which legal action as per clause-4 of the agreement will
be taken. There is no dispute that clause-4 referred therein is the clause-
4 of the second agreement dated 28 th February 1987 which is on par with
clause-7 of the first leave and licence agreement which we have quoted
earlier.
SKN / Kamble 8/26 109.06-pil--
7. We may note here that on 9th March 2007, an order was
passed in the PIL restraining the Municipal Corporation from carrying out
demolition till 13th March 2007. We may also note here that though rule
was issued in PIL, there was no specific interim order passed in PIL.
Before we advert to the subsequent orders, we may note here that on 5 th
June 2017, PIL was dismissed for want of prosecution. Thereafter,
Notice of Motion (Ldg.) No.369/2017 was taken out by the petitioners for
restoration of PIL. Clause-1 of the order dated 19 th June 2017 passed on
the said Notice of Motion reads thus:
"1. Notice of motion is allowed for the reasons stated in
the affidavit in support of motion and the order of
dismissal dated 5th June, 2017 is recalled. We are
satisfied that for the sufficient reasons, the counsel
appearing on behalf of the Petitioners could not remain
present when the matter was called out on 5th June, 2017.
PIL No.109 of 2006 alongwith Notice of Motion No.154 of
2007 and Chamber Summons No.106 of 2007 are
accordingly restored to the file. Notice of motion is
accordingly disposed of in terms of prayer clause (a).
Parties are directed to maintain status-quo ante ."
(Underline supplied)
It is under the said order that PIL was restored and the parties were
directed to maintain status-quo ante. On 19 th June 2017 itself, Notice of
Motion No.329/2017 was taken out by the petitioners. In the affidavit-
in-support of the said notice of motion, it was mentioned that after the
dismissal of the petition, on 14 th June 2015, the petitioners were shocked
to find that a Fire Engine was illegally and forcibly brought inside the
Priyadarshini Park on the said land. It was alleged that it was brought
SKN / Kamble 9/26 109.06-pil--
inside the park by causing a damage to the gate of the Park and was
parked in the middle of the walking track causing hindrance to the use of
the walking track by the citizens. It was further alleged that permanent
benches fixed for senior citizens were also removed for making way for
ingress of the Fire Engine. It was alleged that branches of several trees
were hacked for ingress of the Fire Engine. It was further stated that a
canopy of bamboo and plastic was erected as a cover for the said Fire
Engine. It was also alleged that this act on the part of the Municipal
Corporation lead to public outcry and furore and, accordingly, it was
widely reported in the newspapers. Therefore, by taking out the said
Notice of Motion, the petitioners sought mandatory injunction directing
the first to third respondents to forthwith remove the Fire Engine and the
Firemen occupying Priyadarshini Park since 14 th June 2017. Notice of
Motion No.368/2017 was also taken out by PIL petitioners on 10 th July
2017 in which an allegation was that the Municipal Corporation has
breached that part of the order dated 19 th June 2017 by which the parties
were directed to maintain status-quo ante. The allegation was that the
Fire Engine was not removed notwithstanding the said order. Therefore,
various prayers were made in the said Notice of Motion including the
prayer for initiating action under the Contempt of Court Act, 1971 against
the Municipal Corporation and its officers.
8. On 3rd October 2017, on Notice of Motion No.368/2017, the
first Court passed an order directing the Municipal Corporation to file an
affidavit stating whether within Malabar Hill, an area to station a fire
engine which requires 10 sq.meter open area, is not available anywhere
else other than Priyadarshini Park. Further order was passed on 11 th
SKN / Kamble 10/26 109.06-pil--
October 2017 by the first Court by which the Maharashtra Coastal Zone
Management Authority (for short "MCZMA") was ordered to be impleaded
as a party to PIL as the case made out in PIL was that the area designated
for Fire Brigade Station is covered under CRZ-1. By the said order, the
Member Secretary of the Maharashtra State Legal Services Authority and
the Court Receiver were directed to inspect the spot and file report
indicating whether Fire Brigade Station will come in the way of users of
the park either for morning walk or otherwise. Various other directions
were also issued to the said committee of two officers. MCZMA was also
ordered to place on record as to which of the areas of the Park will attract
CRZ-1 or CRZ-2, especially, with regard to identified 5,000 sq.meters area
for Fire Brigade Station. There was a further order passed on 30 th
October 2017 by the first Court. Paragraphs- 4 to 8 of the said order read
thus:
"4. On 14th June 2017, it is stated that a Fire Engine
came to be stationed at Priyadarshani Park which obstructs
the walkers as well as joggers to make use of the walking
as well as jogging tracks. However, this was denied by the
Corporation time and again. As a matter of fact, on 3rd
October 2017, this Court directed the Respondent
Corporation to identify or file an affidavit indicating that
there is no other place available to shift the Fire Engine
from the place it is now stationed. But there is no
categorical statement to that effect till date except saying
that a place is identified in the Hanging Garden.
5. The fact remains that till the recall application is
entertained and disposed of or till further directions are
given in the matter, the parties are bound to obey the
directions of the Court dated 19th June 2017. Admittedly,
till 14th June 2017, the Fire Engine in question was not
brought to the Priyadarshani Park from Nana Chowk for
the reasons best known to the parties. The status quo ante
SKN / Kamble 11/26 109.06-pil--
would mean the Fire Engine should not be at the place
where it is now stationed at the Priyadarshani Park. It is
stated that some temporary construction is also made for
the purpose of stationing the Fire Engine which would also
come in the way of directions if it is allowed to continue
since it would violate the directions to maintain status quo
ante.
6. Since factual situation was disputed, we directed the
Member Secretary of Maharashtra Legal Services Authority
along with Court Receiver, High Court, Mumbai, to inspect
the spot and file a report. This was prior to Diwali
Vacation. Today, a report is placed after inspection along
with a rough sketch indicating the position of the Fire
Engine and how it is obstructing the existing walking track
as well as jogging track. So far as the walking track is
concerned, it is obstructing the path/track to an extent of 4
feet and so far as the jogging track is concerned, it is
obstructing to an extent of 18 feet. It is categorically
denied by the Respondent Corporation contending that
there is no such plan sanctioned for jogging and walking
tracks. The fact remains that till date, the general public
are making use of the existing walking track and also the
jogging park which cannot be doubted since the report of
the Member Secretary of Maharashtra Legal Services
Authority along with Court Receiver, High Court, Mumbai
and photographs indicate how those tracks are used till
today.
7. When the Bench remarked that the directions issued
on 19th June 2017 in respect of maintaining of status quo
ante not being complied with and when we insisted upon
complying with such directions, wisdom seems to have
prevailed on the officials of the Respondent Corporation
after spending more than one hour on submissions.
However, we note that the Respondent Corporation after
proper instructions from the Competent Authority has
come forward voluntarily to remove Fire Engine from the
place where it is now stationed and also to remove
temporary structure which is constructed for the Fire
SKN / Kamble 12/26 109.06-pil--
Engine. We make it clear that no opinion is expressed on
merits of the PIL.
8. We hope and believe that the Respondent
Corporation would remove the Fire Engine and the
temporary construction by 31st October 2017."
(Underline supplied)
On 1st November 2017, the learned senior counsel appearing for the
Municipal Corporation stated that the fire engine and the temporary
structure have been removed and the site is cleared without any
obstruction to either the walking track or the jogging track. In the light of
the statements made, the first Court directed disposal of Notice of Motion
No.368/2017 in which action for contempt was sought.
9. For the sake of completion of facts, we may note here that an
order was passed on 17th April 2017 by the Deputy Municipal
Commissioner of the said Corporation. Before the said order was passed,
on 23rd December 2016 a notice was issued by the Municipal Corporation
to the first petitioner in PIL, to hand over the plot of Priyadarshini Sports
Complex and Environmental Park within seven days. Subsequently, the
said notice was withdrawn and a fresh show-cause-notice was issued on
2nd January 2017. The parties were heard on the said notice and,
thereafter the said order dated 17th April 2017 was passed by the officer of
the Municipal Corporation. By the said order, the petitioners were
informed that the agreement between the petitioners and the Municipal
Corporation is determined and, therefore, the first petitioner was called
upon to hand over peaceful possession of the Priyadarshini Park within a
SKN / Kamble 13/26 109.06-pil--
period of three months failing which the possession will be taken by the
office of the Corporation without further notice. Thus, under the said
order, time was granted to the PIL petitioners to hand over the possession
of the Priyadarshini Park till 16 th July 2017. We may also add that in
Writ Petition No.1706/2017, there is an ad-interim relief granted which
protects the possession of the first petitioner.
10. It is in the light of this factual controversy, the submissions
canvassed across the bar are required to be considered.
11. There is a Chamber Summons bearing No.106 of 2007 was
taken out by the petitioners for amendment of the petition. The prayer in
the said Chamber Summons was for allowing challenge to be incorporated
to the notices dated 2nd and 7th March 2007. Notices were in respect of an
office, a stall and mali rooms admeasuring 20 x 50 feet, 6 x 20 feet and
10 x 20 feet respectively.
12. As stated earlier, Notice of Motion No.405/2017 has been
taken out by the Municipal Corporation for vacating the direction issued
under order dated 19th June 2017 to maintain status quo ante. Chamber
Summons No.315/2017 has been taken out by the petitioners for
incorporating a prayer for declaration that the subject land falls under
CRZ-I and hence, no fire brigade station can be constructed thereon.
Notice of Motion No.329/2017 is filed by the petitioners for removal of
fire engine and firemen occupying the Priyadarshini Park.
SKN / Kamble 14/26 109.06-pil--
13. The learned senior counsel appearing for the petitioners has
taken us through both the leave and licence agreements. He invited our
attention to the impugned order. His submission is that even assuming
that the reservation of a part of the subject land for Fire Brigade Station
and Post Office continues, the possession of the portion of the land can be
taken over only by following due process of law. He submitted that in any
event, the subject land falls in CRZ-I under the CRZ notifications and
therefore, no construction, which is required to be carried out for setting
up a Fire Brigade Station, can be carried out. He submitted that going by
the Coastal Regulation Zone Notification, 2011 (for short "CRZ
Notification of 2011"), even assuming that the said land is falling in CRZ-
III, it becomes a no development Zone and the permitted activities under
the CRZ Notification of 2011 do not include use as a Fire Brigade Station.
He invited our attention to an order passed by the first Court on 3 rd
October 2017 in Notice of Motion No.368 of 2017 by which the said
corporation was directed to file an affidavit disclosing whether within
Malabar Hill, an area to station a fire engine which requires of 10
sq.meters open area, is available any where else other than Priyadarshini
Park. He submitted that though an affidavit was filed in response to the
said order, it is not even the case that any such open area is not available
elsewhere.
14. He also invited our attention to the affidavits on record, and
in particular an affidavit of Dr.Bhagwantrao N. Patil, Director,
Environment and Member Secretary of the Maharashtra Coastal Zone
Management Authority. He submitted that interpretation sought to be put
by the said Officer in paragraph-21 may not be correct as the CRZ
SKN / Kamble 15/26 109.06-pil--
Notification of 2011 itself provides for permissible users of land falling in
CRZ-III. He submitted that adjacent to the said land, a large open land of
MSRDC (a Government of Maharashtra Undertaking) is available where a
fire station can be set up. He also invited our attention to the report of the
committee constituted under the order of the first Court dated 11 th
October 2017. He pointed out that the said committee found that the
shed erected by the Municipal Corporation for fire engine obstructs
walking track and jogging track which is being used by members of the
public for last about 30 years.
15. He invited our attention to the findings recorded on perusal
of the said report by the first Court in paragraph-6 of the order dated 30 th
October 2017. As regards the second substantive prayer, he submitted
that the State Government and/or Municipal Corporation has already
initiated proceedings for modification of the development plan for shifting
the reservation of Post Office and Fire Brigade Station.
16. The learned senior counsel representing Mumbai Municipal
Corporation submitted that when PIL was dismissed for non-prosecution
on 5th June 2017, there was no interim or ad-interim order operative and,
therefore, after dismissal of the petition, the Municipal Corporation could
have always acted upon the order impugned in PIL and set up a Fire
Station. He submitted that area of the land under leave and license
agreements is more than 65,000 sq. meters and therefore in public interest
a small portion of area out of the large area of 65,000 sq. meters can be
allotted to use for fire station or parking of fire engine. He submitted that
the Municipal Corporation is acting in public Interest. He stated that
SKN / Kamble 16/26 109.06-pil--
Municipal Corporation is not in a position to construct any super structure
or shed without permission of MCZMA. There is no prohibition in CRZ
Regulations of 2011 on parking of fire engine and, therefore, parking of
fire engine cannot be prevented even assuming that a small part of
walking track or jogging track will get affected. He invited our attention
to the terms and conditions of both the leave and licence agreements and
submitted that no interest is created in favour of the first petitioner by
both the agreements in respect of the subject land and it is not open for
the petitioners to claim any right, title or interest in the said land. He
submitted that it cannot be said that the first petitioner was put in
possession of the subject land. He submitted that as the first petitioner
was never put in possession, the Municipal Corporation can always enter
the said land and, that too, for parking of fire engine and/or for
construction of a fire brigade station which itself is in public interest. He
submitted that therefore, in PIL, an order of restoration of the status quo
ante could not have been passed as it restraints the Municipal Corporation
from parking the fire engine. He invited our attention to paragraph-5 of
the order dated 30th October 2017 passed by the first Court. He submitted
that the Municipal Corporation agreed to remove the fire engine to restore
status quo ante only till the Notice of Motion for recall of the order taken
out by the Municipal Corporation was heard and it is not an unconditional
action. It is, therefore, submitted that the action of restoration of the
status quo ante cannot be held against the Municipal Corporation, as
paragraph 5 of the said order dated 30th October 2017 makes it very clear
that till the disposal of the recall application, status quo ante will have to
be restored. He submitted that the first petitioner has no right, title or
interest in respect of the subject land and therefore, no interference is
SKN / Kamble 17/26 109.06-pil--
called for. As far as the second substantive prayer is concerned, he stated
that the Writ Court cannot issue a writ of mandamus enjoining the
Planning Authority and the State Government to amend the development
plan, therefore, no such relief can be granted.
17. We have given careful consideration to the submissions.
Firstly, it will be necessary to make a reference to the terms and conditions
of both the leave and licence agreements. We have also observed that
condition Nos.4 and 5 of the second agreement are virtually similar to
condition Nos.7 and 8 of the first agreement. Clause No.4 of the second
agreement permits determination of licence either by the Municipal
Corporation or by the first petitioner by giving three months' notice. It is
provided that on expiration of the period of three months from the service
of the notice on either party, the licence shall be deemed to be
determined. It is provided that after termination/determination of the
licence, the first petitioner will have to remove at its own cost all the
fittings and properties belonging to it except the plants. It is further
provided that on the failure of the first petitioner to remove fittings
belonging to it from the said land, the Corporation shall be entitled to get
removed such fittings and properties at the cost and expenses of the first
petitioner. Clause-8 of the first agreement and clause-5 of the second
agreement restrain the first petitioner from letting out the subject land to
any other party. It also restraints the first petitioner from parting with
possession of the said land as the licence being personal to the licencee
only. Clause-13 of the first licence agreement provided that in case of
breach of any of the terms and conditions of the agreement by the
licencee, the Municipal Corporation is at liberty to revoke the agreement
SKN / Kamble 18/26 109.06-pil--
by giving 24 hours notice. We find that a similar clause is not included in
second licence agreement of permitting termination by giving 24 hours
notice. There is also a clause in both the agreements that nothing
contained in the agreements shall be construed as conferring upon the
first petitioner any right or interest over the said land. This clause is
consistent with the fact that what was created by the said agreements was
a licence. However, on conjoint reading of various clauses especially
clauses 7 and 8 of the first agreement and clauses 4 and 5 of the second
agreement, it is apparent that the first petitioner was placed in possession
of the subject land as there is an embargo imposed restraining the first
petitioner from parting with possession thereof. Moreover, there is a
possession receipt dated 5th July 1985 under which the Superintendent of
Gardens of the said Corporation handed over the possession of the said
land to the first petitioner.
18. At this stage, it would be advantageous to look at the
impugned order/impugned communication dated 18 th July 2005. It
directs the first petitioner to hand over the portion of the land reserved for
the Post Office and the Fire Brigade Station to the Assistant Municipal
Commissioner, "D" Ward. What is important is the last paragraph of the
said order which reads thus :-
"In view of the above, you are hereby directed to hand over
the portion of land reserved for Post office, Fire Brigade
etc. as per revised Development Plan of 'D' ward peacefully
to this office within seven days, otherwise, legal action as
per Clause no.4 of above Agreement for taking over the
entire land back to Municipal Corporation will be initiated
at your risk and cost."
(Underline supplied)
SKN / Kamble 19/26 109.06-pil--
19. Thus, all that is stated in the impugned order is that on the
failure of the first petitioner to hand over the possession of the land
reserved for the Post Office and the Fire Brigade Station within a period of
7 days, a legal action as per clause-4 of the agreement will be initiated for
taking over the entire land at the cost and risk of the first petitioner.
Obviously the reference to clause-4 in the said impugned order is to the
clause-4 of the second agreement which provides for determination of the
licence by giving three months notice.
20. In this PIL, it is not necessary to go into the wider question
whether on termination or determination of the licence as provided in
clause-4 thereof, the Corporation will have to adopt procedure under
section 105B of the said Act or whether on determination, the Municipal
Corporation can straightaway enter in the subject land. That issue will
have to be dealt with while deciding Writ Petition No.1706/2017 as the
purported action of the Municipal Corporation of determination of license
is under challenge in the said writ petition. Exh.C to the said writ petition
is a copy the impugned notice dated 17th April 2017 issued by the
Superintendent of Gardens. Along with it, a copy of order singed by the
Deputy Municipal Commissioner dated 17 th April 2017 was enclosed. In
the operative part of the order, the Deputy Municipal Commissioner has
stated that he has come to the conclusion that the first petitioner has
committed breaches of various clauses of the licence agreements and,
therefore, the same are determined by the Mumbai Municipal
Corporation. However, he directed the Superintendent of Gardens to issue
notice of determination and for taking over possession of the subject land
SKN / Kamble 20/26 109.06-pil--
with immediate effect as per clause-4 which contemplates service of three
months notice for determining the licence. That is how, in the order
dated 17th April 2017, a direction has been issued to the first petitioner by
the Superintendent of the Gardens to handover peaceful possession of the
said land within three months from the date of order, failing which the
possession will be taken over by his office. Even assuming that both the
orders subject matter of challenge in the writ petition are legal and valid,
the termination of agreement could have taken effect at the highest from
16th July 2017 and that is why under the order dated 17 th April 2017 the
first petitioner in PIL was ordered to handover peaceful possession of the
subject land within three months from 17 th April 2017. The specific
contention of the learned senior counsel appearing for the Mumbai
Municipal Corporation is that after the order of dismissal of PIL on 5 th
June 2017, there was no impediment in the way for taking over the
possession of the part of land for the Fire Brigade Station and, therefore,
possession was taken over on 14th June 2017. This contention is fallacious
as even according to the case of the Municipal Corporation, the
determination of the licence was to take effect from 16 th July 2017.
Before the termination of licence, the Municipal Corporation had no
authority to enter the said land. Coming back to the impugned order in
PIL, as pointed out earlier, all that it records is that if the possession of the
land is not handed over by the first petitioner, a legal action as per clause-
4 of the agreement will be taken. What is contemplated by clause-4 is of
determination of license by giving three months' notice. That action was
eventually taken in April 2017 by the orders impugned in the other writ
petition. Even taking the stand of the Municipal Corporation, which is
reflected from the order impugned in the said writ petition, as correct, the
SKN / Kamble 21/26 109.06-pil--
termination of the licence could have taken effect on 16 th July 2017.
Therefore, looking at the matter at any angle, the action of the Municipal
Corporation of entering the subject land on 14 th June 2017 for parking of
the Fire Engine and erection of shed was completely illegal. In PIL, it is
not necessary for us to go into the legality and validity of the action of
determination which is the subject matter of challenge in the other writ
petition. Moreover, the impugned order in PIL only threatens the first
petitioner with action of determination of licence which has been taken
effective from 16th July 2017. In the order impugned in PIL, it is stated
that there is a reservation for the Post Office and the Fire Brigade Station
which is not disputed. Therefore, as far as PIL is concerned, it is not
necessary to interfere with the impugned order dated 18 th July 2005 as on
the basis of the said order, the first petitioner could not have been
dispossessed. In any event, the first petitioner is now in possession as the
Municipal Corporation has removed the shed and the Fire Engine.
Whether the first petitioner can continue in possession and whether the
action of determination of licenses is valid or not are some of the issues to
be gone into in the Writ Petition No.1706/2017. In this PIL, it is not
necessary to consider the issue as to what due process of law can be
followed for taking possession of the said land inasmuch as only threat
under the impugned order was of taking action of determination as per
clause-4.
21. Therefore, the relief which is sought by the Municipal
Corporation in Notice of Motion No.405/2017 cannot be granted
inasmuch as on the day on which the Municipal Corporation entered into
possession of the part of said land, it was not entitled to enter as the
SKN / Kamble 22/26 109.06-pil--
determination of the licence purportedly made by the Corporation, even
according to its own case, shall come into existence on 16 th July 2017. On
14th June 2017, the action taken by the Municipal Corporation was
completely illegal and perhaps that is the reason why at the time of
restoration of the writ petition, the order of restoration of status quo ante
was passed. The reason appears to be that Municipal Corporation was not
expected to take such high handed action of entering into possession of a
part of the said land even before the determination of the licence.
22. It is necessary for us to consider one more argument. The
argument is that in a PIL whether the PIL petitioners can oppose parking
of the fire engine which requires an area of 10 sq. meters. By order
dated 3rd October 2017, the first Court directed the Municipal
Corporation to file an affidavit setting out whether anywhere else in
Malabar Hill, an open area of 10 sq. meters is available where the fire
engine could be parked. There is an affidavit filed pursuant to the said
order by the Municipal Corporation. The Municipal Corporation has not
stated in the said affidavit that the area of 10 sq. meters is not available in
any other part of the Malabar Hill for parking the fire engine. The
Municipal Corporation was specifically called upon to disclose whether
such open area of 10 sq.meters was not available elsewhere at Malabar
Hill. It is not the stand taken by the Municipal Corporation in the affidavit
filed on 11th October 2017 that no such open area of 10 sq. meters is
available in any other part of the Malabar Hill. As observed earlier, there
is one more aspect, namely, that even taking the case made out by the
Municipal Corporation in the notice of termination and the order of
termination as correct, in June 2017, the Municipal Corporation could not
SKN / Kamble 23/26 109.06-pil--
have taken high handed action of entering the said land and erecting a
shed for parking a fire engine. The report submitted by the committee
appointed under order dated 11 th October 2017 is on record. The contents
of the report have been already considered. In order dated 30 th October
2017, in paragraph-6, after perusing the report the first Court has
observed that the fire engine is parked in such a manner that it was
obstructing the existing walking track and jogging track. The extent of
obstruction is also noted in the said order. As observed by the First Court,
after having carefully perused the report submitted by the Committee
consisting of the Member-Secretary of Maharashtra State Legal Services
Authority and the Court Receiver, we find no reason to doubt the contents
thereof.
23. As regards the controversy whether the said land falls within
CRZ-I or CRZ-II, it is not necessary for us to go into the said controversy
as the real issue which is involved in the other petition is whether the
action of termination of licence is right or wrong and whether Municipal
Corporation will have to adopt procedure under Section 105B of the said
Act. If the Municipal Corporation ultimately succeeds and takes
possession of the said land, it is obvious that the land can be utilized for
lawful purposes subject to the provisions of CRZ Regulations of 2011.
Therefore, the chamber summon taken out by the PIL petitioners for
incorporating a prayer for declaration that the said land is covered by
CRZ-I need not be entertained.
24. Chamber Summons No.106/2007 seeks to challenge a show
cause notice and communication dated 7 th March 2007. In the
SKN / Kamble 24/26 109.06-pil--
communication dated 07th March 2007, all that is stated is that if
unauthorized structure of office, stall and mali room are not removed
within 48 hours, recourse will be taken by the Municipal Corporation to
Section 314 of the said Act. For a limited period, there was ad-interim
relief in PIL. However, thereafter no action has been taken by the
Municipal Corporation. Obviously, before taking any action in respect of
the structures, the Municipal Corporation will have to serve a notice
provided Municipal Corporation desires to take action of demolition
during the pendency of the other petition. Therefore, it is not necessary
for us to allow the amendment in terms of the said Chamber Summons. If
notice under Section 314 of the said Act or any other provision of law is to
be served on the first petitioner, action of demolition can be taken by the
Municipal Corporation only after the expiry of the period of two weeks
from which the notice is served to the petitioner.
25. Now we turn to the second prayer which is the only
substantive prayer made in the petition wherein the petitioner seeks a writ
of mandamus enjoining the Municipal Corporation to take recourse to the
provisions of Section 37 of the MRTP Act for relocation of the reservation
for Fire Brigade Station and the Post Office. In short, a writ of mandamus
was prayed for enjoining the said respondent to amend the development
plan. This Court has held that the process of preparation and modification
of development plan partakes character of a legislative function and
therefore, a writ of mandamus as prayed cannot be issued.
26. Accordingly, we dispose of the PIL by passing the following
order:-
SKN / Kamble 25/26 109.06-pil--
ORDER
(i) In view of the subsequent action of the Mumbai
Municipal Corporation of determination of the leave and licence
agreement which is subject matter of challenge in Writ Petition
No.1706/2017, the challenge to the impugned order dated 18 th
July 2005 has become academic inasmuch as the impugned
order threatens the action of determination of licence, which
has already been taken by the Municipal Corporation. The
issue of legality and validity of the said action will have to be
naturally determined in Writ Petition No.1706/2017 which is
pending before this Court;
(ii) Prayer (b) is rejected;
(iii) However it is always open for the petitioner to
make appropriate representation to the State Government or to
the Municipal Corporation calling upon them to invoke
provisions of Section 37 of the MRTP Act;
(iv) For the reasons which are recorded, we hold that
the action of the Mumbai Municipal Corporation of entering the
subject land for parking of Fire Engine and erecting the shed
taken in June 2017 (on or about 14th June 2017) is completely
illegal inasmuch as on that day even, according to the case of
the Municipal Corporation, the leave and licence agreement
was valid and subsisting;
(v) As regards Chamber Summons No106/2007, we
make it clear that if the Municipal Corporation desires to
demolish the three structures subject matter of the said
chamber summons, the Municipal Corporation is free to issue
SKN / Kamble 26/26 109.06-pil--
notice under Section 314 of the said Act or under any other
provisions of the said Act. However, action of demolition shall
not be taken for a period of two weeks from the date on which
the notice is served to the first petitioner;
(vi) We make it clear that we have not made any
adjudication on the question whether the three structures are
lawfully constructed and whether Section 314 of the said Act
will apply. All these issues will have to be gone into by the
Mumbai Municipal Corporation;
(vii) Notice of Motion No.405 of 2017 is dismissed.
(viii) All pending chamber summonses and the notices of
motion stand disposed of subject to the above directions;
(ix) We make it clear that we have not made any
adjudication on the legality of the action of the Municipal
Corporation of determination of the leave and licence
agreements. The issue will have to be decided in the
companion writ petition;
(x) Rule issued in PIL is disposed of on the above
terms. Pending Chamber Summonses/ Notices of Motion stand
disposed of.
(P.N.DESHMUKH, J.) (A.S.OKA, J.)
