Bombay High Court
Advance Locality Management vs Mr.Sitaram Kunte, Commissioner Of ... on 23 October, 2024
Author: A. S. Gadkari
Bench: A. S. Gadkari
2024:BHC-OS:17772-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO.61 OF 2013
IN
WRIT PETITION NO.2061 OF 2012
Advance Locality Management ]
A registered association represented through ]
its Chairperson Ms. Aftab Siddiquehaving its ]
Correspondence address at B-4 Sadanand Classic, ]
33rd road Khar (West), Mumbai - 400 052. ] .....Petitioner
V/s.
1. Sitaram Kunte, present Municipal ]
Commissioner at present having its Office ]
at Mahapalika Bhavan, Mahapalika Marg, ]
Opp. C.S.T., Mumbai - 400 001. ]
2. Mr. Rajiv Kunknoor Chief Engineer DP ]
having its office at Mahapalika Bhavan, ]
Mahapalika Marg, Opp. C.S.T., ]
Mumbai - 400 001. ]
3. Mr. Vinod Chithore Deputy Chief Engineer ]
Building Proposal having its office at ]
MCGM, Head office, Fort, ]
Mumbai - 400 001. ]
4. Mr. Dattatraya Ramchandra Dixit ]
Deputy Chief Engineer (Traffic) ]
MCGM, New Stores Bldg., First Floor, ]
Near Worli Naka, Dr. E. Moses Road, ]
Mumbai 400 018. ] .....Respondents
______________________________________
Mr. Dipesh U Siroya for the Petitioner.
Mr. Chaitnya Chavan, a/w Smt. Smita Tondwalkar for the Respondent-BMC.
ASHWINI
Mr. Mahendra B. Agarwal, Deputy Chief Engineer (Traffic), present.
GAJAKOSH
Digitally signed by
ASHWINI H 1/7
GAJAKOSH
Date: 2024.10.24
15:50:26 +0530
::: Uploaded on - 24/10/2024 ::: Downloaded on - 25/10/2024 23:54:52 :::
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Mr. Harshal D. Pimpale, Assistant Engineer (Traffic), present.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 8th October 2024.
PRONOUNCED ON : 23rd October 2024.
JUDGMENT (Per : Kamal Khata, J) :
-
1) This Petition alleges willful, deliberate, intentional and blatant
violation of Orders dated 28th August, 2012 and 14th September, 2012.
Consequently, it seeks civil imprisonment of the officers concerned for
violating such Orders.
2) The above referred Orders are extracted below for ready
reference:
3) Order dated 28th August, 2012 reads as under:
"1. Rule, returnable forthwith. Heard finally by
consent of the parties.
2. The petitioner's grievance is in regard to the
road line for the 7th, 13th, 33rd Road at Khar (West).
The learned counsel for the Municipal Corporation
states that the Corporation has invited objections
regarding the road line from public at large and will
consider the objections and take appropriate action
thereon. The statement is accepted. The Corporation
shall take a decision not later than six weeks.
Rule is made absolute accordingly."
4) A modification was sought by the BMC by speaking to the
minutes of the said order. The modified order dated 14 th September, 2012.
reads as under:
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"1. Called out for speaking to the minutes of the
order dated 28th August 2012, passed by this Court.
2. Mr. A.C. Singh, the learned counsel for the
Respondent-Municipal Corporation, states that it was
erroneously stated on behalf of the Respondent-
Municipal Corporation that the Respondent-Municipal
Corporation has invited objections. In fact, the
Respondent-Municipal Corporation had not invited
objections, but proposes to invite objections. In the
circumstances, in para 2 of the aforesaid order, the
second sentence is corrected as follows :
"Instead of words "states that the
Corporation has invited objections" read the words as
"states that the Corporation proposes to invite
objections".
3. Further, in the last sentence of paragraph 2
in the aforesaid order, the time to take decision shall
be read as "six months" instead of "six weeks".
4. Further, after the second last paragraph,
insert the following sentence :
"All issues are left open"
5. Order stands corrected accordingly."
5) Thereafter, on 15th March, 2013, the BMC sought and was
granted extension of time to comply with the order dated 28 th August, 2012
read with order dated 14th September, 2012 by a period of three months.
Thus, the BMC was required to comply with the order by 15th June, 2013.
6) On 6th July, 2013 the Petitioner, we must say diligently, initiated
a contempt proceeding.
7) There is nothing on record to indicate what happened from 6 th
July, 2013 to 31st July, 2024. Neither the Petitioner moved the Court nor
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was the matter taken up in due course. However, it is abundantly clear from
the record that the BMC failed to file its reply to the contempt despite
Orders dated 31st July, 2024 and 21st August, 2024. It was only on 13th
September, 2024 that the BMC filed its affidavit and then the matter was
kept for hearing on 7th October, 2024.
8) Heard both Advocates, partially on 7 th and then on 8th October
2024.
9) The Petitioner's contend that the BMC had already decided to
widen the road line and they would only invite objections and decide within
a period of six months. Since they failed to take a decision within the period
the BMC committed contempt.
10) Mr Siroya for the Petitioner submitted that, after considering
the Affidavit in Reply of BMC that the decision of widening of road line was
dropped to tacitly support some developer/s. Thus the decision
withdrawing widening of road line smacks of malafide.
11) Mr Chavan vehemently opposes. He submits that the Reply of
Respondents Nos. 1 to 4 categorically denies any breach committed of the
Orders dated 28th August, 2012 read with order dated 14 th September,
2012. The affidavit meticulously narrates the dates and events that
transpired and the various steps taken pursuant to Orders along with
backdrop of the matter. The BMC also undertook a traffic impact evaluation
and a scientific study by traffic consultants. The BMC consulted IIT, Mumbai
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and appointed a software technology company M/s. Medulla Software
Technology Limited (Medula) to carry out traffic impact evaluation study
and computer stimulation of traffic movement of the concerned roads. A
report was submitted by Medula on 21 st October, 2013 to the Municipal
Commissioner.
12) The report is annexed to the Reply at page 166. The conclusion
is drawn after detailed study and analysis by Medula. It opined that there
was no need for widening of the road at that given point of time. The
solution to the problem was to implement clearing off on-street parking and
introduction of pedestrian sidewalks. This was accepted by the BMC. This
decision was communicated to the Petitioner by a letter dated 26 th March,
2014 by the BMC. That letter is annexed at page 233 of the reply. On 16 th
April 2014, the Deputy Chief Engineer Traffic also informed the Law Officer
about the expert agencies report and the decision of the Municipal
Commissioner.
13) After perusing the reply of the BMC we find no case of
contempt is made out. The BMC has duly taken all steps and also
communicated its decision to the Petitioner way back in April 2014. The
matter went into coma for a decade.
14) A bare perusal of the report indicates that the experts have
conducted an onsite study and given a detailed analysis for the conclusion
arrived at. Besides the Petitioners have not challenged the same for more
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than a decade. No material has been brought forward to contradict the
findings of the experts. The reasoning appears to be logical and sound
therefore, we are reluctant to interfere with the same.
15) There was certainly a delay in implementation. The BMC ought
to have sought an extension of time for implementation from the Court. The
BMC ought to have kept the Petitioner informed - that's basic courtesy that
a Public Body owes to its citizenry.
16) The Municipal Commissioner must take note of such lapses and
failures of its officers. All officers must be informed to take steps and make
extension applications if necessary prior to the expiry of the period stated in
the Court's Order and not later. As observed by us during this assignment,
lack of communication with citizens/ complainants is the root cause of most
litigation against the BMC. This must necessarily be addressed immediately
by the Municipal Commissioner.
17) The Petitioner may be right in averring that, the BMC has not
clarified why this exercise of taking an expert's opinion was taken when on
1st October, 2009 (at page 119) it had decided to widen the road. That
question does remain unanswered. However, the Petitioner's contention that
the BMC has dropped the decision to widen the road line only to favour
some developers appears to be based only on a conjecture or surmise. Now
having considered the expert's report and there being no challenge thereto,
the Petitioner's contention deserves therefore to be rejected.
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18) At least in this case, due steps have been taken by the BMC. We
find no willful, deliberate, intentional, or blatant violation of the Court's
Orders as contended by the Petitioner.
19) In view of the aforesaid, the Contempt Petition is dismissed.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
