Full Judgment Text
2008:BHC-OS:12866-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L) NO.84 OF 2008
WITH
PUBLIC INTEREST LITIGATION (L) NO.83 OF 2008
PIL (L) NO.84 OF 2008
Rajendraprasad Brijbhushan Choube )
Indian Inhabitant of Mumbai, )
Municipal Councillor of Ward No.3, )
BMC, having address at A/102, )
Windsor Co.op. Hsg.soc. Shiv Vallabh )
Road, Ashokvan, Borivali (East), )
Mumbai – 400 066. ).. Petitioner
Versus
1. The State of Maharashtra, )
Through the Principal Secretary, )
Revenue & Forests Department, )
Mantralaya, Mumbai – 400 032. )
2. P.N. Munde, )
Director & Conservatory of Forest, )
Sanjay Gandhi National Park, )
Borivali (East), Mumbai 400 066. )
3. Vishwasrao Patil, )
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Collector of Mumbai Suburban District, )
Administrative Building, )
Opp. Chetna College, Govt. Colony, )
Bandra (East), Mumbai – 400 051. )
4. B.G. Pawar, )
Additional Collector, )
Mumbai Suburban District, )
having his office at Administrative )
Building, Opp. Chetna College, )
Govt. Colony, Bandra (East), )
Mumbai – 400 051. ).. Respondents
Shri A.C. Singh for the Petitioner.
Shri D.A. Nalawade, Government Pleader for the State.
PIL (L) NO. 83 OF 2008
Ketkipada – Dharkhadi (Dahisar) )
Nagarik Seva Sangh, )
)
Through its President Mr.Ramprasad
Chimanlal Sharma, residing at )
Vidya Bhavan, Ketki Pada, Dahisar (East),)
Mumbai – 400 068. ).. Petitioners
Versus
The State of Maharashtra, )
Through the Principal Secretary, )
Revenue & Forests Department, )
Mantralaya, Mumbai – 400 032. )
2. P.N.Munde , )
Director & Conservatory of Forest, )
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Sanjay Gandhi National Park, )
Borivali (East), Mumbai 400 066. )
4. Vishwasrao Patil, )
Collector of Mumbai Suburban District, )
Administrative Building, )
Opp. Chetna College, Govt. Colony, )
Bandra (East), Mumbai – 400 051. )
4. B.G. Pawar, )
Additional Collector, )
Mumbai Suburban District, )
having his office at Administrative )
Building, Opp. Chetna College, )
Govt. Colony, Bandra (East), )
Mumbai – 400 051. ).. Respondents
Shri P.M.Havnur for the Petitioner.
Shri D.A. Nalawade, Government Pleader for the State.
CORAM : SWATANTER KUMAR, C.J. &
A.P.DESHPANDE J.
JUDGMENT RESERVED ON : 21ST AUGUST, 2008
JUDGMENT PRONOUNCED ON 29TH AUGUST,
2008
JUDGMENT: ( PER SWATANTER KUMAR, C.J.)
By this common judgment, we will dispose of these two
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public interest litigations. PIL (L) No.84 of 2008 has been filed by
one Rajendraprasad Brijbhushan Chaube, who states that he is
Municipal Councillor of Ward No.3, Mumbai, and also a member of
Improvement and Law Committee of Municipal Corporation of Greater
Mumbai. Being associated with the various organisations, the
petitioner states that he is concerned with the protection and
rehabilitation of residents and occupants of the area which is sought
to be included in the forest and/or Sanjay Gandhi Rashtriya Udyan. It
is claimed in the petition that the petitioner is filing the present Public
Interest Litigation to protect about 5000 slum dwellers residing near
Sanjay Gandhi Rashtriya Udyan and that they have been residing in
their respective structures for quite some time and have made certain
new structures. Public Interest Litigation being Writ Petition No.305 of
1995 had been filed in this Court for removing the unauthorised
structures from the forest land and the structures in furtherance of the
order of the Court are removed. According to the petitioners, as per
the policy of the Government, the slum dwellers who are occupying
the structures prior to the year 1995 are eligible for alternate
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accommodation, subject to deposit of Rs.7,000/ for their
rehabilitation. The total number of occupants are about 5000
families. By relying upon the orders of the Court passed in Public
Interest Litigation No.76 of 2007 filed by one Nirmala Samant
th st
Prabhavalkar dated 24 January, 2008 and 31 January, 2008, it is
stated that the time to deposit the amount of Rs.7,000/ was extended
by the Court and thus all these occupants, on whose behalf the
Petitioner has approached the Court, should also be permitted to
deposit the said amount and they be provided with alternate
accommodation and in the meanwhile their structures should not be
demolished.
2. According to these petitioners, these persons are also
residing much prior to the year 1950, this includes the area bearing
Survey No.345A. The respondents have issued a demolition notice
th
dated 12 August, 2008 and certain structures have been
demolished. The petitioners claim that it can be demonstrated that
Ketkipada cannot be included in forest as the structures do not fall in
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the forest area, and these structures cannot be demolished. It is
further contended that there are about 250 convenient shopping on
whose removal would cause great prejudice to the residents. The
policy of the Government being of protecting the structures from 1995
to 2000 in the case of MMRDA, MUTP and property of Airport
Authority of India, it will be discriminatory if the structures in question
are not protected. On this premise, the petitioner has prayed for a
direction to the respondents to rehabilitate the slum dwellers of
Ketkipada and Darkhadi which structures are existing prior to 2000
and situate at boundary of Sanjay Gandhi National Park. They are
not even in the forest area and as such the respondents be restrained
from demolishing the structures on these two areas without
demarcating the forest boundary and without providing them alternate
accommodation.
3. In the other Public Interest Litigation being PIL (Lodg.)
No.83 of 2008, Ketki Pada – Dharkhadi (Dahisar) Nagarik Seva
Sangh has approached the Court under Article 226 of the Constitution
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of India. Here also the petitioner, which is neither registered body
nor a legal entity in the eyes of law, claims that it has filed the Public
Interest Litigation to protect about 5500 structures which include
commercial and residential structures at the boundary of Sanjay
Gandhi National Park. In this petition also, a reference has been
made to the earlier Public Interest Litigations being Writ Petition
No.305 of 1995 and P.I.L No. 76 of 2007 and the various orders
passed by the Court from time to time. It also claims to be concerned
with the structures on Survey No.345A of Dahisar Village where the
structures are not in the forest area and in fact the said Survey
Number is about 209.25 acres on which the structures are situated,
even does not form part of the forest area. It is averred that vide
th
Notification dated 16 January, 1996 issued by Revenue and Forests
Department, the said structures fell outside the National Park and in
the boundary of Nagla Block of Sanjay Gandhi Udyan, Borivali.
According to the petitioner, the respondents have misused the
provisions of the Forest Act and their actions are illegal and
unjustifiable. It is stated that the supreme Court of India in SLP
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Nos.1812 to 1817 of 2004, has passed some orders and the said
Petitions are pending before the Supreme Court of India. The hearing
of these petitions have been expedited. The area in question not
being forest area, the petitioner prays time for payment of Rs.7,000/
in terms of the Government Policy should be permitted to deposit by
these persons. Referring to other facts similar to the one pleaded in
other petition, it is stated that the Government is not giving any
indulgence for rehabilitation of the slum dwellers and, therefore, the
Court should interfere with the matter and grant reliefs asked for.
4. Before we elaborate on the merit of the writ petition, it will
be necessary to refer to certain factual background in the present
petitions. Appa Pada Rahivashi Seva Sangh had filed the Public
Interest Litigation in the year 2004 being Writ Petition No.2025 of
2004 praying that the Respondents be directed to comply with the
orders which had been passed by this Court in Writ Petition No.305 of
1995 for protection of the forest area and in regard to reallocation of
the eligible persons whose structures/hutments are liable to be
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demolished and also that no hutments be demolished. In this writ
petition, various orders came to be passed and it came to the notice
of the Court that the order passed in the earlier petition have not been
complied with. An undertaking was given by the developers that the
entire project of rehabilitation etc. would be completed. A detailed
th
order was passed by the Court on 4 May, 2006. Noticing the total
number of tenements which required reallocation. It will be
appropriate to refer to some extracts of that order.
“2. We directed the Principal Secretary in the
Housing Department of the State to file an affidavit
explaning why the direction has not been complied
with and to set out a time schedule within which the
process of rehabilitation will be completed.
Accordingly, an affidavit has been filed by Shri N.
Rama Rao, Principal Secretary in the Housing
Department. In the affidavit, it has been stated that
several difficulties were experienced in the process of
constructing rehabilitation buildings. Once of the
issues was whether the buildings should have five or
seven storeys, and this was sorted out in September,
2005. It has also been stated that because of the
topography of the site which consists of a rocky
etrrain, the work of construction and laying of
infrastructure has taken some time. M/s.Sumer
Corporation, the developer in charge of implementing
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the project, has raised certain issues regarding the
role of Nivara Hakk Welfare Centre in the project.
The State Government has now decided that whilst the
developer will be Sumer Corporation, Nivara Hakk
Welfare Centre will be an NGO, which will assist in the
rehabilitation of the oustees from the National Park.
The Slum Rehabilitation Authority has been directed to
enforce the decision taken by the State Government.
3. The State Government has, through the
Principal Secretary in the Housing Department,
assured the Court that the following time schedule for
completing the rehabilitation of eligible persons within
the National Park, who will have to be relocated, shall
be observed.
No. of Tenements Date of availability of Tenements
th
3823 30 Sep. 2006
st
1936 31 Dec. 2006
th
3000 30 Sep. 2007
st
3310 31 Dec. 2007
4. The Court has been informed that the first
lot of 9 buildings comprising of about 3823
tenements is nearing completion and it has been
stated on behalf of the developer that the
st
anticipated date of completion is 31 July, 2006.
However, by way of abundant caution, the
rehabilitation of the first lot of 3823 families, which
st
have originally been slated to be relocated by 31
th
May, 2006, shall be done on or before 30
September, 2006.
.....................................................................
.....................................................................
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12. We are constrained to observe that there
has not been a concerted effort on the part of the
State to ensure due compliance with the directions
issued by the Division Bench of the Court. While
taking a serious note of the state of affairs, we finally
extend time on the assurance of the State
Government that everything that is required to be
done to enforce compliance with this order shall
necessarily be done within the time schedule.”
5. Thereafter, the Court granted various orders for completion
of project and ensuring that the forests are cleared at the earliest.
While stating that the orders of the Court were not being taken
nd
seriously by the concerned authority, on 22 March, 2007, the Court
passed certain stringent directions and required the government
officials to be present before the Court. The relevant directions read
thus:
“We direct the Officiating Govt.Pleader to keep the
Chief Executive Officer of the Slum Rehabilitation
Authority, the Addl.Collector – Encroachment, Bombay
Suburban District, D.C.P. of the Zone and Dr. Munde,
the Deputy Conservator of Forests, personally present
in this Court on the next date and file their aaffidavits
as to within how much time all these authorities, in
coordination with each other, will be able to clear off
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the encroachment. Needless to say, for any further
encroachment in the forest, the Chief Forest
Conservator of the range will be personally laible. We
make it clear that if these authorities fail to coordinate
on the relevant points, we will be required to summon
the Principal Secretaries of all the Departments so that
all the departments can execute the work in
coordination. S.O. To 29.3.2007 at 11.00 O'clock.”
th
6. Thereafter, by an order dated 29 March, 2007, the Court
while declining to extend the time clearly observed that Conservator
of Forests would file an affidavit in regard to the implementation of
the Scheme of Rehabilitation and specifically observed that it should
not be misconstrued that the Court has extended the time frame it
had earlier prescribed when the petition was disposed of and
subsequently extended at the instance of one party or the other. The
Coordination Committee appointed by the Government was
required to take appropriate action and to ensure that all
encroachments within Sanjay Gandhi National Park, Borivali (East),
would be removed and eligible encroachers would be rehabilitated.
This undertaking made by counsel for the State was recorded and
following order was passed:
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“14. Our order puts all concerned on notice.
Needless to say that Deputy Commissioner of Police
of the Zone concerned would make sufficient police
force available to Mr.Munde, Director of Conservator
of Forests, Sanjay Gandhi National Park, Borivali
(East), on demand, for enabling him to comply with our
order and execute the work assigned to him under the
Slum Rehabilitatation Act insofar as removal of
encroachment and rehabilitatation of eligible
encroachers are concerned.”
7. Certain further prohibitory orders were made to ensure that
no construction is raised in any area of the Park and no outsider is
permitted to raise encroachments in any part of the Sanjay Gandhi
National Park.
Various orders passed in that Writ Petition show that the
Court impressed upon the need of introduction of public accountability
by the functionaries of different departments in the State. By an order
rd
dated 3 October, 2007, the Court expressed its displeasure about
the manner in which the entire problem was being tackled in
paragraphs 11 and 12 of that order. Thereafter, again vide order
th
dated 10 January, 2008, following directions were issued by the
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Court.
“4. Having heard the learned counsel appearing
for the parties, these petitions are disposed of with the
following directions:
(i) It is conceded before us that relevant cut off
st
date for determination of eligibility is 1 January, 1995.
(ii) As the State Government has no objection to
accept the money from the persons who are eligible
but did not pay the sum of Rs.7,000/ to be covered
under the rehabilitatation scheme formulated by the
State Government, the Government would now accept
the same, if the payments are made within two weeks
from today.
(iii) If the eligible persons make the payment as
demanded by the State within two weeks from today
and satisfy the concerned authorities of their eligibility,
the State would include these persons also under the
rehabilitatation scheme and make efforts to resettle
them as per its policy.
(iv) The persons who are ineligible and are
unauthorised occupants in any part of the Sanjay
Gandhi national Park shall be removed in accordance
with law within eight weeks from today.
(v) The State authorities shall ensure that no
unauthorised activity is carried on in the entire park.
(vi) All unauthorised constructions shall be
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removed from the area of Sanjay Gandhi National
Park within eight week from today.
(vii) The authorities shall also ensure that
appropriate steps are taken for afforestation of the
forest area wherever the forests were destroyed
during the course of this long period. Resultantly
ensure that the forest area in the National Park is
restored.
(viii) The Government shall appoint appropriate
experts for this purpose and shall submit the report to
the chief Secretary, Government of Maharashtra, who
in turn shall pass appropriate directions for
compliance of the recommendations, subject to their
acceptance by the State Government.
(ix) All steps shall be taken by different agencies
of the State including the Forest Department and the
Police Department to ensure that no fresh
encroachments are made in any part of the Park and
the boundary wall of the Sanjay Gandhi National Park
is properly maintained. The Officers concerned
would be liable for violation of these conditions, in the
event any further encroachments come up on any part
of the Sanjay Gandhi National Park.
(x) The Secretary, Revenue and Forest
Department, Government of maharashtra, shall be
responsible for carrying out the directions. In the
event of any default, the Court would be compelled to
take appropriate action.
(xi) The authorities would be at liberty to conduct
a survey i.e. Spot inspection for the purpose of
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determining the removal of unauthorised
occupation/construction.”
8 . The State was called upon to file detail affidavits in regard
to the unauthorised occupants and final period by which the Park
would be cleared. The State was also directed to comply with the
directions of the Court and to ensure that the compliance is done.
9. Another Writ Petition was filed in this Court being PIL
No.76 of 2007 by Nirmala SamantPrabhavalkar & Anr. V/s. State of
Maharashtra & Ors. It was stated before the Court that with regard
to proper implementation of Rehabilitatation Scheme and for
permission to pay Rs.7,000/ be granted and their hutments should
not be demolished, this petition was filed in relation to dispossession
of about 25000 hutment dwellers in that area.
th
10. Finally, vide order dated 7 August, 2008, the High Court
directed in both the Writ Petitions No.2025 of 2004 and PIL No.76 of
2007 that the State should implement the directions of the court and
expected the authorities to comply with the directions without fail,
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atleast within a month . The parties were required to submit the
physical situation existing on the site. It may also be noticed here
that because of the pendency of some proceedings before the
Supreme Court, and there being an order of status quo passed in
Civil Appeal No.2352 of 2005 ( Sabir Siddiq Malik v. Bombay
Environmental Action Group & Ors.) the State had sought clarification
from the Bench as to whether the said order was operative in
nd
general. The Supreme Court vide its order dated 2 May, 2008
clarified the order that:
“This Court had passed a status quo order on
16.7.2007 on I.A. No.5 in C.A. No.2352/2005. The
status quo order is confined to the applicant therein
namely, Sabir Siddiq Malik.”
11. Upon such direction issued by the Supreme Court, the
Government has taken effective steps to clear forest area and to
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demolish structures unauthorisedly constructed in that area.
Furthermore, the Government has also taken effective steps to
implement rehabilitation scheme. The present writ petitions have
been filed with vague averments and without any documents to
substantiate even vague averments made in the writ petitions. The
matters have been pending for orders for months together before this
Court and it was after great difficulty that the orders of the Court were
implemented by the State to some extent. Earlier, the applicants who
were found to be eligible for alternate accommodation were granted
time to deposit the money in terms of the policy which was decided
by them and the rehabilitation scheme in force. The present
applicants firstly in no way show that they are eligible or covered
under the Policy. Even if that was to be in their favour, they had not
deposited the requisite money in terms of settled scope of the
rehabilitation scheme. If every day new application would emerge
despite the fact that the matters had been pending before this Court
since 1995 and despite continuous orders passed in different writ
petitions for clearance of the forest area, it will be difficult to
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implement the directions. In fact, the directions were also given to
the State to do the reforestation. No details of the so called 5000
slum dwellers, on whose behalf the present writ petitions have been
filed, have been given in the writ petitions. We are unable to
contribute to the view that the petitioners have come with a cause
which is really a PublIc Interest Litigation. The cause of action, if any
is personal to the slum dwellers, and they have to satisfy the
ingredients laid down under the policy of the State, to pay the money
and then they may have a right of consideration. But here
admittedly, and apparently, not only that the time prescribed under
the policy is over but even the time extended by the Court from time
to time is also over. The Court having expressed the final view in no
uncertain terms that no further extension would be granted and that
the order had taken effective view for considerable time, it will be
unfair to the other persons who claimed benefits under the Scheme
and wanted to pay the amount but had been granted no extension.
The first survey conducted had shown limited number of slum
dwellers. Now by passing of time the slum dwellers in excess of total
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number of the earlier slum dwellers are coming out before the Court
in the present form of public interest litigations, with no details, no
documents and without proper averments. The averments of the
petitioners in the petitions are in apparent contradiction to the orders.
12. For these reasons, and besides the fact that the present
Public Interest Litigations itself are not maintainable, we find no merit
in the petitions. The same are dismissed.
CHIEF JUSTICE
A.P. DESHPANDE, J
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L) NO.84 OF 2008
WITH
PUBLIC INTEREST LITIGATION (L) NO.83 OF 2008
PIL (L) NO.84 OF 2008
Rajendraprasad Brijbhushan Choube )
Indian Inhabitant of Mumbai, )
Municipal Councillor of Ward No.3, )
BMC, having address at A/102, )
Windsor Co.op. Hsg.soc. Shiv Vallabh )
Road, Ashokvan, Borivali (East), )
Mumbai – 400 066. ).. Petitioner
Versus
1. The State of Maharashtra, )
Through the Principal Secretary, )
Revenue & Forests Department, )
Mantralaya, Mumbai – 400 032. )
2. P.N. Munde, )
Director & Conservatory of Forest, )
Sanjay Gandhi National Park, )
Borivali (East), Mumbai 400 066. )
3. Vishwasrao Patil, )
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2
Collector of Mumbai Suburban District, )
Administrative Building, )
Opp. Chetna College, Govt. Colony, )
Bandra (East), Mumbai – 400 051. )
4. B.G. Pawar, )
Additional Collector, )
Mumbai Suburban District, )
having his office at Administrative )
Building, Opp. Chetna College, )
Govt. Colony, Bandra (East), )
Mumbai – 400 051. ).. Respondents
Shri A.C. Singh for the Petitioner.
Shri D.A. Nalawade, Government Pleader for the State.
PIL (L) NO. 83 OF 2008
Ketkipada – Dharkhadi (Dahisar) )
Nagarik Seva Sangh, )
)
Through its President Mr.Ramprasad
Chimanlal Sharma, residing at )
Vidya Bhavan, Ketki Pada, Dahisar (East),)
Mumbai – 400 068. ).. Petitioners
Versus
The State of Maharashtra, )
Through the Principal Secretary, )
Revenue & Forests Department, )
Mantralaya, Mumbai – 400 032. )
2. P.N.Munde , )
Director & Conservatory of Forest, )
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3
Sanjay Gandhi National Park, )
Borivali (East), Mumbai 400 066. )
4. Vishwasrao Patil, )
Collector of Mumbai Suburban District, )
Administrative Building, )
Opp. Chetna College, Govt. Colony, )
Bandra (East), Mumbai – 400 051. )
4. B.G. Pawar, )
Additional Collector, )
Mumbai Suburban District, )
having his office at Administrative )
Building, Opp. Chetna College, )
Govt. Colony, Bandra (East), )
Mumbai – 400 051. ).. Respondents
Shri P.M.Havnur for the Petitioner.
Shri D.A. Nalawade, Government Pleader for the State.
CORAM : SWATANTER KUMAR, C.J. &
A.P.DESHPANDE J.
JUDGMENT RESERVED ON : 21ST AUGUST, 2008
JUDGMENT PRONOUNCED ON 29TH AUGUST,
2008
JUDGMENT: ( PER SWATANTER KUMAR, C.J.)
By this common judgment, we will dispose of these two
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4
public interest litigations. PIL (L) No.84 of 2008 has been filed by
one Rajendraprasad Brijbhushan Chaube, who states that he is
Municipal Councillor of Ward No.3, Mumbai, and also a member of
Improvement and Law Committee of Municipal Corporation of Greater
Mumbai. Being associated with the various organisations, the
petitioner states that he is concerned with the protection and
rehabilitation of residents and occupants of the area which is sought
to be included in the forest and/or Sanjay Gandhi Rashtriya Udyan. It
is claimed in the petition that the petitioner is filing the present Public
Interest Litigation to protect about 5000 slum dwellers residing near
Sanjay Gandhi Rashtriya Udyan and that they have been residing in
their respective structures for quite some time and have made certain
new structures. Public Interest Litigation being Writ Petition No.305 of
1995 had been filed in this Court for removing the unauthorised
structures from the forest land and the structures in furtherance of the
order of the Court are removed. According to the petitioners, as per
the policy of the Government, the slum dwellers who are occupying
the structures prior to the year 1995 are eligible for alternate
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5
accommodation, subject to deposit of Rs.7,000/ for their
rehabilitation. The total number of occupants are about 5000
families. By relying upon the orders of the Court passed in Public
Interest Litigation No.76 of 2007 filed by one Nirmala Samant
th st
Prabhavalkar dated 24 January, 2008 and 31 January, 2008, it is
stated that the time to deposit the amount of Rs.7,000/ was extended
by the Court and thus all these occupants, on whose behalf the
Petitioner has approached the Court, should also be permitted to
deposit the said amount and they be provided with alternate
accommodation and in the meanwhile their structures should not be
demolished.
2. According to these petitioners, these persons are also
residing much prior to the year 1950, this includes the area bearing
Survey No.345A. The respondents have issued a demolition notice
th
dated 12 August, 2008 and certain structures have been
demolished. The petitioners claim that it can be demonstrated that
Ketkipada cannot be included in forest as the structures do not fall in
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the forest area, and these structures cannot be demolished. It is
further contended that there are about 250 convenient shopping on
whose removal would cause great prejudice to the residents. The
policy of the Government being of protecting the structures from 1995
to 2000 in the case of MMRDA, MUTP and property of Airport
Authority of India, it will be discriminatory if the structures in question
are not protected. On this premise, the petitioner has prayed for a
direction to the respondents to rehabilitate the slum dwellers of
Ketkipada and Darkhadi which structures are existing prior to 2000
and situate at boundary of Sanjay Gandhi National Park. They are
not even in the forest area and as such the respondents be restrained
from demolishing the structures on these two areas without
demarcating the forest boundary and without providing them alternate
accommodation.
3. In the other Public Interest Litigation being PIL (Lodg.)
No.83 of 2008, Ketki Pada – Dharkhadi (Dahisar) Nagarik Seva
Sangh has approached the Court under Article 226 of the Constitution
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7
of India. Here also the petitioner, which is neither registered body
nor a legal entity in the eyes of law, claims that it has filed the Public
Interest Litigation to protect about 5500 structures which include
commercial and residential structures at the boundary of Sanjay
Gandhi National Park. In this petition also, a reference has been
made to the earlier Public Interest Litigations being Writ Petition
No.305 of 1995 and P.I.L No. 76 of 2007 and the various orders
passed by the Court from time to time. It also claims to be concerned
with the structures on Survey No.345A of Dahisar Village where the
structures are not in the forest area and in fact the said Survey
Number is about 209.25 acres on which the structures are situated,
even does not form part of the forest area. It is averred that vide
th
Notification dated 16 January, 1996 issued by Revenue and Forests
Department, the said structures fell outside the National Park and in
the boundary of Nagla Block of Sanjay Gandhi Udyan, Borivali.
According to the petitioner, the respondents have misused the
provisions of the Forest Act and their actions are illegal and
unjustifiable. It is stated that the supreme Court of India in SLP
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8
Nos.1812 to 1817 of 2004, has passed some orders and the said
Petitions are pending before the Supreme Court of India. The hearing
of these petitions have been expedited. The area in question not
being forest area, the petitioner prays time for payment of Rs.7,000/
in terms of the Government Policy should be permitted to deposit by
these persons. Referring to other facts similar to the one pleaded in
other petition, it is stated that the Government is not giving any
indulgence for rehabilitation of the slum dwellers and, therefore, the
Court should interfere with the matter and grant reliefs asked for.
4. Before we elaborate on the merit of the writ petition, it will
be necessary to refer to certain factual background in the present
petitions. Appa Pada Rahivashi Seva Sangh had filed the Public
Interest Litigation in the year 2004 being Writ Petition No.2025 of
2004 praying that the Respondents be directed to comply with the
orders which had been passed by this Court in Writ Petition No.305 of
1995 for protection of the forest area and in regard to reallocation of
the eligible persons whose structures/hutments are liable to be
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9
demolished and also that no hutments be demolished. In this writ
petition, various orders came to be passed and it came to the notice
of the Court that the order passed in the earlier petition have not been
complied with. An undertaking was given by the developers that the
entire project of rehabilitation etc. would be completed. A detailed
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order was passed by the Court on 4 May, 2006. Noticing the total
number of tenements which required reallocation. It will be
appropriate to refer to some extracts of that order.
“2. We directed the Principal Secretary in the
Housing Department of the State to file an affidavit
explaning why the direction has not been complied
with and to set out a time schedule within which the
process of rehabilitation will be completed.
Accordingly, an affidavit has been filed by Shri N.
Rama Rao, Principal Secretary in the Housing
Department. In the affidavit, it has been stated that
several difficulties were experienced in the process of
constructing rehabilitation buildings. Once of the
issues was whether the buildings should have five or
seven storeys, and this was sorted out in September,
2005. It has also been stated that because of the
topography of the site which consists of a rocky
etrrain, the work of construction and laying of
infrastructure has taken some time. M/s.Sumer
Corporation, the developer in charge of implementing
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10
the project, has raised certain issues regarding the
role of Nivara Hakk Welfare Centre in the project.
The State Government has now decided that whilst the
developer will be Sumer Corporation, Nivara Hakk
Welfare Centre will be an NGO, which will assist in the
rehabilitation of the oustees from the National Park.
The Slum Rehabilitation Authority has been directed to
enforce the decision taken by the State Government.
3. The State Government has, through the
Principal Secretary in the Housing Department,
assured the Court that the following time schedule for
completing the rehabilitation of eligible persons within
the National Park, who will have to be relocated, shall
be observed.
No. of Tenements Date of availability of Tenements
th
3823 30 Sep. 2006
st
1936 31 Dec. 2006
th
3000 30 Sep. 2007
st
3310 31 Dec. 2007
4. The Court has been informed that the first
lot of 9 buildings comprising of about 3823
tenements is nearing completion and it has been
stated on behalf of the developer that the
st
anticipated date of completion is 31 July, 2006.
However, by way of abundant caution, the
rehabilitation of the first lot of 3823 families, which
st
have originally been slated to be relocated by 31
th
May, 2006, shall be done on or before 30
September, 2006.
.....................................................................
.....................................................................
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11
12. We are constrained to observe that there
has not been a concerted effort on the part of the
State to ensure due compliance with the directions
issued by the Division Bench of the Court. While
taking a serious note of the state of affairs, we finally
extend time on the assurance of the State
Government that everything that is required to be
done to enforce compliance with this order shall
necessarily be done within the time schedule.”
5. Thereafter, the Court granted various orders for completion
of project and ensuring that the forests are cleared at the earliest.
While stating that the orders of the Court were not being taken
nd
seriously by the concerned authority, on 22 March, 2007, the Court
passed certain stringent directions and required the government
officials to be present before the Court. The relevant directions read
thus:
“We direct the Officiating Govt.Pleader to keep the
Chief Executive Officer of the Slum Rehabilitation
Authority, the Addl.Collector – Encroachment, Bombay
Suburban District, D.C.P. of the Zone and Dr. Munde,
the Deputy Conservator of Forests, personally present
in this Court on the next date and file their aaffidavits
as to within how much time all these authorities, in
coordination with each other, will be able to clear off
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12
the encroachment. Needless to say, for any further
encroachment in the forest, the Chief Forest
Conservator of the range will be personally laible. We
make it clear that if these authorities fail to coordinate
on the relevant points, we will be required to summon
the Principal Secretaries of all the Departments so that
all the departments can execute the work in
coordination. S.O. To 29.3.2007 at 11.00 O'clock.”
th
6. Thereafter, by an order dated 29 March, 2007, the Court
while declining to extend the time clearly observed that Conservator
of Forests would file an affidavit in regard to the implementation of
the Scheme of Rehabilitation and specifically observed that it should
not be misconstrued that the Court has extended the time frame it
had earlier prescribed when the petition was disposed of and
subsequently extended at the instance of one party or the other. The
Coordination Committee appointed by the Government was
required to take appropriate action and to ensure that all
encroachments within Sanjay Gandhi National Park, Borivali (East),
would be removed and eligible encroachers would be rehabilitated.
This undertaking made by counsel for the State was recorded and
following order was passed:
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“14. Our order puts all concerned on notice.
Needless to say that Deputy Commissioner of Police
of the Zone concerned would make sufficient police
force available to Mr.Munde, Director of Conservator
of Forests, Sanjay Gandhi National Park, Borivali
(East), on demand, for enabling him to comply with our
order and execute the work assigned to him under the
Slum Rehabilitatation Act insofar as removal of
encroachment and rehabilitatation of eligible
encroachers are concerned.”
7. Certain further prohibitory orders were made to ensure that
no construction is raised in any area of the Park and no outsider is
permitted to raise encroachments in any part of the Sanjay Gandhi
National Park.
Various orders passed in that Writ Petition show that the
Court impressed upon the need of introduction of public accountability
by the functionaries of different departments in the State. By an order
rd
dated 3 October, 2007, the Court expressed its displeasure about
the manner in which the entire problem was being tackled in
paragraphs 11 and 12 of that order. Thereafter, again vide order
th
dated 10 January, 2008, following directions were issued by the
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14
Court.
“4. Having heard the learned counsel appearing
for the parties, these petitions are disposed of with the
following directions:
(i) It is conceded before us that relevant cut off
st
date for determination of eligibility is 1 January, 1995.
(ii) As the State Government has no objection to
accept the money from the persons who are eligible
but did not pay the sum of Rs.7,000/ to be covered
under the rehabilitatation scheme formulated by the
State Government, the Government would now accept
the same, if the payments are made within two weeks
from today.
(iii) If the eligible persons make the payment as
demanded by the State within two weeks from today
and satisfy the concerned authorities of their eligibility,
the State would include these persons also under the
rehabilitatation scheme and make efforts to resettle
them as per its policy.
(iv) The persons who are ineligible and are
unauthorised occupants in any part of the Sanjay
Gandhi national Park shall be removed in accordance
with law within eight weeks from today.
(v) The State authorities shall ensure that no
unauthorised activity is carried on in the entire park.
(vi) All unauthorised constructions shall be
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15
removed from the area of Sanjay Gandhi National
Park within eight week from today.
(vii) The authorities shall also ensure that
appropriate steps are taken for afforestation of the
forest area wherever the forests were destroyed
during the course of this long period. Resultantly
ensure that the forest area in the National Park is
restored.
(viii) The Government shall appoint appropriate
experts for this purpose and shall submit the report to
the chief Secretary, Government of Maharashtra, who
in turn shall pass appropriate directions for
compliance of the recommendations, subject to their
acceptance by the State Government.
(ix) All steps shall be taken by different agencies
of the State including the Forest Department and the
Police Department to ensure that no fresh
encroachments are made in any part of the Park and
the boundary wall of the Sanjay Gandhi National Park
is properly maintained. The Officers concerned
would be liable for violation of these conditions, in the
event any further encroachments come up on any part
of the Sanjay Gandhi National Park.
(x) The Secretary, Revenue and Forest
Department, Government of maharashtra, shall be
responsible for carrying out the directions. In the
event of any default, the Court would be compelled to
take appropriate action.
(xi) The authorities would be at liberty to conduct
a survey i.e. Spot inspection for the purpose of
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determining the removal of unauthorised
occupation/construction.”
8 . The State was called upon to file detail affidavits in regard
to the unauthorised occupants and final period by which the Park
would be cleared. The State was also directed to comply with the
directions of the Court and to ensure that the compliance is done.
9. Another Writ Petition was filed in this Court being PIL
No.76 of 2007 by Nirmala SamantPrabhavalkar & Anr. V/s. State of
Maharashtra & Ors. It was stated before the Court that with regard
to proper implementation of Rehabilitatation Scheme and for
permission to pay Rs.7,000/ be granted and their hutments should
not be demolished, this petition was filed in relation to dispossession
of about 25000 hutment dwellers in that area.
th
10. Finally, vide order dated 7 August, 2008, the High Court
directed in both the Writ Petitions No.2025 of 2004 and PIL No.76 of
2007 that the State should implement the directions of the court and
expected the authorities to comply with the directions without fail,
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atleast within a month . The parties were required to submit the
physical situation existing on the site. It may also be noticed here
that because of the pendency of some proceedings before the
Supreme Court, and there being an order of status quo passed in
Civil Appeal No.2352 of 2005 ( Sabir Siddiq Malik v. Bombay
Environmental Action Group & Ors.) the State had sought clarification
from the Bench as to whether the said order was operative in
nd
general. The Supreme Court vide its order dated 2 May, 2008
clarified the order that:
“This Court had passed a status quo order on
16.7.2007 on I.A. No.5 in C.A. No.2352/2005. The
status quo order is confined to the applicant therein
namely, Sabir Siddiq Malik.”
11. Upon such direction issued by the Supreme Court, the
Government has taken effective steps to clear forest area and to
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demolish structures unauthorisedly constructed in that area.
Furthermore, the Government has also taken effective steps to
implement rehabilitation scheme. The present writ petitions have
been filed with vague averments and without any documents to
substantiate even vague averments made in the writ petitions. The
matters have been pending for orders for months together before this
Court and it was after great difficulty that the orders of the Court were
implemented by the State to some extent. Earlier, the applicants who
were found to be eligible for alternate accommodation were granted
time to deposit the money in terms of the policy which was decided
by them and the rehabilitation scheme in force. The present
applicants firstly in no way show that they are eligible or covered
under the Policy. Even if that was to be in their favour, they had not
deposited the requisite money in terms of settled scope of the
rehabilitation scheme. If every day new application would emerge
despite the fact that the matters had been pending before this Court
since 1995 and despite continuous orders passed in different writ
petitions for clearance of the forest area, it will be difficult to
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implement the directions. In fact, the directions were also given to
the State to do the reforestation. No details of the so called 5000
slum dwellers, on whose behalf the present writ petitions have been
filed, have been given in the writ petitions. We are unable to
contribute to the view that the petitioners have come with a cause
which is really a PublIc Interest Litigation. The cause of action, if any
is personal to the slum dwellers, and they have to satisfy the
ingredients laid down under the policy of the State, to pay the money
and then they may have a right of consideration. But here
admittedly, and apparently, not only that the time prescribed under
the policy is over but even the time extended by the Court from time
to time is also over. The Court having expressed the final view in no
uncertain terms that no further extension would be granted and that
the order had taken effective view for considerable time, it will be
unfair to the other persons who claimed benefits under the Scheme
and wanted to pay the amount but had been granted no extension.
The first survey conducted had shown limited number of slum
dwellers. Now by passing of time the slum dwellers in excess of total
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number of the earlier slum dwellers are coming out before the Court
in the present form of public interest litigations, with no details, no
documents and without proper averments. The averments of the
petitioners in the petitions are in apparent contradiction to the orders.
12. For these reasons, and besides the fact that the present
Public Interest Litigations itself are not maintainable, we find no merit
in the petitions. The same are dismissed.
CHIEF JUSTICE
A.P. DESHPANDE, J
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