Bombay High Court
Everard Co-Operative Housing Society … vs Ajay Mehta Municipal Commissioner Mcgm … on 2 January, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:28-DB
apn 10-conpw-8-2017(G).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO.8 OF 2017
IN
WRIT PETITION NO.1434 OF 2000
WITH
NOTICE OF MOTION (L) NO.482 OF 2017
Everard Co-operative Housing ]
Society Ltd., Everard Nagar, ]
Eastern Express Highway, Sion, ]
Mumbai - 400 022. ] ... Petitioner.
V/s.
1. Ajay Mehta ]
Municipal Commissioner ]
Brihan Mumbai Municipal Corporation, ]
Mahapalika Marg, Mumbai- 400 001. ]
2. Mr. Tambi ]
Assistant Municipal Commissioner ]
Municipal Corporation for Greater ]
Mumbai "L", Ward Kurla (W). ]
3. Mr. Devidas Choudhary ]
Dy. Director (Encroachment & Removal) ]
Kurla. ]
4. The State of Maharashtra ]
Through the Collector (Encroachment & ]
Removal), Old Custom, Mumbai. ] ... Respondents/
Contemnors
WITH
ASHWINI
H WRIT PETITION (L) NO.29625 OF 2024
GAJAKOSH 1. Shivpujan Parasnath Rajak ]
Digitally signed by
ASHWINI H Room No.35, Shiv Sai Nagar, ]
GAJAKOSH
Date: 2025.01.02 K.J Somaiya Hospital Road, ]
19:53:01 +0530
Opposite Lokmanya Pan Bazar Road, ]
Behind Everard Nagar, Sion- Chunabhatti, ]
Mumbai - 400 022. ]
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2. Shivkumar Rajak ]
Room No.32, Shiv Sai Nagar, ]
K.J Somaiya Hospital Road, ]
Opposite Lokmanya Pan Bazar Road, ]
Behind Everard Nagar, ]
Sion-Chunabhatti, Mumbai 400 022. ]
3. Ramesh Baburam Jaiswal ]
S/O Baburam Arjun Jaiswal ]
Room No.38, Shiv Sai Nagar, ]
K.J Somaiya Hospital Road, ]
Opposite Lokmanya Pan Bazar Road, ]
Behind Everard Nagar, ]
Sion-Chunabhatti, Mumbai 400 022. ]
4. Krishna Shivraj Mari Mattu ]
S/O Shivraj Mari Mattu ]
Room No.24, Shiv Sai Nagar, ]
K.J Somaiya Hospital Road, ]
Opposite Lokmanya Pan Bazar Road, ]
Behind Everard Nagar, ]
Sion-Chunabhatti, Mumbai 400 022. ]
5. Sachin Donagre
S/O Vasant Hiraman Dongre ]
Room No.42, Shiv Sai Nagar, ]
K.J Somaiya Hospital Road, ]
Opposite Lokmanya Pan Bazar Road, ]
Behind Everard Nagar, ]
Sion-Chunabhatti, Mumbai 400 022. ] ...Petitioners
V/s.
1. Assistant Engineer ]
Assistant Municipal Commissioner Office ]
Municipal Corporation of Greater Mumbai ]
1st Floor, Laxmanrao Yadav market Building,]
SG Barve Marg, Ambedkar Nagar, ]
Brahmanwadi, Kurla West, ]
Mumbai - 400 070. ]
2. Assistant Municipal Commissioner ]
Assistant Municipal Commissioner Office ]
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Municipal Corporation of Greater Mumbai ]
1st Floor, Laxmanrao Yadav market Building,]
SG Barve Marg, Ambedkar Nagar, ]
Brahmanwadi, Kurla West, ]
Mumbai - 400 070. ]
3. Municipal Corporation of Greater Mumbai ]
Through its Municipal Commissioner ]
Mahapalika Bhavan, Mahapalika Marg ]
Mumbai - 400 014. ]
4. Slum Rehabilitation Authority ]
Through The Chief Executive Officer ]
Administrative Building ]
Anant Kanekar Marg ]
Bandra (E) Mumbai 400 051. ]
5. State of Maharashtra ]
Through the Secretary, ]
Department of Housing, ]
Mantralaya, Mumbai 400 001. ] ... Respondents
______________________________________
Adv. Meena H. Doshi for the Petitioner in CONPW/8/2017.
Ms. Gayatri Singh, Senior Advocate, a/w Ms. Sanjot Shirsath for the
Petitioner in WPL/29625/2024.
Mr. Anil Singh, Senior Advocate, a/w Adv. Meena Dhuri, i/by Adv. Kejal
Mastakare, i/by Adv. Komal Punjabi for Respondent-BMC.
Mr. Milind More, Addl. GP for Respondent-State in CONPW/8/2017.
Ms. Prachi Tatake, Addl. GP for Respondent-State in WPL/29625/2024.
Adv. Dhruti Kapadia for Respondent No.4-SRA in WPL/29625/2024.
_____________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 19th December 2024.
PRONOUNCED ON : 2nd January 2025.
Order (Per : Kamal Khata, J) :-
1) Our Court is increasingly inundated with cases where
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occupants of illegal structures seek to dictate terms, thereby depriving law-
abiding citizens and taxpayers of their right to an orderly and lawful state.
2) This Petition exposes how the overburdened Courts and their
leniency towards Authorities is systematically exploited and manipulated by
slumlords, in collusion with the Municipal Corporators in charge of
governance, the Brihanmumbai Municipal Corporation (BMC) and the
Police.
3) What initially appeared to be a straightforward plea, by five
purportedly eligible slum dwellers, Petitioners in Writ Petition (L) No.29125
of 2024, ("the Slum Dwellers Petition") filed on 26 th September 2024, to
prevent their displacement by the BMC, has been revealed as an attempt by
squatters and land grabbers to prolong their unlawful occupation on the set
back area of the Everard Society and a proposed DP road for over 24 years.
These five Petitioners are among fifty-two others who have illegally
constructed and occupied structures on the road adjacent to the southern
wall of Everard Society, which had filed a Petition seeking their removal.
4) The Slum Dwellers Petition was tagged along with the
contempt Petition on the plea that resolving the Petition would eliminate
the basis for contempt proceedings.
5) However, Ms. Doshi for the Petitioners Everard Society argued
that the Contempt Petition if heard first would decide whether the slum
dwellers deserve any relief. Ms. Doshi submitted that, they had filed a
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Contempt Petition concerning an Order dated 29th March 2000 in their
Petition No. 1484 of 2000 which directed maintenance of status quo with
regard to construction of toilet. This Order, finds mention in paragraph
No.5 of the Order dated 18th June 2015 which outlines the pertinent facts
and directions, forms the foundation for the matters currently before this
Court.
6) For ready reference, of the facts and direction of the entire
Order dated 18th June 2015 is reproduced hereinbelow:
". Called out for hearing. We have heard learned
counsel appearing for the Petitioner and the learned counsel
representing the first Respondent. The Additional Government
Pleader appears for the 3rd Respondent. None appears for the
second Respondent.
2. The grievance made by the Petitioner, which is a
registered Cooperative Housing Society, by filing this Petition
under Article 226 of the Constitution of India is as regards to
the construction of illegal hutments on 60 feet wide road
abutting the compound wall of the Petitioner on the southern
side. The second grievance is regarding construction of a toilet
block on the said road abutting the compound wall of the
Petitioner.
3. In paragraph 1 of the Petition, the Petitioner has
averred that at the time of construction of the first phase of
the Society buildings, the Petitioner was required to surrender
an area having width of 30 feet along with its compound wall
facing southern side of its property for construction of a 60
feet wide proposed Development Plan Road. The contention
raised in Paragraph 3 of the Petition is that after surrender of
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the said area, the Authorities of the first Respondent insisted
that the Petitioner Society should do the work of asphalting of
30 feet wide strip forming part of 60 feet wide Development
Plan Road. Reliance is placed on the sanctioned Development
Plan dated 19th May 1968 as well as the letter dated 16 th
October 1986 issued by the first Respondent Municipal
Corporation. Reliance is also placed on the Condition No.4 in
the said letter dated 16th October 1986 which reads thus:
"4. You are requested to submit the final
completion certificate from Executive
Engineer (Road Construction) Eastern
Suburbs, Executive Engineer Storm Water
Drains (Eastern Suburbs) and Executive
Engineer (Terms and Conditions) for carrying
out the work of roads, storm water drains and
street lights as per Municipal Corporation of
Greater Bombay's specification for 30' wide
D.P. Road as well as for 22" wide internal
access road"
4. In paragraph 6 of the Petition, there is a specific
averment that on the 60 feet wide road constructed abutting
the compound wall of the Petitioner-society, the illegal
hutments have come up about which a protest was lodged by
the Petitioner. In Paragraph 7 of the Petition, a specific case is
made out that on 19th March 2000, an illegal structure was
sought to be constructed on the said road near a place of
worship forming a part of the property of the Petitioner society.
Construction was sought to be made on a space where there is
an underground water tank of the Petitioner society. Therefore,
a protest was made on 19th March 2000 and 21st March 2000.
Reliance is also place on the letters dated 22nd March 2000 and
24th March 2000.
5. In Paragraph 9 of the Petition, it is alleged that
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the Police Officer in-charge of the concerned Police Station
informed the office bearers of the Petitioner society that, the
construction of a toilet abutting the compound wall of the
Petitioner is being undertaken at the behest of the second
Respondent who was at the relevant time elected Councilor of
the first Respondent Municipal Corporation. It is stated that
the cost of Rs.77,300/- for construction of the said toilet was
approved. It is alleged that a work order for the construction
of a toilet block was issued. In paragraph 10 of the Petition, it
is stated that a big hole was made outside the compound wall
and a floor of the illegal toilet was constructed. On 29 th March
2000, the learned Single Judge while issuing notice in this
Petition, directed the Respondents to maintain status quo as
regards the construction of toilet in question.
6. There is a reply filed by Shri S.B. Arjitwar, the Assistant
Engineer(on behalf of the first Respondent). In Paragraph 5 of
the reply, it is contended that the second Respondent proposed
to the ward officer of the concerned ward to construct two
seated WC blocks for the benefit of the hutment dwellers
occupying the huts on the edge of the Development Plan Road
near the compound wall of the Petitioner society. The proposal
was to construct toilet blocks by utilizing the "unforeseen grant
fund" allotted to the second Respondent. It is stated that after
due approval, it was decided to demolish two huts and
construct WC blocks in the place of the said two huts in the
larger public interests. In Paragraph 13 of the reply, it is
contended that the hutments where WC blocks are being
provided are protected under the policy of the State
Government. There is a further affidavit filed by the Secretary
of the Petitioner Society on 24 th April 2000 reiterating that all
the hutments have been illegally constructed.
7. The learned counsel appearing for the Petitioner has
invited our attention to the averments made in the Petition
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and the stand taken in the reply. Her submission is that there is
nothing placed on record by the first Respondent to show that
any policy of the State Government protects the illegal
hutments. She pointed out that in view of the order of the
status quo, further construction of toilet blocks was not carried
out. Her submission is that it is not in dispute that the
structures are illegal and have been unauthorisedly
constructed and, therefore, it is the obligation of the Municipal
Corporation to take action of demolition in accordance with
law. The learned counsel appearing for the Mumbai Municipal
Corporation states on instructions that the toilet blocks are not
in existence. However, illegal hutments are in existence. His
contention is that the hutments are not on the Development
Plan Road.
8. We have carefully considered the submissions. Some
controversy is sought to be raised as to whether the hutments
are actually on the 60 feet wide a Development Plan Road or
by the side of the said Development Plan Road.
9. It will be necessary to make a reference to the specific
averments made in Paragraph 6 of the Petition in which the
Petitioner has stated that the illegal hutments have come up on
the said 60 feet wide road along the compound wall of the
Petitioner society. It is admitted in Paragraph 8 of the reply of
the First Respondent Municipal Corporation that the hutments
are situated near the compound wall of the Petitioner society.
It is, however, contended that the hutments are in existence for
a long time. Thus, there is no specific denial of the fact that
the hutments have come up along the compound wall of the
Petitioner society. Only other contention raised as regards the
illegal hutments is that the same are protected under the
policy of the Government of Maharashtra. It is not the case of
the State Government that the land on which the hutments
have been erected is a slum area within the meaning of the
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Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971. No particulars of the alleged policy
of the State Government which allegedly protects the said
illegal hutments are placed on record. As far as the
construction of toilet blocks is concerned, the stand taken is
that on humanitarian grounds, for the benefit of the hutment
dwellers, the same are to be constructed by spending funds out
of the funds made available to the second Respondent, who
was an elected Councilor of the Municipal Corporation at the
relevant time. Thus, it follows that even according to the stand
taken by the Municipal Corporation, the hutments are illegal.
For construction of toilet blocks, there may be an approval
from a particular Municipal Officer, but it is the specific case
that the toilet blocks are constructed for the benefit of the
hutment dwellers who are residing in illegal structures.
10. It is the legal obligation of the first Respondent Municipal
Corporation to take action against the illegal hutments
irrespective of the fact whether the hutments are a part of the
proposed Development Plan Road or not. If action of
demolition is to be taken in respect of the illegal hutments, it
follows that the demolition of the toilet blocks, if in existence,
will have to be made.
11. Hence, we dispose of the Petition by passing the following
order:-
ORDER :
(a) The Rule is made absolute in terms of prayer
clauses (a), (b) and (c);
(b) We grant time of six months to the first
Respondent Municipal Corporation till 31st January
2016 to complete the demolition of illegal hutments
as well as the toilet blocks if the same are in
existence;
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(c) We make it clear that the work of demolition shall
be carried out only after following due process of law;
(d) After the work of demolition, all consequential
actions of restoring the status quo ante shall be taken
by the first Respondent Municipal Corporation;
(e) The Rule is made absolute on above terms;
(f) All concerned to act upon an authenticated copy
of this order.”
7) The prayers in the Writ Petition No. 1484 of 2000 that were
granted in the order read as follows:
“(a) Issue writ of mandamus or any other
appropriate writ, order or direction of the same nature, in
exercise of its jurisdiction under Article 226 of the
Constitution of India, to call for the records and
proceedings from the Respondents and after going into
the legality and propriety of the same, be pleased to
direct the Respondents to demolish the illegal hutments
on the 60 ft. wide road abutting the compound wall on
the south side of the Petitioner society;
(b) to take writ of mandamus or any other
appropriate writ, order or direction of the same nature, in
exercise of its jurisdiction under Article 226 of the
Constitution of India, to call for the records and
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proceedings from the Respondents and after going into
the legality and propriety of the same, be pleased to
direct the Respondents to forthwith stop any toilet block
or any other structure of any nature whatsoever coming
upon the said 60 ft. wide road abutting the compound
wall on the south side of the Petitioner society;
(c) to issue writ of mandamus or any other
appropriate writ, order or direction of the same nature, in
exercise of its jurisdiction under Article 226 of the
Constitution of India, to call for the records and
proceedings from the Respondents and after going into
the legality and propriety of the same, he pleased to
direct the Respondents to forthwith demolish the partly
constructed floor of the toilet block and also to remove
the septic tank and all other structures carried out on the
60 ft. wide road abutting the compound wall on the south
side of the Petitioner society.”
(Emphasis added)
8) Pursuant to the Order, the Respondents were granted six
months, until 31st January 2016 to complete the demolition of the illegal
hutments and toilet blocks. However, no action was taken by the
Corporation. Consequently, the Petitioner therefore addressed two
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communications on 10th March 2016, two months after the deadline and a
reminder on 9th April 2016, urging the authorities to demolish the
structures and comply with the Court’s directions.
9) On 6th May 2016, an application was made under Right to
Information Act 2005, seeking details of steps taken to comply with the
Court’s Order. After waiting patiently for 11 months beyond the deadline of
31st January 2016, the Petitioners had no choice but to initiate contempt
proceedings before the Court.
10) On 1st August 2017, this Court noted in its Order that, the
Affidavit filed by the Corporation disclosed non-compliance with the Court’s
directives. It was further recorded that the BMC sought extension of 12
months to carry out the demolition due to the upcoming Municipal
Elections. The Court categorically observed that there was willful and
deliberate breach of its Judgment and Order dated 18 th June 2015.
Consequently, a Notice under Rule 9(1) of Contempt of Court (Bombay
High Court Rules, 1994) was issued to Shri Ajit Kumar Ambi, Assistant
Commissioner, L Ward, returnable on 1 st September 2017. Subsequently, on
13th August 2024 while dealing with the Notice of Motion No. 575 or 2017,
the Court recorded that the Applicants (slum dwellers) sought intervention
in the Contempt Petition, requesting interim relief to restrain the
implementation of the judgment dated 18th June 2015. The motion was
rejected.
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apn 10-conpw-8-2017(G).doc 11) The Court observed that the unconditional apology tendered,
and reasons offered for non-compliance of its Orders before 31 st January
2016 were not genuine. Although an Affidavit had been filed on 4 th
February 2017, the BMC had failed to comply with the Court’s directives
even as of until 14 th August 2024. In these circumstances, the Court
directed that the case papers be placed before the Municipal Commissioner,
who was required to file an affidavit by 27 th August 2024. The
Commissioner was also directed to explain on affidavit the reasons for non-
compliance with the Court’s Orders within the prescribed timeline.
12) On 2nd September 2024, senior counsel Mr. Singh for the BMC,
assured the Court that the Order dated 18 th June 2015 would be fully
complied with by 7th October 2024 and that a compliance report would be
submitted by 11th October 2024.
12.1) Mr. Singh further stated that an Affidavit filed by the
Commissioner confirmed that 24 hours’ eviction notices had already been
served on the illegal occupants. However, due to the ongoing monsoon
season, evictions were deferred until 30 th September 2024. He assured the
Court that all evictions would be completed by 7 th October 2024. Accepting
these assurances, the Court listed the matter for hearing on 15 th October
2024.
13) Meanwhile, on 26th September 2024, the Petitioners
(Shivpujan Parasnath Rajak and four others) filed Writ Petition (L)
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29625/24, primarily seeking a Writ of Mandamus, to restrain the
Respondents from demolishing their structures until the BMC selected a
viable rehabilitation site in consultation with the Petitioner’s into
confidence.
14) The record reveals that the BMC once again failed to file its
compliance Affidavit by 11th October 2024 and sought additional time on
14th November 2024, 29th November 2024 and on 4th December 2024
through the senior counsel Mr. Singh, when matter was listed. As the
Affidavit of one Dhanaji Herlekar, Assistant Commissioner, ‘L’ Ward dated
17th December 2024 was served on the Petitioner (Everard Society) on 17 th
December 2024, the matter was adjourned to 19 th December 2024 with a
view to grant an opportunity to the Petitioner to respond.
15) Ms. Singh appearing for the Petitioners in the Slum Dwellers
Petition argued that the Petitioners are eligible slum dwellers and should
not be evicted unless the BMC provides an alternate relocation site other
than Anik Gaon. She emphasized that Anik Gaon, being in close proximity
to Mahul, is unsuitable due to poor air quality, as highlighted in Orders
from the Supreme Court, High Court and the National Green Tribunal
(NGT).
16) In response, Mr. Singh for the BMC submitted that, no alternate
premises were currently available apart from Anik Gaon. He further stated
that following this Court’s Order on 28th September 2024, BMC
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representatives inspected building No.9 L.U. Gadkari Marg, Anik Gaon,
Mumbai. The inspection revealed that out of 120 flats, around twenty-three
flats were occupied by Project Affected Persons (“PAP”) and the building
was in good and habitable condition. He clarified that Anik Gaon is not a
part of Mahul but is located approximately four kilometers away from
Mahul. He further contended that several individuals reside in the building
and surrounding area, and no prejudice would be caused to the Petitioners
if were temporarily relocated to Anik Gaon until a suitable alternative site
could be identified. Thus, Mr. Singh submitted that the BMC had made
every effort to comply with the Court’s Orders.
17) Ms Doshi for Everard Society summarized the case to submit
that, the Society’s land was acquired by the BMC for a 60-meter-wide road.
Upon surrender, illegal structures are erected by slumlords alongside the
compound wall. The Society complained both orally as well as in writing to
both the BMC and the Police whose fundamental duty is to prevent these in
the first instance but failed to take action of removing these illegal
structures. Instead, these structures got both water and electricity, blatantly
constructed an additional floor and exploit these structures for commercial
gains thanks to the laws that empathize with these squatters and
landgrabbers who claim to be poor slumdwellers. Ms Doshi submitted that
illegalities thrive as these squatters and landgrabbers need no permission
from any authorities, while law abiders are expected to follow all laws
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strictly and would not get an ‘Occupancy Certificate’ if they fail to comply
with any of the BMC’s strict conditions. The Society filed a Petition since the
Municipal Corporator (for wooing their vote bank) started constructing a
‘Public toilet’ (with a sewerage tank below) in March 2000 on the wall
abutting the grotto, where the Society’s members prayed. Thus, she
submitted that public funds were used for the benefit of the illegal
structures. Aggrieved with this action, the Everard Society filed Petition in
2000. Fifteen years later, on 18 th June 2015 the Court passed a detailed
Order declaring that, all these structures are illegal and granted BMC 6
months’ time upto 31st January 2016 to demolish them. Ms Doshi
contended that the BMC simply ignored the Orders for reasons best known
to them, therefore a contempt petition was filed on 10 th January 2017. In
the above circumstances since the slum dwellers had suppressed material
facts their Petition deserves to be dismissed with costs and consequently
after demolishing all structures abutting the wall including the sewerage
tank, the BMC should restore status quo ante as directed by the Court.
Reasons and Conclusions:
18) Heard all the counsel for respective parties.
19) Considering the protracted history of this case and findings of
this Court in its Order dated 18th June 2015, particularly in paragraph 9
reproduced herein above, we are unable to accept the contentions of Ms.
Gayatri Singh that, the dwellers were eligible slum dwellers.
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apn 10-conpw-8-2017(G).doc 20) The Court in its Order dated 18 th June 2015 had observed that
all these structures were illegal. Therefore, Ms. Singh’s assertion that the
slum dwellers were eligible is unfounded, as the said structures were not
declared slum area on the date of the order. Consequently, the BMC could
not have declared them ‘eligible slum dwellers’ subsequently. We are
unable to understand how these ‘illegal occupiers’ were held ‘eligible slum
dwellers’ once the Court declared them as illegal. Furthermore, the slum
dwellers have failed to annex or reference any documentary evidence to
substantiate their claim of eligibility.
21) The Petitioners, Shivpujan Rajak & Ors. present a classic case of
suppression and misrepresentation of material facts. The Petition does not
disclose how the Petitioners came into possession of the structures or
obtained water and electricity supplies since 1985. They rely on purported
rent receipts paid to the Collector for their illegal structures since 1985.
However, a close examination of the purported rent receipts annexed as
Exhibit ‘A’ ‘B’ & ‘C’ reveals that these are receipts of some payments made to
the Authorities. These receipts do not pertain to either the structure or the
land beneath them. The Petitioners also claim that the BMC declared them
eligible through notices. However, they have failed to annex any documents
to substantiate their claim. It is well established in law that payment of
taxes to an authority does not confer any rights over the landed property.
Besides these structures, being situated on the set back area of the Everard
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Society and proposed DP Road were declared illegal by the Court’s order
dated 18th June 2015. The BMC had also issued notices under section 314
of the BMC Act on 22nd December 2015 though no further action was taken.
22) In view of the above, the Slum Dwellers Petition deserves to be
dismissed for suppression of material facts and documents. We take support
from the Judgments of the Supreme Court in the following cases:
1) Hari Narain Vs. Badri Das reported in AIR 1963 SC 1558.
2) G. Narayanaswamy Reddy Vs. Govt. of Karnataka reported in
(1991) 3SCC 261 : AIR 1991 SC 1726.
3) Welcome Hotel Vs. State of A.P. reported in (1983) 4 SCC 575 :
1983 SCC (Cri) 872 : AIR 1983 SC 1015.
4) S.P. Chengalvaraya Naidu Vs. Jagannath reported in (1994)
1 SCC 1 : JT (1993) 6 SC 331.
5) Prestige Lights Ltd. Vs. SBI reported in (2007) 8 SCC 449.
6) A.V. Papayya Sastry Vs. Govt. of A.P. reported in (2007) 4 SCC
221 : AIR 2007 SC 1546.
7) Sunil Poddar Vs. Union Bank of India reported in (2008)
2 SCC 326.
8) K.D. Sharma Vs. SAIL reported in (2008) 12 SCC 481.
9) G. Jayashree Vs. Bhagwandas S. Patel reported in (2009)
3 SCC 141.
23) Subsequently, this Court by its order dated 1 st August 2017 18/32 ::: Uploaded on - 02/01/2025 ::: Downloaded on - 03/01/2025 00:28:52 ::: apn 10-conpw-8-2017(G).doc
issued notice under Rule 9(1) of Contempt of Court (Bombay High Court)
Rules 1994 to Shri Ajit Kumar Ambi, Assistant Commissioner, L Ward and
postponed the issuance of contempt notices to other officers to the next
date. The order also directed him to file a reply to the Notice of Motion (L)
No. 482 of 2017 before 18th August 2017 while fixing the hearing on 18 th
August 2017.
24) The Asst Commissioner Mr. Ambi filed an Affidavit dated 11 th
August 2017. A perusal of the same would reveal that the unconditional
apology tendered to this Court was merely on paper. He reiterated the
contents of the Affidavit dated 4 th February 2017 to support his contention
regarding the delay in implementation of the orders. Essentially, all
concerned were ascertaining if the occupiers were entitled to alternative
accommodation. Furthermore, the affidavit explained that on account of the
elections upto May 2017 and thereafter on account of monsoons he sought
an additional time of three months to comply with the order.
25) The record indicates that an Affidavit dated 25 th September
2017 was filed by the Secretary of the Everard Society. It reveals that not
only the 38 illegal hutments were not demolished but the photographs
annexed to the Notice of Motion also evinced that the toilet blocks were
constructed after the Order dated 18 th June 2015 and were in use. New
storm water drains connecting the old storm water drains were constructed.
This led to untreated sewage within the Society during the heavy rains on
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29th August 2017. There is no rebuttal to this statement made on Affidavit.
26) The record further indicates that Respondent Corporation
sought time on 1st September 2017 when the matter reached and was
granted. Thereafter, there was an Order dated 10 th December 2018
adjourning the matter to 21st January 2019 to be heard along with WP(L)
No. 3980 of 2018. No compliance Affidavit was filed by Mr. Ambi during
this period. No extension of time was sought by Mr Ambi for compliance
with Court Orders. In our view therefore, there is willful and deliberate
breach of the directions contained in the judgment and Order dated 18 th
June 2015. Mr. Ambi is guilty of disobedience of the Order of this Court.
Disobedience strikes at a very root of the “rule of law” which is the
foundation of a democratic Society and the judiciary is the institution
through which the “rule of law” is achieved. Disobedience shakes this very
foundation, and it erodes the faith and confidence reposed by the people in
the judiciary. Thus, in our view by disobeying the Orders of this Court, Mr.
Ambi has committed contempt of Court and is liable to be punished for it
under the provisions of Contempt of Courts Act.
27) The matter was then taken up on 13 August 2024. Addressing
the contempt and the Officer’s reply, the Court noted that despite an
apology, the BMC failed to comply with the Order for 7 (seven) years.
Consequently, the Court directed the Commissioner to file a detailed reply
and ensure compliance, but that Affidavit filed on 27 th August 2024,
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provided an unsatisfactory explanation for non-compliance.
28) A careful perusal of the Affidavit indicates that the Municipal
Commissioner has offered no explanation as to why the Orders dated 18 th
June 2015 and 1st August 2017 were not pointed out to this Court either on
26th November 2018 when a status quo order was passed by this Court or
even thereafter. While the Municipal Commissioner seeks to explain
procedures taken regarding the so-called eligible occupants, there is no
mention as to why no steps were taken against the illegal occupants. We
find this Affidavit misleading. Although, this borders on contempt we leave
it at that. We expect the Municipal Commissioner, the head of the BMC, to
be more cautious and responsible. We reproduce Paragraph 4 and
unnumbered paragraphs of the Affidavit of Shri Bhushan Gagrani to make
our point for ready reference:
“4. After the order dated 18.06.2015, in compliance
thereto, the following actions and steps have been taken by
the Respondents:-
(a) On 09.03.2017 Final Annexure-II was prepared by ‘L’
Ward the in respect of 52 hutment and dwellers and same was
sent for cross checking to Test Audit and Vigilance Officer
(TAVO) & Enquiry Department of BMC for scrutiny and
verification. Hereto annexed and marked as Exhibit A is a
copy of verification of the Final Annexure – II dated 21-03-
2017. Scrutiny report was received from the Enquiry Officer.
Hereto annexed and marked as Exhibit B is a copy of the
Scrutiny report. On 26-05-2017 scrutiny report was received
from Test Audit and Vigilance Officer (TAVO) stating that
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certain documents were not received and there were queries
in respect of some documents. Hereto annexed and marked as
Exhibit C is a copy of the Scrutiny report dated 26.05.2017.
On 11-08-2017 an affidavit was filed by the Asst.
Commissioner ‘L’ ward Shri. Ajit Kumar Ambi and further time
of 3 months was prayed from this Hon’ble Court for
compliance of the order dated 18.06.2015. Hereto annexed
and marked as Exhibit D is a copy of the Affidavit filed by the
Asst. Commissioner ‘L’ ward Shri, Ajit Kumar Ambi by letter
dated 19.09.2017 the (TAVO) informed the Asst.
Commissioner L Ward that the Scrutiny inspection cannot
done due to absence of staff of Enquiry Department. Hereto
annexed and marked as Exhibit E is a copy of the letter dated
19.09.2017.
(b) Scrutiny report of test Audit and Vigilance Officer
(TAVO) & Enquiry Department stated that for deciding
eligibility of the illegal hutment dwellers as per Annexure-II,
permission of the competent authority is essential. Hereto
annexed and marked as Exhibit F is a copy of Scrutiny report
of TAVO dated 05.10.2017. Accordingly, meeting was
conducted under chairmanship of Asstt. Commissioner ‘L’
ward along with Test Audit and Vigilance Officer (TAVO) and
Enquiry Department staff on 08.06.2018. Hereto annexed and
marked as Exhibit G is a copy of minutes of meeting
conducted on 08/06/2018.
(c) Thereafter, on 26.06.2018 after scrutiny of Test Audit
and Vigilance Officer (TAVO), and Enquiry Department revised
Final annexure-II, prepared by this office, the same was
submitted for sanction to DMC (Z-V) / AMC (ES), Hereto
annexed and marked as Exhibit H is a copy of revised Final
Annexure-II dated 26.06.2018. Out of 52 slum dwellers, 10
slum dwellers were declared as eligible as per Annexure-II, 4
slum dwellers were declared as un-decided due to failure to
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supply certain documents and the rest 38 illegal dwellers were
declared as non-eligible. Furthermore on 10.07.2018 approval
of AMC (ES) was received in this office on 19.07.2018. (as
mentioned in Exhibit H). dtd. 06.08.2018). Then the File was
forwarded to Asst. Commissioner, Estate Department for
finding out availability of Eligible Residential PAP. Hereto
annexed and marked as Exhibit I is a copy of letter forwarded
to the Asst. Commissioner, Estate department.
(d) On 5.10.2018 Estate department forwarded file to DMC
(Imp.) for approval of the Residential PAPs to which approval
was sought on 19.10.2018. Hereto annexed and marked as
Exhibit J is a copy of the letter by which approval was sought.
I say that on 30-10-2018, sanction was received from Asstt.
Commissioner (Estate) regarding approval of allotment of
PAPs 10 eligible dwellers of PAP and alternative
accommodation was provided at M/West ward at Eversmile
layout, Bldg. No 03, Flat no. 714 to 723, Mahul. Hereto
annexed and marked as Exhibit K is a copy of the alternative
accommodation provided at M/West ward at Eversmile layout,
Bldg. No. 03, Flat no. 714 to 723, Mahul. On 16.11.2018
Letters were issued to all 10 eligible residential structure
holders on 16.11.2018 and they were directed to attend the
lottery on 27.11.2018 at 11.00 am in ‘L’ ward office. Hereto
annexed and marked as Exhibit L is a copy of the letter dated
16.11.2018. On 24.11.2018 Final Order was issued to all 38
non eligible structure holders and they were directed to
remove their structures within 48 hrs after receipt of this
order. Hereto annexed and marked as Exhibit M is a copy of
the Final order dated 24.11.2018.
(e) By order dated 26.11.2018 structure holders at serial no.
41 Mr. Ramai Mani Kuppuswami & Ors approached this
Hon’ble Court by W.P. (L.) no 3980 of 2018. In said matter
Hon’ble High Court passed the order and directed to maintain
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the Status-quo till 10.12.2018. I say that the Writ Petition (L.)
no 3980 of 2018 is tagged along with this Writ Petition and I
am informed that it has up for hearing now. Hereto annexed
and marked as Exhibit N is a copy of the order dated
26.11.2018. The lottery process was held on 27.11.2018
wherein no one was present out of 10 eligible residential
structure holders. Moreover, again on 27.11.2018 1) Paltu
Sharma 2) Shivkumar Vaish 3) Shiv Poojan Rajak and ors
approached the Hon’ble Court by W.P. (L.) no 3967 of 2018,
W.P. (L.) no 3978 of 2018 & W.P. (L.) no 3971 of 2018
respectively. In the said matters this Hon’ble Court passed
order dated 27.11.2018 granting ad-interim reliefs to the
above Petitioners who were dissatisfied with the allotment at
Mahul, and the Corporation were given liberty to
accommodate the Petitioners at any other place except Mahul.
Hereto annexed and marked as Exhibit O is a copy of the
order dated 27.11.2018.
Thereafter, proposal was put up to Asstt. Commissioner
(Estate) vide letter dt 21.12.2018 requesting him to allot new
Residential PAP at location other than Mahul. Hereto annexed
and marked as Exhibit P is a copy of the letter dt 21.12.2018.
Thereafter, on 14.01.2019 Asstt Commissioner (Estate)
submitted the new Residential PAP proposal stating that, as
per revised policy of Estate department dtd. 09.10.2018 there
were no proper directions and guidelines regarding creating
online project in SAP system as earlier, the allotment
procedure was done offline, to which guidelines were issued
for creation of online project in SAP system.
(f) On 20.03.2020 1st Lockdown was declared by Govt of India
for COVID -19. I say that on 28.12.2021 As per guidelines
creating project on SAP system, it is necessary to upload
Aadhar details, Mobile No.s and E-mail Id in SAP system. For
the said purpose letter was issued to eligible structure holder
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Mr Bittu Sharma at serial No. 40 on 28.12.2021 and on
07.01.2022. Hereto annexed and marked as Exhibit Q is a
copy of the letter dated dt 28.12.2021 and on 07.01.2022.
(g) On 14.02.2022 after receipt of all the necessary
documents from all the 10 eligible structure holders, project
was created in SAP system and same was forwarded to DMC
(Z-V) for approval. I crave leave to refer to and rely upon the
same as and when produced. Moreover, on 07.11.2022 after
rectifying the queries raised by DMC (Z-V), again proposal
was sent for approval of DMC (Z-V) on 07.11.2022 and same
was approved by DMC (Z-V) on 25.11.2022. Hereto annexed
and marked as Exhibit R is a copy of the DC approval. In the
month of September 2023 meeting was conducted by this
office staff alongwith all eligible structure holders. During said
meeting list of available PAPs with Corporation was handed
over to eligible structure holders.
However, structure holders refused to accept the revised
PAP. Thereafter, on 17.08.2024 the Mr. R V Kargutkar, Junior
Engineer, officer of respondents personally visited all the
eligible structure holders and called them to attend ‘L’ Ward
office alongwith their identification documents on 19.08.2024
for accepting the allotment letters. On 19.08.2024, 07 out of
10 eligible structure holders were present, but they refused to
accept the offered allotment at Bldg. no. 09, CTS no. 393(pt),
393(pt) 39, 395/A, 395/Ai, Anik Gaon, L. U. Gadkari Marg,
Mumbai 400074. Hereto annexed and marked as Exhibit S is a
copy of the report prepared by the A.E. (Maint) Department in
that behalf, Further, on 20.08.2024 Letters were issued to all
10 eligible structure holders, directing to accept allotment by
22.08.2024 or else their structures would be demolished at
their risk and cost and Letters were being issued to remaining
non eligible structure holders that there structures will be
removed within 24 hrs after receipt of this letter or else their
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structures will be demolished at their risk and cost. Hereto
annexed and marked as Exhibit T are the copies of the letters
dated 20.08.2024 and Allotment letters of all the eligible
structure holders. Therefore, the said letters, were to be
pasted on the concerned structures. However, Shri. Ravindra
Gaikwad (R.E.) who was sent to paste these notices on the
concerned structures was prevented by the structure holders
from pasting the said letters on the concerned structures,
moreover as per the Govt. Circular dtd. 29-06-2021
Mentioned structures are not to be demolished during period
of monsoon from 1st June to 30th September.
I submit that the Respondents and all officers have
sincerely and earnestly tried to comply with the orders of this
Hon’ble Court and there has not been any intentional
disobedience of the orders of this Hon’ble Court by any of its
officers.
I say that the statements and facts in paragraphs nos. 1
to 4 are made on the basic of information received from the
relevant files, which I believe the same to be true. I say that
the legal submissions in paragraphs nos. 1 to 4 are made on
the basis of legal advice which I believe to be true.”
29) Evidently, the illegal occupants were protected. It was only on
4th October 2024 that 47 of the 52 structures were demolished as is evident
from paragraph 13 of the Affidavit filed on 27 th November 2024 by Shri
Dhanaji Herlekar.
30) We find force and substance in Ms Doshi’s contentions, that the
law-abiding Society members waited for 24 years for removal of the illegal
structures. No action whatsoever was taken against the slumlords who
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erected the illegal structure or the occupants, on the contrary by the BMC,
Police and Municipal Corporators went out of their way to protect them and
even set up a Public Toilet with Public Funds. BMC’s inaction, even after
Court Orders, demonstrates its complacency. It is these illegal occupants,
who now demand relocation of their choice and as per their dictate, which
cannot be accepted.
31) Weighing this case on the scales of justice, in hindsight, the
slumlord was successful in erecting the structures and giving it to these
occupants. We observe that no strict actions, that would act as a deterrent,
have been initiated against slumlords, thus are encouraged, so are the
unscrupulous elected representatives of our Society, the Officers of BMC
and the Police. This perpetuates illegalities. Then to top it, Government
comes up with schemes for rehabilitation that are freely saleable, all at the
cost of the law-abiding citizens and ratepayers. All the persons responsible
in strictly following and/or adhering to and implementing the provisions of
B.M.C. Act and the Maharashtra Regional and Town Planning Act, 1966
(MRTP Act) are not implementing it in its proper letter and spirit. Infact
they are obliging and protecting the persons acting contrary to it, by not
taking any action against them.
32) Our conclusion is that, an illegal action perpetuates even after
Court’s Orders as no action is taken against the wrongdoers, due to which
justice is evidently delayed and consequently denied. The city, already
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overwhelmed by such illegalities, can only recover through the efforts of
ethical individuals in power and strong judicial actions. The Courts though
overburdened on account of various factors should not be seen as a hapless
observer and cannot certainly be used a tool to permit and perpetuate
illegality.
33) Necessarily, the Court has to make it right. Courts must uphold
the law and punish wrongdoers and protect the law-abiding citizens.
Justice demands the removal of such illegal structures to uphold the
dignity of the law-abiding public and the rule of law.
34) Ms. Singh’s clients are not eligible. They were declared illegal
occupants on 18th June 2015 as they were under no Scheme or Policy. The
Order attained finality as was not challenged. BMC or the Municipal
Commissioner could not have taken the stand that they were eligible in any
manner and form and entertain applications to check their eligibility. If
there was any doubt, or if they were protected under any Scheme or Policy
the BMC ought to have approached the Court for clarification and
modification of the Order.
35) All these years evidently, the BMC misled the Court to believe
and consider the relocation of the so-called eligible occupants. In the garb
of so-called legal occupants, they have protected the illegal occupants for
24 years since they constructed and for 9 years even after Court Order
dated 28th June 2015. We emphasize that an illegality since inception firstly
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should not be condoned and secondly, if tolerated, certainly cannot be
perpetuated to this extent.
The Single Bench of this Court in Reverend Father, Peter Paul
Fernandes, Parish Priest and Sole Trustee of the Church of St. Francis
Xavier v. State of Maharashtra, reported in 1991 SCC OnLine Bom 92 : AIR
1991 Bom 445 at page 448 held that the demolition of the unauthorised
structure is to be undertaken by the B.M.C. and the Revenue authorities
and that it is they alone who can deal with the squatters. Slum colonies in
Bombay had their origin in acts of trespass and the private citizens
suffering could do little to get even with the wrong doers. For this reason,
demolition of unauthorised structures is the responsibility of the
Corporation or the demolition squad of the Revenue authorities. Judicial
notice can be taken of the fact that the squatters are the creations of either
slumlords or they themselves and that where the lands encroached upon
are of private parties; the latter having no remedy against the wrong doers.
This ratio is accepted by the Division Bench in the case of Solitaire Builders
and Developers vs MCGM & Ors in Contempt Petition No.90 of 2024 dated
21st November, 2024.
36) This Court in the case of Arts and Commerce College, Pen v
The State of Maharashtra & Ors. reported in 1993 SCC OnLine Bom 317
had observed about the conduct of bureaucrats. Paragraph 10 thereof reads
as under:
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". What punishment is the next question. Day in
and day out the law-abiding aggrieved persons are bringing to
the notice of the Courts the increasing instances of scant
regard to the orders of the Court, particularly by the
bureaucracy. Authority of the Court is being eroded., giving
serious blow to the very concept of rule of law. Courts do not
resort to punishment under the Contempt of Courts Act. As a
matter of course the power is used sparingly. But it appears
that wrong signals are given by that generous attitude.
Punishment is not for the Judges who have passed the
judicious impersonal order, but is for protecting those law-
abiding persons who, by compulsion and not by choice, are
driven to Courts. Offence is thus in the nature of Sui Generis
and Courts cannot continue to be mere silent spectators to
what is happening when there is a duty to act. With willful
defiance, the Court has to grapple with loofs of steel, for the
punishment is intended to have deterrent effect upon those
who are similarly inclined.”
37) The situation that prevailed in 1993 has worsened over the
period of 30 years as the slums have grown manifold. These illegal
occupants hold the law-abiding citizens to ransom. There are several such
cases that this Court dealt with. In our view, all of this has resulted as the
power of contempt was being used sparingly. This is a classic illustration as
to how law-abiding citizens staying in a Society were dragged to Court on
account of hardships caused by the illegal squatters and landgrabbers.
38) Considering the above, we pass the following orders:-
a) The Petition in Writ Petition (L) No.29625 of 2024 (Slum Dwellers
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Everard Society within a period of four weeks from today;
b) The stay Orders dated 27th November 2018 and 27th September 2024
stand vacated with immediate effect;
c) The Petitioners in Writ Petition (L) No.29625 of 2024 be vacated
immediately and the BMC is directed to demolish their structures
forthwith;
d) After the work of demolition, all consequential actions of restoring
the status quo ante shall be taken by the BMC at its own cost without
any demur to the Petitioner Society.
e) The BMC is directed to take appropriate action against the Petitioners
in furtherance of notice dated 22 nd December 2015 under section 314
of the BMC Act or any other Notices issued against the illegal
occupants that have been issued and not acted upon and if found
guilty are directed to take action against them in accordance with
law.
f) BMC is directed to expeditiously complete construction of D.P. Road
for which the strip of land of Society was acquired.
g) The Municipal Commissioner of BMC to file a compliance Affidavit
stating the outcome of the notices dated 22 nd December 2015 against
the Petitioners as well as the present Order. The Affidavit must also
state who were the others responsible for the inactions and what
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clarified that the Affidavit shall be filed by the Municipal
Commissioner himself and will not delegate his powers to any
subordinate Officer.
h) Mr. Ajit Kumar Ambi Assistant Commissioner ‘L’ ward is held guilty of
contempt of court for having disobeyed the Court Orders dated 18 th
June 2015, and 1st August 2017.
h-i) With a view to grant him an opportunity, to submit his say on the
quantum of sentence, we direct the Registrar to issue him notice to
appear before this Court on 27 th January, 2025 along with his Reply
to this Notice if any to be filed.
h-ii) The Additional Commissioner of BMC, (General Administration) is
directed to serve this Notice upon Mr. Ajitkumar Tambi, making it
returnable on 27th January, 2025.
h-iii) The Additional Commissioner of BMC, (General Administration) is
directed to personally supervise the service of notice upon Mr.
Ajitkumar Tambi.
i) All concerned to act upon the authenticated copy of this Order.
j) List the Contempt Petition on 27th January 2025 for further hearing.
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