1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL SIDE PUBLIC INTEREST LITIGATION NO.136 OF 2006 Shri Prakash Kakubhai Rangwala .. .. Petitioner Versus 1.Dinesh Laxmi Nathuram Paliwal 2.Babulal Kanaiyalal Paliwal 3.Jawant Jeevraj Kothari 4.Kisan Lungda alias Kisan Sohanlal Jain/Kothari 5.Omprakash Kisan Sohanlal Jain/Kothari .. Respondents Petitioner in person. Mr.K.R. Belosay-A Panel Counsel for State. Mr.Denzil D Mello for Respondent Nos.1 & 2. Mr.Uday Bobde i/by Ms.Monica Angre for Respondent Nos.5 & 7. ------ CORAM : SWATANTER KUMAR,C.J. & S.C. DHARMADHIKARI,J. Date of reserving the Judgment : 11 th June, 2009 Date of pronouncing the Judgment : 23 rd July, 2009 JUDGMENT: (S.C. DHARMADHIKARI,J.) 1.The Petitioner has approached this Court in person invoking this Court s jurisdiction under Article 226 of 2 the Constitution of India, praying that the Respondents be directed to demolish unauthorized constructions forthwith and to develop the reserved plot of land for public purposes only, widen the approach road which is proposed to 50 feet in the year 1963 and to remove unauthorized structures put up on 20 feet wide and more than 60 years old Nala by the private Respondents. 2.The Petitioner claims to be a social worker and prominent senior citizen. He states that the local residents as well as he personally are concerned with due and proper so also complete implementation of the provisions of the relevant Statutes. According to him, private Respondents have usurped Government and Municipal land and without any approval or permission, have carried out unauthorized constructions on an open drain / Nala. 3.The Petitioner does not dispute that he is carrying on business within the limits of village Hariyali, Vikhroli (West), Mumbai. He has alleged that since 1986 the private Respondents have encroached on the reserved plot of land. The plots were reserved for primary school, dispensary, garden and play ground. He has alleged that not only unauthorized construction on these plots was commenced and carried out but the private Respondents are asserting their right in the 3 reserved plot of lands. This is causing prejudice to the residents and although the road is proposed to the extent of 50 feet, that could not be constructed and developed. The roads are so narrow that in emergencies public utility vehicles may not be able to approach the affected persons. He submits that several complaints were made by him as well as local residents but the statutory Authorities have ignored them and their inaction has forced him to file the present Public Interest Litigation. 4.The Petitioner has made several allegations of collusion between the statutory Authorities and private Respondents. However, his main grievance appears to be that there is an encroachment on a Nala which is nearly 60 years old and such encroachment is not dealt with in accordance with law. He submits that the Nala passes through U.K. Quarry Compound and on account of the structures thereon, it is not possible to keep the Nala clean and clear, with the result there is a possibility of floods during the monsoon. This will endanger lives of the hutment and slum dwellers of Chandan Nagar. In these circumstances, he has prayed for the issuance of aforementioned directions. 5.When the Writ Petition was placed before this Court, notices were issued on 27th September 2006. Respondent 4 Nos.1 and 2 were represented by Advocates so also Respondent Nos.3 and 5 to 7. The Mumbai Municipal Corporation was represented by Advocate as well. The Respondents sought time to file their reply. From time to time when this matter was placed before the Division Bench, attention of the Authorities was invited to certain allegations and averments. The Petitioner was permitted to file his rejoinder affidavit and further affidavit. Equally, sur-rejoinders have also been filed. It appears that allegations have been made by the private Respondents against the Petitioner as well. 6.After hearing parties at some length on 15th January 2009, this Court passed the following order:- After hearing learned counsel appearing for the Respondents /Authorities and the Petitioner who appeared in person, we are of the considered view that the affidavit filed by the Corporation is inadequate in its contents. Let proper affidavit be filed in regard to reservation of the plots in question. Nala, unauthorised construction raised and cost of the nine structures constructed by the Corporation along with copy of the IOD stated to have been placed by a private Respondent in the present case and whether the Corporation had ever changed the reservation, as stated. Let this affidavit be filed within two weeks from today. 2.Stand over to 29th January, 2009. 5 7.A clarificatary affidavit was thereafter filed and at some stage, a dispute was raised with regard to existence of the Nala. The Petitioner relied upon some documents and papers, whereas the private Respondents relied upon the report of a local Commissioner appointed in previous litigation and contended that he had visited the site, prepared the report and annexed a map thereto. It is stated that the existence of a Nala is thus proved. The Court, therefore, directed the Executive Engineer (Storm Water Drains) to visit the site on 27th February 2009 and submit to the Court a report stating clearly whether there is a Nala on CTS No.4 or any part thereof and whether the map prepared by the Respondents, which is at page No.588 of the paper-book, is the correct factual description of the property at site. Accordingly, the report and the map were submitted on 2nd of March 2009. The Court was dissatisfied with the report and the map and observed that the questions raised in the order dated 26th February 2009 have not been answered. The Court was of the view that the legend of the map does not tally with the colour scheme thereof. Despite pendency of the Writ Petition for nearly three years and more, a complete and proper map of the site is not placed on record. In these circumstances, and when the attention of the Court was invited to the order of the Supreme Court in Contempt Petition No.100 of 1996 that it was directed 6 that a complete map be placed on record. In compliance therewith, an affidavit has been filed and a map is annexed thereto. 8.The Petitioner was furnished copies thereof and he filed an affidavit. When the matter was placed before us on 16th April 2009, we granted final opportunity to the Corporation and the private Respondents to file a further rejoinder to the Petitioner s affidavit of April 2009. 9.After the pleadings were complete, we have heard this matter finally with the consent of parties. The affidavit of the Corporation filed initially proceeded on the basis that the Writ Petition involves disputed questions of facts and in the limited jurisdiction of this Court, they cannot be dealt with and decided. However, it was contended that the sanctioned revised development plans of S-Ward are framed. The land bearing CTS No.5 of village Hariyali is partly reserved for public purposes such as municipal dispensary, municipal primary school and play ground. The land under reference is affected by 15.25 meters wide DP road. The land is situated in residential zone. 10.It was stated that owner of the land bearing CTS Nos.4 (Part), 5, 5/1 to 5 of village Hariyali, requested by a 7 letter dated 28th December 2005 for development permission and putting up municipal dispensary. The development permission was granted on 3rd April 2006 subject to certain terms and conditions. It was stated that if he is agreeable to the terms and conditions, then, he must take further steps inasmuch as a built up Amenity, as per the requirements of DC Regulations, should be made available to the Corporation, free of cost. It was stated that there was no requirement for a municipal primary school and hence, demand was not made. 11.With regard to the request of the Petitioner for demolition of unauthorised constructions on the reserved plots as well as on the 20 feet wide Nala, the action taken was placed on this affidavit, which was sworn by the Assistant Commissioner of S-Ward. 12.The Petitioner was also served with an affidavit affirmed by Dinesh Laxmi Nathuram Paliwal, Respondent No.1 herein, and he claimed that M/s.International Trading and Manufacturing Co., a partnership firm is the owner of the property, which is subject-matter of the instant Petition. He stated that Respondent Nos.1, 2 and 5 to 7 are the partners thereof. Alleging that the Petitioner has raised disputed questions of facts, it was pointed out that a major portion of the property 8 was declared as a slum on 23rd October 1980 and a notification in that behalf was published in the official gazette. Though the property was reserved for public purposes, no proceedings for acquisition were initiated for more than 25 years. The constructions on the property have been in existence prior to 1980 and even prior to 1962. The Petitioner complained for the first time in the year 1984 about the said constructions. It was pointed out that there is no Nala constructed or maintained by the Municipal Authorities on the property at any time nor is there any lay out plans sanctioned for providing a 20 feet wide Nala on the said property. It was pointed out that there is a 3 feet gutter which is covered in some portion by Jainson Marbles. There is no structure on the gutter. Jainson Marbles is carrying on business in marbles and has installed a Marble cutting machine. The structures on the said plot are very old and in these circumstances, the Petitioner cannot claim any relief. The plot of land is a private property and that the Respondents have rightly claimed ownership thereof. Reliance was placed upon several deeds and documents in support of the claim of ownership. Apart from that, the Petitioner s locus has been questioned. It is stated that the Petitioner is not carrying on any business. His factory is on the other side of existing 30 feet road, which is closed since 1990. Dena Bank 9 has filed a Suit against the Petitioner for recovery of its dues and the Petitioner himself is a defaulter inasmuch as his electricity supply was disconnected for non-payment of the dues. Since about 1994, the Petitioner has started making false complaints against the Respondents and other persons with a view to blackmail them and extort monies from them. There are various details provided with regard to the disputes in the partnership firm and Suits pending, the attempt by the Petitioner to intervene in the Suit so also his attempt to grab a property. This resulted in filing Suit No.1576 of 1995 against him by the owner of neighbouring property Nalinchandra Gordhandas Soparkar. It was stated that after prolonged litigation against the Petitioner, including Contempt Petition No.100 of 1996, the neighbour was successful. Reliance is placed upon certain observations in the order to that effect. Further details are with regard to the Petitioner s intention to obtain vacant possession of a property with the help of Police, which was subject-matter of Suit No.7817 of 1977 filed in the Bombay City Civil Court. It is alleged that the Petitioner is not a senior citizen and his date of birth is 24th March 1951. It is also alleged that a report was made by the City Civil Court, requesting that an action be taken against the Petitioner under the Contempt of Courts Act and subsequently, he was being found guilty of contempt 10 of certain orders. Copies of these documents are annexed at Exhibits 11 and 12 to the Affidavit filed on 19th January 2007. 13.Thus, the attempts made by the Petitioner to allegedly harass other land owners, his conduct and his alleged illegal activities have been highlighted so as to impress upon this Court the fact that this is not a Public Interest Litigation at all. There is absolutely no involvement of other residents much less residents of Surya Nagar and Chandan Nagar hutment colonies. The Petitioner s family members are also having ongoing disputes with him and proceedings are pending in several Courts. Thus, the Petitioner was termed as a blackmailer and extortionist. 14.These serious allegations have also been reiterated by Respondent No.3 in his affidavit dated 19th of January 2007. Respondent No.5 also filed a separate affidavit raising identical pleas. 15.The Bombay Municipal Corporation, however, clarified the matter further and stated that the Court Receiver s office has addressed a letter dated 17th March 2007, informing the Corporation that he has been appointed Receiver of the property bearing CTS Nos.4 (Part), 5, 5/1 to 5 of village Hariyali, Powai Road and has been 11 collecting rents from the tenements / occupants. It appears that the Petitioner in response to the Affidavit of 30th August 2007 filed by the Corporation addressed a letter to the Municipal Corporation of Greater Mumbai on 25th January 2008, seeking certain clarifications and answers. He has also addressed a letter to the Advocate for Respondent Nos.1 and 2 on 29th February 2008. The whole attempt appears to be to raise certain disputes. In such circumstances, the private Respondents filed a further Affidavit and clarified that the covering of the existing Nala was demolished on 2nd to 4th June 2007. However, residents of Chandan Nagar addressed a letter dated 4th July 2007 to the Commissioner of BMC, stating that covering on the existing Nala should not be demolished because that would pose danger to their lives and properties. In the meanwhile, Respondent No.3 sought permission for reconstruction on the Nala and a permission was granted on 15th of June 2007 to repair / reconstruct and cover the existing Nala and the reconstruction was completed on 16th of July 2007. The entire clarification is proceeding on the basis that the properties are a private land and the only fault of the private Respondents was not obtaining permission from BMC for covering the Nala, which did not admeasure 20 feet but only 5 feet in width. Thus, there is a false allegation made by the Petitioner. The conduct of the 12 Petitioner inasmuch as his objection to municipal primary school and municipal dispensary being set up was also highlighted. The Petitioner filed an affidavit and continued to highlight the aspect of encroachment on Nala and stated that it is 20 feet wide and 60 years old Nala. It is this affidavit which led to the Court seeking clarification and passing orders and directions noticed above. 16.After all affidavits were filed the Petition was placed before us. We have heard parties at length. 17.The Petitioner appearing in person was not very clear and cogent but went on highlighting the conduct of private Respondents and deliberate inaction on the part of the statutory Authorities. The private Respondents through their respective Advocates, on the other hand, in addition to questioning his locus, pointed out that there are serious factual disputes which cannot be resolved in writ jurisdiction. 18.We have given anxious consideration to these submissions. We have perused the Petition and the affidavits filed on record together with their annexures. Affidavit filed by the Executive Engineer of the BMC on 18th of March 2009, inter alia, reads thus:- 13 2.I say and submit that the dotted yellow colour line at the top marked on the plan shows the position of the existing trained nalla which is marked as `a , `b , `c , having the width of 1.5 mtrs. I say that the dotted yellow colour line at the bottom shows the position of the existing kachha open drain, having the width of 0.60 mtrs. I say that the width of the nalla at upstream side of the plot C.T.S. no.5 is 0.9 mtrs. to 1.4 mtrs. I say and submit that there is existing road of 15.25 mtrs. wide on the East side of the plot C.T.S. No.4 and C.T.S. No.5 and there is 1.20 mtrs. box drain below the road. I say that further on down stream side of the culvert there exist a kachha nalla having width of about 1.50 to 2.00 mtrs, which is abutting to C.T.S. Plot No.4B and plot no.33. 3. I say and submit that the green colour line, shown at the top of the dotted yellow colour line, marked as A1, B1, C1, D1, E1, F1 shows the proposed diversion of the existing nalla. I submit that the pink colour line shown at the bottom of the dotted yellow colour line marked as a1, a2, a3, G, shows the proposed diversion of the existing drain. However, the diversion of nalla has not been carried out on the site as yet. 4. I say and submit that it is the contention of the Petitioner that the width of the nalla on downstream of the road is 20 (6.1 mtr.). However, the said nalla is kachha nalla having width about 1.5 mtrs. to 2.00 mtrs. I say that the said nalla is unserveyed and it is not at all reflected in BRIMSTOWAD report. 14 5. I say and submit that the Petitioner was not present at the time of inspection. 19.This affidavit was filed in compliance with the order passed by this Court on 5th March 2009 and after site inspection. The Petitioner was duly served with this affidavit and he questioned the contents of this affidavit by reiterating his case set out earlier. It is apparent that he persisted with his stand that there exists a Nalla of the measurement and demarcation pointed out by him. He disputed the contents of the affidavit. Further, he relied upon certain photographs and plans. It is, in these circumstances, that we permitted the private Respondents to file their affidavit. Accordingly, they have filed an affidavit dated 18th April 2009. It is filed by Dinesh Laxmi Nathuram Paliwal, Respondent No.1 herein. 20.In paragraph 3 of this affidavit, the Deponent states thus:- 3.I say that the plan annexed by the BMC in their Affidavit, is showing the correct position and size of the nalla in yellow colour on our property. I say that the said nalla is to be shifted to the area shown in 15 blue color on plan. I say that there is no construction on the yellow portion of the nalla. I say that the Respondents No.1 and 2 will not demolish the existing nalla in yellow colour in our property, till proposed nalla in blue colour is constructed. I say that the Respondents No.1 and 2 will also not put up any construction on the proposed nalla in blue colour as and when constructed to the satisfaction of the BMC. I say that only thereafter these Respondents will demolish the existing nalla shown in yellow colour on our property. 21.Thus, the Respondents stand is that the municipal plan is true and correct. It gives the correct position and size of the Nala in that property. They stated that the said Nala is to be shifted to area shown in blue colour on the plan and they stated that there is no construction on the yellow portion of the Nala. Their statements on oath are a clear undertaking with regard to the position prevailing at site and we accept the same. Accordingly, in terms of these statements, Respondent Nos.1 and 2 shall maintain the position at site and any violation or breach of the undertaking given to this Court will result in this Court initiating appropriate proceedings against these parties. Since the Municipal Corporation has filed an 16 Affidavit of a Responsible officer regarding Location of the Nala and Annexed therewith the Relevant Documents, we have no hesitation in accepting the same. We hold that the Nala is of the measurement and size as shown in the plan referred to in the Affidavit Dated 18th March 2009. This position at site is accepted by Respondent No.1 also. 22.The Petitioner has made allegations against the private Respondents and the Authorities in his Affidavit dated 19th March 2009. These allegations have been dealt with by Respondent Nos.1 and 2. These Respondents state that the Suit is pending against the Petitioner and that is a Suit of the neighbourer who alleged that the Petitioner is interfering with his construction work (construction on plot No.33). Several orders of the City Civil Court and the Petitioner s attempts to challenge them have been highlighted. It is stated that the Petitioner has lost in the Appeal as well. 23.After giving our further serious considerations to these affidavits, we are of the view that Public Interest Litigation remedy is misused in this case. The Supreme Court has time and again clarified that private disputes and issues cannot be raised in such proceedings. Proceedings are intended to serve a public and social purpose. In the garb of raising a 17 public and social cause, parties cannot ventilate their private grievances. Time and again the Supreme Court has cautioned that this remedy should not be allowed to be abused and misused. This is not an usual and ordinary remedy. This remedy permits relaxation of the rule of locus standi in certain exceptional situations. It is not that parties can file proceedings and petitions purportedly raising public grievances and causes but in effect and substance highlighting purely private matters and disputes. This remedy is not meant for settling scores with adjacent property owners and is not a substitute for a Civil Suit as far as Asserting rights in any Immovable property. 24.From the pleadings, we find much substance in the contentions raised on behalf of the Respondents that the Petitioner is agitating his own private dispute and cause. There is no public law element involved in the matter. This is not a case where public at large has approached the Court through a socially aware citizen seeking to represent their cause. Once, we find that there is no interest of the residents of the locality and that as far as the unauthorised development and constructions are concerned, the Authorities have acted in accordance with law, then, we need not interfere in our extra-ordinary and equitable jurisdiction under Article 226 of the Constitution of India. More so, when 18 we are in agreement with the Respondents that the Petition involves serious disputed questions of facts, it is not possible to resolve private issues and more particularly with regard to correctness of the measurements and demarcations shown on the maps produced on record. If the issue is of correctness and authenticity of the maps and plans produced, then, the remedy of the Petitioner lies elsewhere. 25.For the present, accepting the statements made by Respondent Nos.1 and 2 as an undertaking given to this Court so also directing the statutory Authorities to take action against any unauthorised development or constructions so as not to obstruct the Nala as shown on the plan annexed to the Affidavit dated 18th March 2009, we dispose of this Writ Petition. 26.Accordingly, the Writ Petition is disposed of. [CHIEF JUSTICE ] [S.C. DHARMADHIKARI,J.]