1 mss PIL+144 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL PIL NO. 144 OF 2008 Mr. ARUN NATHURAM GAIKWAD & ANR... PETITIONERS Vs. THE COMISSIONER, MUNICIPAL CORPORATION FOR GREATER BOMBAY & ORS. .. RESPONDENTS Mr. U. P. Warunjikar for the petitioners Mr. J. Reis with Ms. V. S. Gharpure for BMC Mr. V. A. Gangal with Vindu Pandey i/b A. T. Gade for R-3 Mr. Kunal Cheema for R-4. Mr. V. A. Sonpal, ‘A’ Panel Counsel for State for R-6,9 & 10. CORAM: SMT. RANJANA DESAI & RAJESH G. KETKAR, JJ. DATED : 20/4/2011 P.C.: This PIL is filed by the petitioners who are residents of Kurla, Mumbai. The basic contention of the petitioners is that respondent 3 Nawab Malik, who is a MLA from Nehru Nagar Taluka Kurla for the sake of benefit of his son’s company and respondent 5 being the Corporator of the concerned ward at Kurla for the sake of his nephew Faraz Nawab Malik have misused their official position and have expended public money and unauthorizedly developed property of Kurla Hills. 2 mss PIL+144 2. The grievances of the petitioners inter alia are that there is unwarranted widening of the road; that there is unauthorized excavation of the hilltop; that the necessary permissions for the excavation have not been taken and cutting of trees on the hilltop and slope of the hill is without permission. The old temple, which is situated in the area, is under threat of demolition. It is suggested in the petition that widening of the road is done to provide access to the plot of respondent 4 in which Malik Faraz Nawab, respondent 3 is a partner. The petitioners have prayed that the illegalities and/or irregularities committed by respondents 1 and 2 and concerned officers be enquired into and appropriate steps may be taken to redress the grievance of the petitioners. 3. On 6/8/2009 the Division Bench of this court presided over by the then Chief Justice Shri Swatanter Kumar, appointed local commissioner to visit the property in question and to report on the following points; (a) Whether it is a Hill? (b) Whether the road shown in orange colour at page 72 of the paper book ends at the property mentioned as 202? (c) Whether the road is provided as passage to each of the plots for the structures existing between the temple and plot 202? 3 mss PIL+144 (d)Lastly it shall also report as to whether any widening of the road would result in demolition of the temple and/or the boundary wall of the temple, shown as plot-9 in the map. 4. Mr. N. R. Bubna, Advocate was appointed as local commissioner. The Commissioner visited the property and has submitted a detailed report along with the photographs. Mr. Warunjikar, learned counsel for the petitioners submitted that objection of the petitioners is only to clause (b). It has been answered by the commissioner with the help of photographs which are at Nos. 3 and 4. The commissioner has stated that it appears on ocular inspection that road shown in orange colour goes upto adjacent CTS No. 207/1 to 5 and 203 beyond CTS 202. We have carefully perused the map which is annexed to the petition and, we have also seen the relevant photographs and, we feel that the Commissioner’s above observation is correct and does not merit any interference. It is not possible to come to a conclusion that road is developed for the benefit of the property of the respondents. Since about the rest of the report Mr. Warunjikar has not made any grievance, it is not necessary for us to dwell on that portion of the report. 5. Mr. Warunjikar, however, has some apprehension about the possible 4 mss PIL+144 demolition of the temple which he states is in existence for more than 100 years. So far as the temple is concerned, it is stated by the commissioner that the widening of the road would affect boundary wall of the temple which is to go inside by 1’ 6”. This will not affect sanctum sanctorum of temple which is at a distance of about 10’ ” from outer wall. Relevant photographs are at Nos. 13 to 16. 6. Since the sanctum sanctorum of the temple is not affected, we feel that it is not necessary to pass any direction in that behalf. In any case Mr. Reis, learned counsel for the Mumbai Municipal Corporation has made a statement that the Corporation shall not touch the temple or demolish the temple in the garb of widening of the road. We have accepted his statement. 7. Mr. Warunjikar submitted that there is no access to the garden which is developed. He has drawn our attention to the relevant photographs. Counsel for the builder Mr. Cheema, on instructions from his client has submitted that his client would create a ramp with a railing on the side and also construct steps so that people can easily enter the garden. This statement is accepted. 8. Mr. Warunjikar lastly submitted that the Corporation has issued 5 mss PIL+144 notices to the residents who are occupying the structures in the vicinity stating that during rainy season the structures are likely to collapse and, therefore, they should vacate them. Mr. Reis submitted that in this connection, if the residents of the area make any representation to the Corporation that will be considered in accordance with law. 9. Mr. Gangal, learned counsel for respondent 3 has stated that baseless and unwarranted allegations have been made against respondent 3 that he has used public funds /MLA funds. In this connection respondent 3 has filed an affidavit denying the allegations. We may also note that on behalf of respondent 7, Chief Engineer of MHADA, affidavit has been filed by Pradeep Manohar Argekar, Executive Engineer (Slum East), Mumbai Slum Improvement Board (MSIB). In paragraph 4 thereof he has stated ‘that the funds utilized for the beautification scheme undertaken are not from the funds of respondent 3 and/or the MLA funds but the funds to be utilized are made available by the Government of Maharashtra. 10. While denying the allegations made in the petition, respondent 3 Nawab Malik has stated as under: “7. I say that so far as beautification of the garden in 6 mss PIL+144 Subhash Nagar area is concerned, the said beautification is not done by me from my MLA fund. I say that being an elected member, at that time from Nehru Nagar constituency, I was nominated as member of District and Planning Committee (DPC for short) a statutory committee whose work is governed as by rules. There are several other members on the said committee including local MP, local MLA, important citizens and others. It is State that Planning Department which has entrusted certain amount for the said project. The Collector is member secretary of the said committee, District planning committee consisting of several members and the said members make only recommendations in respect of various public works to be carried out in the respective district areas, depending upon the availability of the funds. The Collector, who is executive authority, ultimately as per norms, executes the said work through approved agencies like MHADA, BMC, PWD etc. The work of beautification of the garden in Subhash Nagar which is plot no. 202 and 202 B is only recommendation of the District Planing Committee of which I was only a member. I have not spent any amount for beautification of that recreation ground from MLA fund. Therefore, I have no control while taking the 7 mss PIL+144 decision and the funds were not at my disposal and I was not executive authority. Even the Executing agencies are determined by the D.P.C. and subject to Govt. approved. All the allegations, therefore, regarding that of beautification of recreation garden from my M.L.A. funds is thus false, baseless and mischievous. The same are stoutly denied.” 11. There is no rejoinder filed to this affidavit. Hence, in our opinion, allegations made against respondent 3 do not appear to have been substantiated. Nothing more needs to be said. The petition is disposed of in the aforestated terms. (SMT. RANJANA DESAI, J.) (RAJESH G. KETKAR, J.)