1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CONTEMPT PETITION NO.72 OF 2009 IN WRIT PETITION NO. 837 OF 2009 Maganlal Popatlal Charity and Sarvodaya Hospital Trust. ...Petitioner. Vs. The state of Maharashtra & Ors. ...Respondents. And Mr.Ratnakar Gaikwad & Ors. ...Contemnors. .... Mr.J.S. Kini i/b. Suresh Dubey for the Petitioner. Mr.Milind More, AGP for Respondent Nos.1, 3 and 4. Mrs. Kiran Bhagalia, for the Contemnors. ..... CORAM : DR.D.Y.CHANDRACHUD, J. July 28, 2009. P.C. The Petitioner had moved this Court in a proceeding under Article 226 of the Constitution, seeking to challenge certain notices and praying for a writ of Mandamus, directing the Respondents to grant to the Petitioner alternate land, for a fair and reasonable enhancement of compensation and to consider the objections of the Petitioner to the acquisition of certain land. An affidavit in reply was 2 filed by the Executive Engineer of the Mumbai Metropolitan Region Development Authority (MMRDA), setting out therein facts relating to the acquisition of land required for (i) The Andheri Ghatkopar Link Road (AGLR); and (ii) The Metro Rail Corridor. Paragraph 2 of the affidavit stated that the lands were required for the Metro Rail Corridor, including a portion of the property belonging to the Petitioner and was notified for acquisition. However, considering the representations received by MMRDA and the exorbitant cost of acquisition, MMRDA proposed to change the alignment of the Corridor by which the building and other structures of the Petitioner would not be affected. The Petitioner’s property is utilized for running a Charitable Hospital – Sarvodaya Hospital – upon which there is a main building which is described as Mahavir Building. In paragraph 14 of the affidavit, MMRDA stated that there were nine unauthorised structures which had been constructed by the Petitioner in respect of which notices under Section 351 of the Mumbai Municipal Corporation Act, 1888 were issued. Six of those structures were demolished in February 2009, while the remaining three had remained to be demolished for want of adequate Police arrangements. 3 -2. The Petition was disposed of by a Division Bench by an order dated 5th May 2009 which reads as follows: “The affidavit on behalf of the MMRDA has been filed. It is stated in the affidavit and even at the Bar now that the authority is considering the entire material and keeping in view the high cost involved, they shall even consider realignment of the road in question. In view of the statement made, we do not think anything survives in this petition at this stage. We dispose of this petition directing the respondents-authorities to take action in accordance with law expeditiously and finally decide the question of realignment of the road in question. Status-quo in regard to the building shall be maintained and will remain effective for a period of two weeks after taking of the decision by the respondents. All contentions raised in the present writ petition are kept open and the order is also without prejudice to the rights of the respondents. No order as to costs.” The period of two weeks was modified by a subsequent direction dated 7th May 2009 as four weeks. -3. On 15th May 2009, MMRDA informed the Petitioner that there was no change in the road alignment of the Andheri-Ghatkopar Link Road passing through the open land of the Hospital premises which should, therefore, be taken as a final alignment. The Petitioner was informed that the construction of the road would be started 4 immediately by demolishing the compound walls. -4. The grievance of the Petitioner is that a demolition took place on 28th May 2009 during the course of which five rooms came to be demolished. According to the Petitioner, these five structures were utilized for providing ancillary facilities to the Hospital. On the other hand, the contention of MMRDA is that these structures were unauthorised and were in the nature of temporary sheds. -5. The institution of the contempt proceedings is founded on the submission that in breach of the directions issued by the Division Bench requiring the maintenance of status quo for a period of four weeks after the decision was taken by MMRDA, the demolition took place. -6. Counsel appearing on behalf of the Petitioner submitted that the Division Bench had directed MMRDA to maintain the status quo in regard to the building; that the reference to the building must necessarily be construed as a reference to the other ancillary 5 structures of the Hospital as well. Counsel submitted that these observations of the Division Bench must be read in the context of the affidavit filed by MMRDA before the Court in the earlier proceedings to the effect that MMRDA was proposing to change the alignment of the Metro Rail Corridor whereby Mahavir Building and the other structures of the Petitioner would not be affected. -7. On the other hand, during the course of the hearing and in the affidavit that has been filed by MMRDA, an effort has been made to demonstrate before the Court that there are two separate projects. The first is that of the Andheri-Ghatkopar Link Road for which acquisition had been completed in 1986 and 2008 while the second is for the Metro Rail Corridor in respect of which a change in the alignment was proposed. MMRDA’s submission is that the demolition which took place was only in respect of the land which had already been acquired in 1986 and 2008. MMRDA’s affidavit before the Division Bench of this Court was to the effect that what was being reconsidered was the re-alignment of the Metro Rail Corridor. The Division Bench directed the maintenance of status quo in respect of 6 the building pending a decision on the aforesaid aspect. The demolition which took place has, it was urged, nothing to do with the Metro Rail Corridor, but was in connection with the AGLR project for which lands were already acquired in 1986 and 2008. -8. The material on record would indicate that an award under the Land Acquisition Act was passed on 16th September 1986. This award, according to the affidavit dated 24th July 2009, filed by the Executive Engineer of MMRDA was in respect of an area admeasuring 4065.9 sq.mtrs. MMRDA states on affidavit that an additional area of 2044.50 sq.mtrs. vested in MMRDA in 2008 after the procedure under Sections 299 and 488 of the Mumbai Municipal Corporation Act, 1888 was followed. This area is stated to fall in the AGLR project. No change in the alignment was contemplated of the AGLR project. The change in alignment was proposed only in respect of the Metro Rail Corridor and was not in respect of the area which had already been acquired. MMRDA has, together with its affidavit, annexed a plan which shows the extent of the acquisition under the award of 16th September 1986 and under the acquisition which took place pursuant 7 to the Mumbai Municipal Corporation Act, 1888 in 2008. At the present stage, for the purpose of these proceedings, on the basis of the plan which has been filed by MMRDA, it would appear that the acquisition which took place in 1986 included almost all the structures that came to be demolished. Structures 1 to 5 are entirely within the scope of the acquisition of 1986, while a portion of structure No.6 falls within the land acquired in 1986. The remaining part of Structure No.6 would appear from the plan to be covered by the vesting which took place in MMRDA in 2008. The order passed by the Division Bench required MMRDA to maintain the status quo during the period when the question of re-alignment was being considered and for a period of four weeks after the decision was taken. The question of re-alignment related to land which was still to be acquired since, in respect of those lands which had already been acquired, there was no question of re-alignment. MMRDA had stated on affidavit before the Division Bench that the question of re- alignment of the land which falls within the Metro Rail Corridor was proposed because of the high cost of acquisition. Obviously, therefore, the question of re-alignment had no reference to land which had 8 already been acquired prior to the institution of the proceedings before this Court. Consequently, it is not possible to come to the conclusion that the demolition proceeded in breach of the direction that was issued by the Division Bench on 5th May 2009. MMRDA has clarified on affidavit that the subject matter of the action which has been taken on 28th May 2009 relates to the land which has already been acquired by it. Particularly in the exercise of the contempt jurisdiction, it would not be permissible for the Court to dwell into the matter any further especially since on an evaluation of the record, it does emerge that the directions issued by the Division Bench were not breached. -9. The Contempt Petition shall accordingly stand dismissed. However, it is necessary to clarify that the observations contained in this judgment are confined to the disposal of the Contempt Petition and shall not be construed as a final adjudication of this Court on the rights and contentions of the rival parties, should they be required to be adjudicated in any other proceeding under the law. .....