1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 52 OF 2006 1. Vinod Gajanan Desai, ] Adult, Indian Inhabitant, Occupation: Retired, ] Residing at: ½ Kamana Co-op. Housing Society, ] S.K. Bole Marg, Mumbai 400 028 ] 2. Shri Siddhi Vinayak Co-op. Housing ] Society Ltd., Through: Nitin Manglore, ] the Secretary, 394, Veer Savarkar Marg, ] Prabhadevi, Mumbai 400 028 ] 3. The Ram Mansion Co-op. Housing ] Society Ltd., ] through the Secretary, Sanjay Wagh, ] S.K. Bole Road, Dadar, Mumbai 400 028 ] 4. Yadav Patil Wadi Rahivashi Sangh, ] through The Secretary, Lahu Surve, ] Yadav Patil Wadi, 384, Veer Savarkar Marg, ] Prabhadevi, Mumbai 400 028 ] 5. Calcutta Chawl Rahivashi Sangh, ] through The President, Pankaj Jadhav, ] Off S.K. Bole Marg, Mumbai 400 028 ] 6. Vasant Govind Hardikar, ] Adult Indian Inhabitant, Occupation: Retired, ] Residing at: 5, Siddhivinayak Co-op. Housing ] Society Ltd., 394, Veer Savarkar Marg, ] Prabhadevi, Mumbai 400 028 ] 2 7. Ashok Bhatkar, ] Adult Indian Inhabitant, Occupation: ] Cable Operator, Residing at Yadav Patilwadi, ] 384, Veer Savarkar Marg, Prabhadevi, ] Mumbai 400 028 ] 8. Dilip Gavas, ] Adult, Indian Inhabitant, Occupation: Service, ] Residing at 2/4, Kamana Co-op. Housing ] Society Ltd., S.K. Bole Marg, Prabhadevi, ] Mumbai 400 028 ] 9. Abhay Raul, ] Adult, Indian Inhabitant, Occ: Service, ] Residing at Jaysheela Building, Datta Raul Marg, ] Mumbai 400 028. ] ...Petitioners VERSUS 1. The Municipal Corporation of Greater Mumbai ] Municipal Head Office, Mahapalika Marg, ] Mumbai 400 001 ] 2. The Municipal Commissioner, ] The Municipal Corporation, Greater Mumbai, ] Municipal Head Office, Mahapalika Marg, ] Mumbai 400 001 ] 3. The Director, ] Engineering Services & Projects, ] Municipal Corporation of Greater Mumbai, ] Municipal Head Office, Mahapalika Marg, ] Mumbai 400 001 ] 4. The Assistant Municipal Commissioner, ] G/North Ward, Municipal Corporation of ] Greater Mumbai, Dadar, Mumbai ] 3 5. The Assistant Municipal Commissioner, ] G/South Ward, Municipal Corporation of ] Greater Mumbai, Prabhadevi, Mumbai 400 025 ] 6. Shri Siddhi Vinayak Ganpati Temple Trust, ] through: The President/Secretary, Prabhadevi, ] Mumbai 400 028 ] 7. The Unity Infera Projects Ltd., ] Pushpanjali Apartments, Anant Nagwekar Marg, ] Prabhadevi, Mumbai 400 025 ] 8. The Commissioner of Police, ] Mumbai, The Commissionerate of Police, ] Mumbai 400 001 ] 9. The Additional Commissioner of Police ] (Central Region), Mumbai, Byculla, Mumbai ] 10. The Senior Police Inspector, ] Dadar Police Station, Dadar, Mumbai 400 028 ] 11. The State of Maharashtra, ] through: The Principal Secretary, ] Urban Development Department, Mantralaya, ] Mumbai 400 032. ] ...Respondents. Mr. Sangharaj D. Rupwate with Mr. Gajanan P. Lasure for the Petitioners Mr. K.K. Singhvi, Senior Advocate, with Ms. Shobha Ajitkumar for the Bombay Municipal Corporation Mr. S.G. Surana with Mr. Umashankar Upadhyay for Respondent No. 6 Mr. Ravi Kadam, Advocate General, with Mr. K.R. Belosey for Respondents No. 8 to 11. 4 CORAM: B ILAL NAZKI and SMT. V.K. TAHILRAMANI, JJ. DATE: JUNE 17, 2009 ORAL JUDGMENT (Per Bilal Nazki, J.):- This Writ Petition was filed in public interest. 2. The petitioners were aggrieved of closure of a road adjacent to the famous temple, viz., Shri Siddhi Vinayak Temple, in Mumbai. When the P.I.L. was filed, the Court, on 12th October, 2006, passed the detailed order, by which the impugned permission was stayed on the ground that the impugned action of the respondents was not traceable to any provision of law. The Court, accordingly, directed: “Since the temporary permission for the offending wall is expiring on 31st October, 2006, we direct the Municipal Corporation not to extend the said permission further. If upon expiry of the permission and the period of four weeks thereafter, the offending wall is not removed, the Corporation shall take immediate steps in removing the said wall at the cost of respondent No.6 (Temple Trust).” 5 3. This order was challenged in the Supreme Court. The Court disposed of the Petition for Special Leave to Appeal by order dated 27th November, 200 in the following terms:- “Though in the impugned order certain directions have been given to the petitioners (Commissioner of Police, Mumbai, & Ors.) for removal of the wall, we request the High Court to dispose of the matters at the earliest i.e. at least within a period of three months after hearing all the parties. Meanwhile the demolition, as directed in the impugned order, may not be carried out before sitting up for final hearing. Parties would be at liberty to file additional pleadings, affidavits or documents.” 4. When the interim order, to which a reference has been given hereinabove, was passed, the thrust of the argument of the petitioner was that the said order was illegal, and the Corporation had no power to pass the same. The Court also found, prima facie, that the notification issued, closing the road temporarily, was not traceable to any provision of law. 5. Thereafter, it appears that the Municipal Corporation initiated action in terms of Section 289(3) of the Mumbai Municipal Corporation 6 Act, 1888 (hereinafter, “the Act”), and after receiving the objections, decided the matter and passed an order on 26th June, 2007. It was preceded by a Resolution of the Standing Committee dated 25th June, 2007, which was preceded by a notice under Section 289(3) of the Act. After the order of 26th June, 2007 was passed by the Corporation, the petitioners sought an amendment of the petition. The amendment was allowed, and the order of 26th June, 2007 was allowed to be challenged through amendment in the petition. Therefore, this Court, at this stage, is concerned with legality or otherwise of the order passed by the Corporation on 26th June, 2007. The written arguments have also been prepared by the learned counsel for the petitioners. 6. We are afraid that in this P.I.L., we may not be able to appreciate how much inconveniences the people around the temple would have to suffer because of construction of a wall and closure of a part of the road permanently, because the respondents have claimed that the closure of the wall was necessary for the security of the temple; and these conclusions have been drawn by the respondents on the basis of the intelligence inputs furnished by the Central Government. 7 But even then, this Court had earlier tried to examine as to what would be the inconveniences suffered by the people. One of the grievances was that there was a school near the temple, and students of the school were put to lot of inconveniences. 7. This Court passed an order on 30th January, 2008, by which it had requested the learned Advocate General to ask the concerned officials to see the possibility of finding some alternative, which would not compromise with the security of the temple, and in the meantime, reduce the inconveniences caused to the people living in the area. 8. Thereafter, it was expressed that no alternative was available, but we also found that the school children had an alternative route, which we recorded in our order dated 20th February, 2008 in the following terms:- “Today we have been told by the learned counsel for the petitioners that an alternative access is available to the residents as well as to the school children. We have also seen a letter of the Principal of the School written to one of the 8 petitioners in which the Principal has conceded that access is available to the school children, though they have to travel more. In this view of the matter, the learned counsel for the petitioners would contest the matter on the question of law only i.e. the legality and authority of the Corporation to close the public road by constructing the wall.” 9. In this view of the matter, and in the light of the order having been passed on February 20, 2008, we are not reverting to the aspect of the alleged inconveniences caused to the people due to closure of the road, and are confining this judgment to the legality or otherwise of the impugned order. 10. Section 289(3) of the Act lays down: “Vesting of public streets in the corporation.- (1) ..... (2) ..... (3) With the sanction of the corporation the Commissioner may permanently close the whole or any part of a public street: Provided that such sanction of the corporation shall not be given unless, one month at least before the meeting at which the matter is decided, a notice signed by the Commissioner has been put up in the street or part of a street which it is proposed to close, informing the residents of the said proposal, nor until the objections to the said proposal, if any, made in writing at any time before the day of the said 9 meeting, have been received and considered by the corporation.” 11. The objection raised by the learned counsel for the petitioners is that what sub-section (3) of Section 289 prescribes is issuance of a notice inviting objections, and the Corporation did not invite only objections, but it also invited suggestions, and, therefore, the notice is bad. It is true that the notice issued has used words ‘suggestions’ and ‘objections’, but has used those words almost synonymous to each other. But in the penultimate paragraph of the notice, it has been stated as follows:- “If the objections are not received within one month from the publication of the said notice, it will be presumed that there is no objection from the residents for the closure of the public streets referred to above.” 12. If the notice is read as a whole, there remains no doubt that the intention of the Corporation was clear that it intended to close the road for the purpose of security of Shri Siddhi Vinayak Temple, and the intended object of issuing a notice was, obviously, to seek objections, if any. Merely, the use of word ‘suggestion’ along with ‘objection’ at 10 some places in the notice would not render the notice illegal. In any case, the spirit of Section 289 of the Act is that people should have a chance, before closure of a road or part of a road, to object. This object has been achieved, as we have seen from the record produced by the Corporation, within a month, it received 8,940 objections / suggestions. Therefore, the argument that the notice was not in terms of Section 289 cannot be sustained. 13. Another objection is taken by the learned counsel for the petitioners that Shri Siddhi Vinayak Temple is located at S.K. Bole Marg, and it is nowhere mentioned in the affidavit that Shri Siddhi Vinayak Temple is on S.K. Bole Marg. The temple is so well-known that even if the notice had not given any description as to where this temple is situate, even then, people would have understood that the reference was to the said temple. The notice has further stated that the plan was submitted by the Deputy Commissioner of Police (Zone V), and was deposited at the Office of the Dy. Ch.E. (Traffic) of M.C.G.M., etc., and could be inspected by anyone during the office hours. Similarly, when nearly 9,000 objections were received, the people at large had understood that the reference was to a particular temple and a specific 11 road. Therefore, on this ground also, we cannot quash the impugned notice. 14. We have gone through the record. The respondents have considered the objections, and have come to a conclusion that the wall needs to be erected and road closed for the purpose of security of the temple. 15. The next contention of the learned counsel for the petitioners is that in terms of Section 290 of the Act, the road so closed has now vested with the Municipal Corporation, but the Corporation has not taken any steps for disposal of the said property. The Corporation has passed Resolution, in which it has been stated that possession of this area would be with the Corporation, and a permission given for permanent closure of the street would be subject to review of the Municipal Corporation, if, in future, threat created to the temple would end or substantially reduce. Therefore, we do not think that there is any violation of the provisions of Section 290. 16. For these reasons, we do not find merit in this P.I.L. It is, accordingly, dismissed. 12 17. Before, however, parting with the case, we may point out that the Municipal Corporation, on its own, though allowing the closure of the road on a permanent basis, has kept the option of re-opening the road open, depending upon the threat perception to the temple. In these circumstances, we direct that the Commissioner of Police shall, after one year from today, submit a detailed report to the Municipal Corporation with regard to the threat perception to the temple, because the threat perception, which was there for the temple, at a particular point of time, may increase or may decrease or may vanish altogether. Therefore, a review would be necessary, and the Corporation has been conscious of that when it passed the Resolution on 26th June, 2007. Let the threat perception to the temple be reviewed annually, and if, at any point of time, the threat perception reduces or vanishes, the Corporation may consider re-opening of the road in accordance with the Resolution. BILAL NAZKI, J. SMT. V.K. TAHILRAMANI, J.