1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CONTEMPT PETITION NO.48 OF 2008 IN WRIT PETITION NO.1201 OF 1997 Mumbai Educational Trust and another ..Petitioners. Vs. Khan Rehebar Siraj (Raja) and others ..Contemnors. And The State of Maharashtra ..Respondent. .... Mr. Rajesh Pati i/b M/s. Mahesh Jani & Co. for the Petitioners. Mr. M.S. Bhandari i/b Johnson John for Respondent No.. Mr. A.Y. Sakhare, Senior Advocate with Ms T.H. Puranik for the BMC – Respondents 2 to 4. .... CORAM : DR. D.Y. CHANDRACHUD, J. 13th July, 2009. P.C. : 1. A Petition under Article 226 of the Constitution was disposed of by a Division Bench of this Court by a judgment dated 28th November, 2006. The subject matter of the Petition was an open space reserved as a playground in the sanctioned development plan, being CTS A/761 at 2 Bandra Reclamation. The space had initially been allotted by the Municipal Corporation to Rizvi Education Society, but the Corporation after declining to grant an extension of the period of allotment took back physical possession. The Petitioner conducts a college on an adjoining plot of land and submitted a request to the Municipal Corporation for the allotment of the open space for the purposes of a playground. A petition was filed before this Court seeking reliefs to that effect. By the judgment of the Division Bench the Petition came to be allowed with a direction to the Municipal Corporation to allot the playground to the Petitioner. The Petitioner was to only have the right to maintain the playground and the Court clarified that the title to the land would continue to vest in the Municipal Corporation. The Petitioner was permitted to construct a compound wall around the playground. The Division Bench took note of the fact that during the pendency of the Petition, a small portion of the open space had been encroached upon by hutment dwellers. A plan was submitted on behalf of the Petitioner before the Court in which the area encroached had been demarcated and shaded. The Municipal Corporation was directed to remove all the unauthorized encroachers 3 within a period of eight weeks. 2. Pursuant to the order passed by the Division Bench, the Municipal Corporation handed over about 8,000 sq. mtrs. of land reserved as an open space in the sanctioned development plan to the Petitioner for development and maintenance, for a period of five years. The contempt proceedings were initiated before this Court on the allegation that the Municipal Corporation failed to abide by the direction of the Court to clear the land allotted from encroachments. When the Petition came up before a Learned Single Judge of this Court, Mr. Justice S.C. Dharmadhikari on 19th March, 2009, the Court observed that the directions issued by the Division Bench for the removal of encroachment “on the area allotted” must be observed by the Municipal and the State authorities. The grievance of the Petitioner was that a portion of the land could not be utilized and a compound wall could not be erected thereon in view of an encroachment. Both the sides placed on the record a site plan demarcating the portion where the compound wall would be constructed. The Court directed that the encroachment will be removed 4 so as to facilitate the construction of the compound wall on this portion. The bone of contention is as to whether there has been due compliance on the part of the Municipal Corporation. 3. Several affidavits have been filed by the Municipal Corporation in these proceedings. In an affidavit dated 6th October, 2008 the Municipal Corporation has stated that on 27th July, 2007 the playground admeasuring about 8,000 sq. mtrs. reserved as open space in the sanctioned development plan was handed over to the Petitioner for development and maintenance. After the order of the Division Bench the Municipal Corporation removed the extensions of the old structures on the North side of the compound wall on 10th July, 2007 though this area was allegedly not part of the suit land. The case of the Municipal Corporation was that the plot comprising of the playground was handed over free of encroachment in accordance with the orders of the Court. In a subsequent affidavit dated 15th November, 2008, the Municipal Corporation has again reiterated that the area of the playground admeasuring about 8,000 sq. mtrs. reserved as open space in the 5 sanctioned development plan was handed over to the Petitioner. However, on actual measurement the area which has been handed over to the Petitioner is found to admeasure 9,195 sq. mtrs. The structures / hutments on the northern side compound of the playground are stated not to be in the possession of the Municipal Corporation. A third affidavit has been filed on 2nd July, 2009 in which it has been stated that the Petitioner has, as a matter of fact, constructed a compound wall and there is no unauthorized structure standing within the wall. In respect of the encroachments which fall outside the compound wall, the Municipal Corporation has issued a general notice calling upon the occupiers to produce documents to prove the existence of the structures/ huts prior to the cut off date of 1st January, 1995. According to the Corporation the encroachment is in respect of one structure/hut where the occupant has produced documents showing the existence of the structure prior to 1st January, 1995. Accordingly a letter has been addressed by the Corporation to the Petitioner calling upon it to pay the costs of providing an alternative allotment (described as a PAP allotment) to the occupier. The amount required to be deposited is Rs.1,60,900/-. 6 4. Counsel appearing on behalf of the Petitioner seeks to rely upon the averment contained in the first affidavit of the Municipal Corporation to the effect that there was no encroachment within the compound of the open space when the Division Bench delivered its judgment. It was after the judgment was delivered that certain encroachments are stated to have taken place. According to the Petitioner the Municipal Corporation is duty bound to clear the encroachments. 5. On the other hand it has been urged on behalf of the Municipal Corporation that the area that was allotted to the Petitioner admeasures 8,000 sq. mtrs. though as a matter of fact on actual demarcation the Petitioner is in possession of 9,195 sq. mtrs. of land. The compound wall around the playground has been constructed by the Petitioner and admittedly there is no encroachment within the compound wall. Moreover, it was submitted that the Petitioner had produced before the Division Bench only a rough plan or sketch which is not drawn to scale, In compliance with the orders of the Division Bench the area which was 7 reserved for a playground under the sanctioned development plan was handed over to the Petitioner and encroachments within that area have all been cleared. 6. From the material that has emerged before the Court in these proceedings, it is evident that the judgment of the Division Bench required the Municipal Corporation to allot the area reserved as a playground in the sanctioned development plan to the Petitioner purely for the purposes of maintenance as such and without the creation of any right, title and interest. The title and interest in the land continues to vest in the Municipal Corporation. In pursuance of the order of the Division Bench an area admeasuring 8,000 sq. mtrs. came to be allotted to the Petitioner on or about 27th July, 2007 and possession was handed over. The judgment of the Division Bench took note of the fact that certain unauthorized encroachments had taken place in a portion of the land which were shaded in the sketch which was placed before the Court by the Petitioner. A copy of the aforesaid sketch has been annexed by the Petitioner to the affidavit in rejoinder dated 24th November, 2008 and ex 8 facie, it is evident therefrom that it is not drawn to scale. What the order of the Division Bench contemplates is the allotment of the area reserved as a playground to the Petitioner and the removal of encroachments therein. Admittedly, 8,000 sq. mtrs. of land reserved in the sanctioned development plan as a playground have been allotted to the Petitioner. This is clarified in paragraph 3 (c) of the affidavit dated 6th October, 2008 and in paragraph 4(c) of the affidavit dated 15th November, 2008. The next important aspect of the matter that needs to be emphasised is that the area which is actually in possession of the Petitioner is in excess of what was allotted inasmuch as the Petitioner is in possession of 9,195 sq. mtrs. An averment to that effect is to be found in paragraph 4(g) of the affidavit dated 15th November, 2008 filed by the Municipal Corporation. During the course of the contempt proceedings one of the grievances that was urged before the learned Single Judge on 19th March, 2009 was that as a result of encroachments, the construction of the compound wall could not be completed. In the circumstances, Mr. Justice S.C. Dharmadhikari directed that parties shall abide by the directions of the Division Bench and ensure that the authorities must render all assistance 9 for removal of the encroachments and for construction of the compound wall. The Municipal Corporation has now stated in its final affidavit dated 2nd July, 2009 that the compound wall has been constructed and there is no unauthorized structure within the wall. During the course of the submissions, counsel appearing for the Petitioner has fairly not disputed the position that (i) The area which is actually in possession of the Petitioner admeasures 9,195 sq. mtrs.; (ii) There is no encroachment within the area of 9,195 sq. mtrs. Once that is the position, it is not possible for the Court to accept the submission that there has been a breach of the order passed by the Division Bench. The Petitioner does not have any subsisting grievance about the area allotted. The fact that the compound wall has been reconstructed is an indicator of the fact that the encroachments within the area have been removed. As a matter of fact, it is not disputed that the entire area of 9,195 sq. mtrs. is free from encroachments. 7. That being the position, it is not possible to accept the submission that there has been a breach of the judgment of the Division Bench. This 10 Court is exercising the power to punish for contempt in these proceedings. In any event, unless a clear case is made out for the exercise of the jurisdiction, it would not be appropriate and proper for the Court to accept the contention of the Petitioner. For all these reasons, there is no merit in the Contempt Petition. The Petition shall accordingly stand dismissed. *****