1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL SIDE NOTICE OF MOTION NO. 331 OF 2009 IN WRIT PETITION NO. 2565 OF 2005 Janhit Manch and Ors. ... Petitioners Versus State of Maharashtra and Ors. ... Respondents Mr. V.K. Shiralkar, Amicus Currie for Petitioner. Mrs. S.M. Dandekar, A.G.P. For R. Nos. 1, 3 and 4. Mr. N.H. Seervai, Sr. Counsel with Mr. A.S. Doctor i/by Mulla & Mulla & C.B & C. for Applicant in Notice of Motion No. 331 of 2009. Mrs. Shaila Pathak i/by Pathak & Associates for Intervener. Mr. Surel S. Shah for R. No. 11. Mr. A.S. Rao for R.No. 8. Mrs. S. Ajitkumar for R. No. 6. Mrs. Rutuja Ambekar for R. No. 2. CORAM : F.I. REBELLO & J.H. BHATIA, JJ. DATED : MARCH 03, 2010 P.C. On 8th February, 2006, this court noted the environmental hazards caused by tabelas. The relief sought by the Petitioner was to shift tabelas out of Corporation Area. The issue of shifting was differed. But in the meantime, the court directed tabela owners to comply with the environmental laws and to ensure that no pollution is caused due to dung and washing activities. On 29.6.2006 the court directed the Maharashtra Pollution Control Board to survey the tabelas at Aaray 2 Colony, Malabhatt Road Nalla, and other areas. On 18th January, 2007 this court recorded a statement made on behalf of the Government that a policy decision had been taken that all the stables in Mumbai including those in Aarey Colony have to be shifted outside the Mumbai Suburban District. This court also recorded that the Cattle Controller had given notice to the Stable owners for various breaches of the law and to vacate the premises. On 20.6.2007 the court noted that the State must take all protective steps to ensure allotment and shifting of the animals to the proposed site at District Thane. On 11.9.2008 the court noted that on account of agitation and financial burden upon the State, the site was required to be changed from Vasai Virar to Dapcheri. Mr. Seervai appearing for R. No. 10 had contended before the court that the site at Dhapchery is not developed for the purpose of establishing dairy complex. According to affidavit of Government, facilities are available at the site in question. The court therefore, directed the local Commissioner to be appointed to visit both the sites at Dhapchery as well as at Vasai Virar and submit to the court whether there were enough infrastructure facilities at Dhapchery and whether there is sufficient greenery and other factors necessary for running a dairy available at the said area including water, electricity and infrastructure for disposal of the waste as also what is the present status of the site particularly with reference to the area in question. 2. This court by order dated 18.12.2008 had adjourned the matter to 15.1.2009 by noting that in the meantime in terms of the affidavit filed by the State, shifting of tabelas of the cattle along with with cattle be started and while shifting the cattle, the state shall also provide the methodology by which the milk should be transferred from the site to the city of Mumbai. 3 3. After this order came to be passed, the present motion has been taken out based on the unsigned copy of a communication addressed to the Commissioner, Worli Dairy. The Motion is based on the contents of the said communication, which includes a prayer clause : “That this Hon’ble Court be pleased to modify the order dated 18.12.2008 by directing State to shift/relocate the cattle of members of Respondent No. 10 to Aarey Milk Colony.” 4. On 18.6.2009, the court took note of the Motion by Respondent No. 10 which included letter at Exh. A. On 10.12.2009 the court further directed reply to be filed with reference to letter dated 22.1.2009 addressed to the Commissioner, Milk Business Development department, Worli, Mumbai 65 and setting out the State policy. 5. In the reply Mr. S.V.R. Shrinivasa, Commissioner of Dairy Development Maharashtra State has set out various reasons opposing the Motion and also pointed out that it is not possible to rehabilitate members of Respondent No. 10 in the Aarey Colony. 6. Apart from that Arundhati Sheletkar, C.E.O. Aarey Milk Colony, who had addressed the communication to the Commissioner, Dairy Development, has explained the circumstances in which letter was written and has set out as under : 4 “I do not admit the correctness of the same as I have annexed signed correct copy which is available on my record.” The said affiant has also set out that while submitting the report the only issue dealt was the aspect of surplus land available in the Aarey Milk Colony and that was commented upon and the remarks do not deal with all other mattes particularly availability of water, electricity and other factors. The said communication was forwarded as the State Government had called for the remarks from the Commissioner of Dairy Development in respect of shifting of tabelas to Aarey Milk Colony based on Exh. 5 to the reply. 6. In our opinion, once this court after hearing the parties had passed an order dated 18.12.2008, merely based on an unsigned and undated copy of a communication from the file of C.E.O. of Aaray Milk Colony cannot result in change of circumstance or alter the position, warranting the present motion. The C.E.O. Was not the decision making authority. Apart from that the said Chief Executive Officer had also explained the circumstances in which the said letter was written. 7. The State Government has considered the said report and not the unsigned copy relied upon by the Petitioner and has taken a stand that it is not possible to rehabilitate the members of Respondent No. 10 in Aaray Milk Colony. Once the State Government has taken a decision, in our opinion, Respondent No. 8 can claim no right in the land at Aarey. 5 8. In the affidavit of Mr. Srinivasa, Commissioner of Dairy Development it is set out that the State Government issued notification dated 1.7.2006 in the exercise of powers under Section 10(1) of the Maharashtra Keeping and Movement of Cattle in Urban Areas (Control) Act, 1976, declaring the entire area of the Mumbai city from Mahim Creek to Sion and entire area from M.S.D. being the area to be a prohibited area for the purposes of the said Act. However, in view of the Government resolution dated 27.3. 1978 Aarey Milk Colony has been exempted from the provisions of the said Act. Consequent to the notification no person can keep the cattle nor can anybody bring into that area any cattle with effect from 31st January, 2007. The State Government thereafter in exercise of the powers conferred under Section 37(2) of the Maharashtra Regional and Town Planning Act, 1966 has issued direction as far back as 29th April, 2002 and sanctioned the modification by adding Sub Regulation 17 to Regulation 33 of the Development Control Regulations, 1991. As a result of which on land becoming vacant as a result of shifting of cattle shed existing thereon to a place outside Greater Bombay, additional FSI to the extent of 33% over and above permissible FSI has been made available on shifting of cattle shed for the land occupied. Thus the State Government has given incentives to stable owners in respect of aforesaid area. It is then set out that the stable holders should shift their cattle to the area of Dairy Project, Dhapchery, Taluka Dahanu as the entire land in Dhapchery is readily available for such rehabilitation and the entire infrastructure such as electricity, 6 water, green field is readily available at the aforesaid site of Dhapchery. 9. This court had appointed a Commissioner to visit the site and to submit the report whether Dhapchery had infrastructure facilities, sufficient greenery and other factors necessitating running of dairy at Dhapchery. The Commissioner was also directed to visit Deodal, Kaman in Vasai Virar Belt and submit report as to what was the status at the site. As per the said report it is clear that the land at Dhapchery has all the infrastructure required for the purpose of dairy project. The court thereafter on 11.12.2008 directed the State Government to file the Action Plan. Accordingly the Respondent State by affidavit dated 16th December, 2008, filed the Action Plan and in view of the said affidavit, by an order dated 18th December, 2008, the Court had directed shifting of the tabelas of the cattle along with cattle be started and while shifting the cattle, the State shall also provide the methodology by which the milk should be transported from the Site to the city of Mumbai. 10. On 15.1.2009 the cattle owners, cattle holders had pointed out that they are ready to shift to Aarey Colony or at Vasai. The State Government was directed to clarify the position. The report was called from the Chief Executive Officer. In view of the letter, the affiant consulted the State Government and after consultation and approval and instructions at the highest level from the State Government, the decision has been taken that at present 36000 cattle and 1450 cattle holders approximately must go to Dhapchery as it is not possible for the State Government to accommodate them at the Aarey Colony. The request of the cattle owners to be accommodated at Aarey Colony is not acceptable to the State Government as the 7 same is not feasible for the various reasons set out therein. It is also pointed out that Aarey Colony is the only Green Zone in the city of Mumbai and it is in No Development Zone as per the Development Plan of 1991 and therefore, it will not be in the interest of the environment or from the point of development to disturb this area by allowing 36000 number of cattle and 1450 cattle holders to shift to the Aarey Colony. It is also pointed out that; there are already 16000 cattle at Aarey Colony and if in addition, 36000 cattle are added to the said area, then it will be hazardous from the environmental point of view. There is also acute shortage of water. From the stand of the State it is clear that they are not agreeable to shift the cattle to the Aarey Milk Colony and the cattle along with cattle holders must shift to Dhapchery. 11. In our opinion, therefore, both on the ground that there is no change of circumstances warranting interference in the oder of the court dated 18.12.20008 and the stand of the State Government in terms of the affidavit filed by Mr. S.V.R. Srinivas, Commissioner of Dairy Development, Maharashtra State, the relief as prayed for in this Motion cannot be granted and consequently motion dismissed. (J.H. BHATIA,J.) (F.I. REBELLO,J.)