1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PIL NO. 195 OF 2009 Mr. Sumitra Krishna Kadu, aged about 44 years, occupation Business, residing at Shindutai Niwas, House No. 166/001, At Post Kharave, Post Nerul, Navi Mumbai 400 706. ... Petitioner Versus 1. The State of Maharashtra, 2. City Industrial Development Corporation of Maharashtra Ltd., (CIDCO) having its address at CIDCO Bhavan, CBD Belapur, Navi Mumbai 400 614. 3. Managing Director, City Industrial Development Corporation of Maharashtra Ltd. (CIDCO) having its address at Nirmal, Nariman Point, Mumbai 400 021. 4. Secretary, Urban Development Department, Mantralyaa, Mumbai State of Maharashtra, Mumbai 400032. 5. Commissioner of Police, Navi Mumbai, having its office at CBD Belapur, Navi Mumbai 400 614. 6. Secretary, Home Department, Mantralaya, Mumbai. 7. Revenue and Forest Department, Mantralaya, Mumbai 400 032. 8. Islamic Welfare Association, having its office at C/10/03;1, Sector 16, Nerul, Phase III, Navi Mumbai 400 706. ... Respondents Mr. G.N. Salunkhe with Mr.H.G. Wakshe for Petitioner. Mr. R.P. Behre, Addl. G.P. for R. No. 1. Mr. R.D. Soni with Mr. Bipin Joshi for R. No. 8. 2 Mr. A.M. Kulkarni for R. Nos. 2 and 3. CORAM :FERDINO I. REBELLO & A.A. SAYED,JJ. DATED : APRIL 07, 2010 ORAL JUDGMENT : (Per Ferdino I. Rebello,J.): Rule. Heard forthwith. 2. The Petitioner has approached this court as project affected person involved in social activities and as a social activist. He has not disclosed in the averments that he was the Regional Head of Shivsena at Nerul which is demonstrated by Exh. H to the Petition. The Petitioner is aggrieved by the action of Respondent No. 2 City Industrial Development Corporation (CIDCO) in leasing out a plot of land bearing No. 149 Sector 50E at Nerul, Navi Mumbai by lease deed dated 17.7.2009 in favour of Islamic Welfare Association, Respondent No. 8. It is the case of the Petitioner that a plot of land admeasuring 3999.81 sq. mtrs., bearing plot No. 93 of Sector 50E was originally reserved for school. Plot No. 144 of Sector 50E was admeasuring 1042.27 sq. mtrs., was reserved for religious purpose. The Plot No. 144 originally shown as plot No. 94 in the map has been shifted to Plot No. 93 by dividing the plot by reducing its area. According to Petitioner, the area where the plots are situate are to be allotted to project affected persons as the entire area is project affected and the plots should be allotted to project affected persons which has not yet been completed. There are no members of the Muslim community in the locality. The Members residing in the locality profess the Hindu faith. The plot of land which has 3 been alloted, has been done without necessary permission. Respondent No. 5, Commissioner of Police had rejected the permission to lease the plot. No permission has been obtained from Respondent Nos. 6 and 7 which are the Home and Revenue Departments of State of Maharashtra. The land in question it is set out has mangroves which cannot be removed unless permitted by Respondent No. 7. 3. Though Respondent No. 5 initially granted approval, from law and order point of view vide letter dated 29.8.2005 the Deputy Commissioner after verifying the actual situation addressed a letter dated 16.10.2006 to Respondent No. 5 and submitted a report and recommended to reject the proposal of Respondent No. 8 from law and order point of view. The Respondent No. 4 initially on 24.10.2006 rejected the proposal for allotment of lease of plot of land in favour of Respondent No. 5. Respondent No. 8 was also informed by letter dated 11.6.2007. Subsequently on 31.3.2008 Respondent No. 4 surprisingly by referring to letter dated 29.8.2005 from Respondent No. 5 granted approval for allotment of plot by Respondent No. 2 to Respondent No. 8. Once the Respondent No. 4 had rejected the approval, there was no change in circumstances to grant approval by referring to any report of Commissioner of Police which report has subsequently been cancelled. 4. Some time in the second week of August, 2009, Petitioner saw some persons digging on the plot of land and hence, approached the police station. According to the Petitioner the public is very much annoyed and aggressive and there is every possibility of riot and from law and order point of view the said allotment is required to be cancelled. 4 It is thus in the case of the Petitioner that approval by Respondent No. 4 by order dated 1.4.2008 and the lease dated 17.7.2009 are arbitrary and issued in violation of the rules and regulations and guidelines and is politically motivated allotment in favour of Respondent No. 8. It is thus submitted this court in exercise of its powers under Article 226 of the Constitution of India should exercise its extra ordinary jurisdiction. 5. On behalf of the State Government, reply was filed by Mr. Suresh Kakani, Deputy Secretary to the Government of Maharashtra, Urban Development Department. It is set out therein as under : The proposal for approval of the resolution passed by Respondent No. 5 was submitted to the Government in Urban Development Department on 9.6.2006. Initially the proposal for allotment of said plot to Respondent No. 8 was rejected. Later on considering the report of Police Commissioner’s office at Navi Mumbai and concurrence of Home Department in Mantralaya, the proposal of allotment was passed on the terms and conditions. Reliance is placed on the report of the police commissioner Navi Mumbai dated 29.8.2005. One of the condition for approval is that the Trust should take prior permission of Home Department Mantralaya, before starting construction work of the mosque. The terms and conditions are reflected in the agreement between CIDCO and Respondent No. 8. Respondent No. 8 is bound by these conditions. 6. On behalf of CIDCO, an affidavit also been filed. Therein it is set out as under :The Petition has been filed with ulterior motive to create religious disharmony in the Nerul Node. The allotment was made in accordance with the 5 rules and regulations and policy and after seeking approval of the State Government. Therefore, the contention of the Petitioner that the allotment of land to Respondent No. 8 and the approval of the State Government for the same is arbitrary and in violation of rules, regulations and guidelines, and is politically motivated is denied. The Petitioner has no locus standi to seek relief of cancellation of plot allotted to Respondent No. 8. The Petition also raises disputed questions of fact. Respondent No. 2 is a new town development authority in Navi Mumbai. The Board of Directors has constituted a Social Facility Committee, consisting of the senior officials of the Corporation to consider the allotment of plots for social facility purposes as per the approved policy. Under the policy, it is permitted to allot land for the religious purpose to the registered Trusts on the basis of request of the trusts, if such Trust is fulfilling the eligibility criteria. The plots earmarked for religious purposes are not required to be advertised and such allotments are made as per the requirements in Navi Mumai to the eligible Public Charitable Trusts. Respondent No. 8 is the trust registered by Muslim community living in Nerul Node under the Bombay Public Trusts Act. In Nerul Phase II, the existing Masjid is at a distance of 2.75 KM from the area now allotted. Members of the Muslim community, particularly the older and younger ones, are required to go a long distance for prayer to the existing masjid. Considering the religious needs, the trust had approached the Corporation by applying for a plot in the year 2002. As at the relevant time, the objects of the trust did not permit religious activities, the application was rejected by the letter dated 20.11.2002. The trust Deed was subsequently modified and religious activities are included. In support of their 6 application, they had also submitted a list of 333 family members. The proposal was referred to the Planning Department with a view to ascertain the availability of land for Masjid. As per the socio-economic survey conducted by the CIDCO in the year 2000, the Muslim population of Nerul node is 7.1%. As per the planning norms, approximately 3546 sq. mt. (i.e. @ 0.15 m2 per capita, maximum) land is permitted to be allotted to the Muslim community for activities connected with religious purposes. The Corporation made allotment of total 2187 sq. Mtr. land to the Muslim community, out of which 1692 sq. mt., is for Masjid and 495 sq. mt., is for madrassas. Accordingly, the planning department of CIDCO identified plot No. 144 admeasuring 1042.27 sq. mtrs. The Commissioner of Police (Navi Mumbai) had granted No Objection Certificate for allotment of the said plot to the Trust for religious activities vide letter dated 29.08.2005. The proposal was submitted to the State Government vide letter dated 9.6.2006. The proposal was initially rejected by letter dated 11.6.2007 on the ground that the permission for allotment of plot for Masjid may lead to law and order problems. That decision was conveyed to Respondent No. 8. The respondent No. 8 was asked to identify other locations for Masjid. That however, was not accepted and they informed orally that they are making correspondence with the Government to reconsider the decision. The State Government, Urban Development Department sought views of Respondent No. 2 in respect of allotment of plot. The State Government was informed that the Commissioner of Police, Navi Mumbai had issued N.O.C. for allotment of plot to the trust and therefore, the Government may reconsider the decision. The State Government Urban Development Department thereafter issued letter dated 31.3.2008 for allotment of plot but on the condition that the construction should be commenced 7 only after grant of permission by the ‘Home Department. After allotment and before execution it was revealed that the plot was affected by mangroves and development could not be taken up on the said plot. It was therefore, decided to allot a developable plot free from mangroves and accordingly the location was changed and the plot was realigned. The agreement to lease was executed on 17th July, 2009. The Navi Mujmbai development plan broadly indicates the land use zone and there is no concept of specific plot wise reservations as is conventionally done in case of other Municipal Corporations/Councils. The contention of the Petitioner that the construction of mosque would cause nuisance to general pubic is denied. The Commissioner of police vide letter dated 17.9.2009 has informed that due to allotment of land to Respondent No. 8 for setting up a Masjid, there is stiff opposition of the local residents and political parties, and due to such discontentment, there is likelihood of law and order problem and possibility of communal riots. Therefore, a request was made to Respondent No. 3, the Managing Director, CIDCO to take suitable decision in this respect. A detailed reply is sent to commissioner of Police and Respondent No. 2 is awaiting the decision of the Government. 7. A reply has also been filed by Respondent No. 8. It is pointed out that there are 331 families residing at Sectors, 2, 8, 16, 18 and 24. After getting the lease of the land they applied to Navi Mumbai Municipal Corporation for issuance of NOC for filling of rubble, debris etc. and accordingly Navi Mumbai Municipal Corporation by their letter dated 28.8.2009 granted permission for removal of 8 rubble, debris upon the terms and conditions mentioned therein. It is denied that the entire locality is occupied by persons professing Hindu faith. A sizable number of Muslims reside in this node. The proposed mosque is for the entire West region of Nerul and Seawood nodes, where a very large number of Muslims reside and as per the population criteria of Urban Development Department, more than one mosque are required here. The plot was specifically earmarked for specific social purpose including mosque and the same cannot be used for any other purpose. Various other facts have set out which need not be adverted to. Reference is made to the policy guidelines which requires prior permission of the State Government which in the instant case has been done. 8. A reply has also been filed by Mr. Maruti R. Chalke, Assistant Commissioner of Police, Navi Mumbai. In the said affidavit it is set out that the letters issued by the Deputy Commissioner of Police Navi Mumbai specifically states that if the permission is granted to the Islamic Welfare Association for erecting mosque, then in future due to difficulty in law and order, it will not be appropriate to give permission on the survey number for building the mosque. No reference is made to the letter of Police Commissioner who had specifically granted his no objection. 9. A rejoinder has been filed by the Petitioner, denying various averments made in the affidavit in reply. 10. From the averments in the reply filed on behalf of the authorities, it was clear that lease has been entered into after complying with the rules and regulations for 9 allotment. The opinion of the Police Commissioner was also sought who has given his no objection. The Home department has considered the same and the government thereafter decided to approve the resolution of Respondent No. 2 to make allotment in favour of Respondent No. 8. In our opinion, therefore, in the matter of allotment there has been no violation of any provisions of the Act and rules or guidelines. More so considering the affidavit filed by Respondent No. 2. 11. The only issue is the affidavit filed by the Assistant Commissioner of Police, Navi Mumbai. We fail to understand how the Assistant Commissioner of Police without considering the NOC given by the Commissioner of Police dated 29.8.2005 could have taken a view different from that taken by the Commissioner of Police. At least nothing has come on record to that effect. That there are some organizations which raise objections cannot be the ground for rejecting the proposal if otherwise the proposal is in accordance with the law and meets all the requirements. The constitutional scheme which in its preamble declares India a secular State cannot be defeated because some political parties or groups professing or propagating a particular religion, chose to object to another community, may be a minority a place of worship. If the approach of the Assistant Commissioner of Police is to be accepted, then a majority community can always raise an objection to a minority community having a place of worship considering the population ratios of the communities in the State. Secondly the second report may be after some time however, virtually ignores the report submitted by the Head of the Department for the area. In our opinion, there is something that the office of D.C.P., needs to look into. 10 12. It is not possible to bypass the secular character of our constitution whose preamble sets out that the India amongst others will be a secular democratic republic. India consists of people professing various faiths of different ethnic groups and speaking a multitude of languages. They all constitute the fabric of the nation. Intolerance towards a religious group or linguistic minority, or regional consideration are foreign to our constitutional scheme though we do find, as a practical reality, such issues surfacing at the instance of the organizations and political parties, who though subscribe to uphold the Constitution and laws of India, forget the spirit of the constitution. If in the locality there is preponderance of one group professing a particular faith, that does not mean that the minority group cannot be allowed to practice and profess their religion as long as they obey the law. The threats of violence and or riots are anathema to the rule of law. Tolerance and respect for the constitution is what we must aspire. If we as citizens lose sight of these basic values, it would amount to giving go-bye to the constitutional spirit. The Petitioner has annexed letter from the office of the Police Commissioner of Mumbai dated 4.4.2008 wherein it is set out that there is objection of Shiv Sena and Vishwa Hindu Parishad to allot land for Masjid. The rule of law cannot be dictated by political parties or Organizations professing a particular faith. They will have to accept the secular character of our constitution. The police machinery must rise to the occasion and deal with such threats if they are against the law. Threats by such organizations cannot be the basis for cancelling allotment of the land. That itself would be illegal. 11 13. We therefore find that the Petitioner has made out no case for interfering with the allotment done in favour of Respondent No. 8. For the aforesaid reasons, petition dismissed. Rule discharged. No order as to costs. (A.A. SAYED,J.) (FERDINO I. REBELLO,J.)