1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 721 OF 2008 SAHAR MUSLIM WELFARE SOCIETY & Ors. .. .. Petitioners. vs. MUNICIPAL CORPORATION of Greater Mumbai & Ors. .... Respondents. Mr. R.A. Dada, Sr. Adv., i/by G.C. Singh for the Petitioners. Ms. S.M. Mondle for Respondent No.1 Mr. D.A. Nalawade, GP., for Respondent No. 2. Mr. G.S. Kulkarni with Mayur Shetty i/by M.V. Kini & Co. for Respondent No. 3. Mr. P.K. Samdani, Sr. Adv., with B.B. Saraf i/by Wadia Ghandy & Co. for Intervenor. 2 CORAM : J.N. PATEL, & SMT. V. K. TAHILRAMANI, JJ. DATE : 19th MARCH, , 2009. P.C. : . Heard the learned counsel for the parties. 2. This petition is disposed of at the stage of admission itself. 3. The petitioner society has filed this petition by invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India when they found that the land reserved for burial i.e. Survey No. 99 of Village Sahar and meant for Muslim Cemetery is not made accessible to them. 4. It is the case of the petitioners that they are a registered society. It is in the year 1968 to be particular on 11.10.1968 the respondent no. 1 vide Resolution No. 716 3 reserved the land for Hindu Cemetery on which the Muslim Community made a representation and brought it to the notice of Respondent No. 1 that there is no cremation ground for their community. Therefore, 2,000 sq. mtrs of land of Village Sahar be reserved for Muslim Cemetery. Shri Pratap M. Indulkar, the then Municipal Councillor on 10.2.1970 requested the B.M.C., now M.C.G.M., for providing land for cemetery for the Muslim in Andheri (E). The matter was taken up for consideration and ultimately on 24.04.1975 the President of Muslim Jamat at Chakala was informed by the Senior Ward Officer that in their Development Plan of K Ward provision has been made for Muslim Cemetery for the use of Muslim Community and by a further communication dated 03.07.1972, the Executive Health Officer informed them that the detailed lay out of central Cemetery to be constructed at Chakala, Andheri (E), was being finalized. The President of the Muslim Cemetery approached the then Hon'ble Minister for Finance and Urban Development, Government of Maharashtra with a representation that the land for Muslim Cemetery is urgently required. On 3.1.1981, the then Municipal Commissioner informed Ms. M. Fatima I. 4 Khan that necessary acquisition proceedings have already been initiated for acquisition of the land reserved for cemetery. The matter was taken at the highest level by the State Government and also with the Minister for Tourism and Civil Aviation, Government of India, New Delhi for handing over the land admeasuring about 8000 sq. mtrs., for Muslim Cemetery. It is after the concerted efforts of all concerned, that the land in question that is the subject land came to be earmarked in the development plan of K/E Ward bearing CTS No. 422 of Village Sahar for public purpose for Buddhist and Muslim burial ground which abuts 13.40 mtrs. wide proposed D.P road possession of which was given to Respondent no. 4. It so happened that the same could not be utilized due to the objection raised by the Airport Authority of India for handing over the access road to the cemetery. 5. With the passage of time, the Chhatrapati Shivaji International Airport was taken over by Mumbai International Airport Pvt. Ltd., on lease and, therefore, on 17.4.2008 a letter was written to the General Manager , Mumbai International Airport Pvt. Ltd., by Chief Engineer 5 (D.P.) and by Asstt. Commissioner K/E ward of respondent no. 1 requesting him to provide suitable access to the land delignated for cemetery in the development plan. 6. The petitioners did not join the said company as a party respondent who have sought intervention in the matter and have been permitted to intervene. The respondents have filed their reply. Respondent No. 3 and the Intervenor have filed their affidavits in reply. So far as respondent no. 1 is concerned, i.e. M.C.G.M., they have expressed their helplessness as the intervenor i.e. The Mumbai International Airport Pvt. Ltd., have failed to abide by their request made by referring to D.C. Regulation 22 (2) clause 5 which reads as under :- “ In the case of a plot, surrounded on all sides by other plots i.e., a landlocked plot which has no access to any street or road, the Commissioner may require access through an adjoining plot or plots which shall as far as possible be nearest to the street or road to the landlocked plot, at the cost of owner of the 6 landlocked plot and such other conditions as the Commissioner may specify.” It is the case of the respondent no. 1 that though such a communication has been issued to the Intervenor, the Intervenor has not taken any steps in the matter. It is the case of the Respondent no. 3 that as the land is owned by the Airport Authority of India, they are not willing to provide access to the petitioners so also is the stand taken by their lessees i.e., the Intervenor Mumbai International Airport Pvt. Ltd., 7. The undisputed facts are that the subject land still is reserved for Muslim Cemetery which has no access and in spite of the fact that the M.C.G.M., has invoked Rule 22 (5) of the D.C. Rules the respondent Airport Authority of India as well as the intervenor Mumbai International Airport Pvt. Ltd., who are now their lessees have refused to grant permission to the petitioners to have access to use the land reserved for Muslim Cemetery. On behalf of the intervenor various contentions have been raised before us and it has 7 been stated in their affidavit that the petitioners are not entitled to any relief particularly in the back-drop that the small portion of a plot of land in the middle of the Airport land is not by any yard stick suitable or desirable for being used as a cemetery. The reservation has become obsolete and cannot be allowed to be implemented in view of the fact that the Airport is being renovated and developed. It is further stated that the cemetery is within the Airport operation boundary and it poses a permanent bird hazard and risk to the safety of passengers and aircrafts as the cemetery has also been reserved for the Buddhist community who burn their dead and have raised several contentions in support of their case to the extent of claiming that the Airport Authority of India or their lessees cannot be deprived of their land except in accordance with law under Article 300(1)(A) of the Constitution of India. 8. The Court can also take judicial notice that most of the land owned by Respondent No. 3 is encroached and except for correspondence with the concerned authorities, the Airport Authority of India has not taken any concrete 8 steps at all to prevent the encroachment or to remove them for the reasons best known to them nor the M.C.G.M., which is the local planning authority or the State Government has taken cognizance of this fact at any time though in between certain steps were taken to remove encroachments, but they failed to take the matter to its logical end. 9. The Respondent No. 3 and the Intervenor have misconstrued that the petitioners are claiming the land for their use and occupation which may necessitate acquisition. What the petitioners are claiming is only access to the land which is reserved for Buddhist and Muslim Cemetery so that it can be put to use considering the pressing need as all around the place there is a large number of hutments constructed by encroachers which is occupied by persons belonging to all faiths and religions. Most of the encroachments and hutments are on the land owned by Airport Authority of India and the very presence of human population on the land belonging to Airport Authority of India by itself poses danger to the operation of the Airport. The stand taken by the intervenor that if access is provided it 9 would cause safety hazards for operation of Airport including landing and taking off of the aircrafts is a problem which is already present there and by making the access for burial ground available would not add to any further problems and the plea taken that it is a security risk cannot be entertained on this count. Further, by allowing mushroom growth of slums on the Airport land except for certain feeble attempt on the part of Respondents, to contain it, they have waived and abandoned their rights. Therefore, now they cannot be heard on the issue of clear and present danger posed by it to the airport and its flight operations. 10. We find no reason why the Municipal Commissioner who in his wisdom has issued the notice to the intervenor to provide the access to the petitioners so that they can use the Muslim Cemetery cannot be enforced. 11. The learned counsel appearing for the Respondents particularly the Airport Authority of India and the Intervenor have tried to contend that the reservation can be changed and the land can be reserved for Buddhist and 10 Muslim cemetery at other convenient location for which they are even ready to pay. But that is not the relief sought for in the writ petition. The land which is reserved for Buddhist and Muslim cemetery admittedly belongs to respondent no. 1. In their wisdom they have reserved it for Buddhist and Muslim cemetery fully knowing well that it is a landlocked plot of land. Their development plan has been approved by the State of Maharashtra. Until today there is no proposal under the active consideration of the State Government for intervening in the matter by taking steps to modify the development plan in respect of the subject land and release it from the reservation for Buddhist and Muslim cemetery and notify some other suitable land. On the other hand what we find from the pleadings is that the subject land came to be reserved for Buddhist and Muslim cemetery after due deliberation and with the active support of the State of Maharashtra and on representations made by these communities. It is a well settled law that the Court in its extraordinary jurisdiction under Articles 226 and 227 cannot interfere with the policy and planning undertaken by the local planning authority and the State Government who are 11 the sole repository of providing a development plan for the town. It is for these authorities to consider the problems which are being faced by respondent no. 3 and now their lessees i.e., the intervenors and it is none of our business in a writ petition filed by the petitioners to give advice to the local planning authority as well as the State Government. We, therefore, dispose of this petition with a direction to respondent no. 1 to provide access to the petitioners to enable them to make use of the land reserved for Buddhist and Muslim cemetery within a reasonable time preferably within six months so that the land can be put to use for which it has been reserved under the development plan. 12. The writ petition stands disposed of in the aforesaid terms with cost. Cost to be paid by respondent no. 1. (J.N. PATEL, J.) ( SMT. V. K. TAHILRAMANI, J.) 12