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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & A.A. SAYED, JJ.
Society for Fast Justice, through its President Ashish Mehta and Another – Petitioners
Versus
The State of Maharashtra and Others – Respondents
Public Interest Litigation No. 104 of 2010
Decided On : 01-10-2016
PUBLIC INTEREST LITIGATION - Failure of State Government and Mumbai Municipal Corporation in taking action of demolition of several illegal religious structures/shrines. No religion encourages illegality. No religion preaches that worship or prayer should be offered in illegally constructed place of religion. The material on record shows that there are large number of illegal religious structures constructed in the State. The illegal shrines have been erected by the persons belonging to all religions, and therefore, we make it clear that we are dealing with the illegally constructed places of religion/shrines of all the religions and sects.
Fact of the Case:
A very important issue is raised in this Public Interest Litigation. The issue is regarding the failure on the part of the State Government and the Mumbai Municipal Corporation in taking action of demolition of several illegal religious structures/shrines. No religion encourages illegality. No religion preaches that worship or prayer should be offered in illegally constructed place of religion. The material on record shows that there are large number of illegal religious structures constructed in the State. The illegal shrines have been erected by the persons belonging to all religions, and therefore, we make it clear that we are dealing with the illegally constructed places of religion/shrines of all the religions and sects.
Finding of the Court:
The Court found that there was hardly any implementation of the Government Resolution dated 5th May 2011 (GR) issued by the State Government. The Court also found that the State Government had not taken any steps to implement the directions issued by the Apex Court in the case of Union of India v. State of Gujarat and Others, Special Leave Petition No. 8519 of 2006.
Issues: 1. Failure of the State Government and the Mumbai Municipal Corporation to take action to demolish illegal religious structures/shrines. 2. Non-implementation of the Government Resolution dated 5th May 2011 (GR) issued by the State Government. 3. Non-compliance with the directions issued by the Apex Court in the case of Union of India v. State of Gujarat and Others, Special Leave Petition No. 8519 of 2006.
Ratio Decidendi: 1. The Court held that the State Government and the Mumbai Municipal Corporation had failed to take action to demolish illegal religious structures/shrines, which was a violation of the fundamental rights of the citizens under Article 21 of the Constitution of India. 2. The Court also held that the State Government had not implemented the GR dated 5th May 2011, which was a violation of the directions issued by the Apex Court in the case of Union of India v. State of Gujarat and Others, Special Leave Petition No. 8519 of 2006. 3. The Court further held that the State Government had not taken any steps to prevent the construction of new illegal religious structures/shrines, which was a violation of the public trust doctrine.
Final Decision: The Court directed the State Government to take immediate action to demolish all illegal religious structures/shrines constructed after 29th September 2009. The Court also directed the State Government to complete the exercise of identifying and categorizing all illegal religious structures/shrines constructed prior to 29th September 2009 within a period of six months. The Court further directed the State Government to take appropriate action to prevent the construction of new illegal religious structures/shrines.
A.S. OKA, J.
OVERVIEW AND FACTUAL ASPECTS
1. A very important issue is raised in this Public Interest Litigation. The issue is regarding the failure on the part of the State Government and the Mumbai Municipal Corporation in taking action of demolition of several illegal religious structures/shrines. No religion encourages illegality. No religion preaches that worship or prayer should be offered in illegally constructed place of religion. The material on record shows that there are large number of illegal religious structures constructed in the State. The illegal shrines have been erected by the persons belonging to all religions, and therefore, we make it clear that we are dealing with the illegally constructed places of religion/shrines of all the religions and sects.
2. The Petitioners had earlier filed a Public Interest Litigation being PIL Writ Petition No. 2063 of 2002 for inviting attention of this Court to the fact that no action of demolition was taken in respect of more than 1,100 illegal religious structures erected on the public roads, footpaths/footways in the city of Mumbai. Under the interim orders of this Court, some of the illegal structures were demolished. In fact, the order dated 3rd August 2006 passed by this Court records a statement of the learned counsel appearing for the Mumbai Municipal Corporation that 1,015 unauthorised illegal shrines were demolished by 31st June 2006. Ultimately, by an order dated 24th August 2006, the earlier PIL filed by the Petitioners was disposed of by a Division Bench of this Court. This Court referred to the adinterim order dated 20th November 2003 passed by the First Court under which illegal shrines were ordered to be demolished. The said order dated 20th November 2003 provides that in case re-erection takes place, the Mumbai Municipal Corporation is entitled to demolish the same without notice. This Court also noted that there were illegal shrines on the roads belonging to the Maharashtra Area Development Authority (MHADA), Mumbai Metropolitan Regional Development Authority (MMRDA), Bombay Port Trusts (MBPT) and other public authorities. By recording the assurances given by the Municipal Commissioner to give assistance by providing manpower and machinery to the said authorities for demolishing the illegal shrines and by continuing the earlier directions issued from time to time, the Writ Petition was disposed of. Therefore, the order dated 20th November 2003 which directed the Mumbai Municipal Corporation to demolish the illegal shrines continues to be in force.
ORDERS PASSED BY THE APEX COURT ON THE SUBJECT
3. It is necessary to make a reference to the orders passed by the Apex Court in the pending Suo Moto Special Leave Petition before the Apex Court. In view of the pendency of the Suo Moto Special Leave Petition (Union of India v. State of Gujarat and Others, Special Leave Petition No. 8519 of 2006), before the Apex Court, the scope of this Petition has been considerably restricted in relation to the illegal construction of religious structures on the streets and public properties. The order dated 29th September 2009 passed by the Apex Court in the said Petition notes that on 25th March 2008, it took a note of a news item published in Times of India, Ahmedabad Edition, recording that there were 1200 temples and 260 Islamic shrines constructed by encroaching upon public places. It records that a letter dated 19th September 2009/23rd September 2009 of the Home Secretary of the Government of India addressed to the learned Solicitor General of India was taken on record. Relevant portion of the said letter as quoted in the said order reads thus:
“I had taken a meeting with the Chief Secretaries of the States on 17.09.2009 with a view to evolve consensus on the problem of encroachment of public spaces by religious structures. I am glad to report that after the meeti
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