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2018 Supreme(Bom) 1348
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ABHAY S. OKA, RIYAZ I. CHAGLA, JJ.
Mr. Pankaj Babulal Kotecha - Petitioner
Versus
Municipal Corporation of Greater Mumbai & Ors. - Respondents
Public Interest Litigation No. 6 of 2013
Decided On : 03-08-2018
For the Petitioner: Mr. P.M. Havnur
For the Respondent: Mr. Anand Wadgaonkar a/w Ms. Shital Mane, Mr. Milind More
Headnote:
Constitution of India,1950 - Article 48A - Illegal construction has been carried out with public funds - Unauthorized and illegal expenditure for illegal construction on subject plot - Petitioner has sought directions against Respondents to demolish illegal construction that has been done on subject plot Tank Road by filling in years old Lake referred to incorrectly as Pond in this Petition and for restoration of Lake - Petitioner has also sought necessary direction to Chief Secretary State of Maharashtra for conducting an enquiry into unauthorized and illegal expenditure for illegal construction on subject plot and to take action in accordance with law against erring officers public representatives and recover amount from them as well as initiate prosecution against all concerned – Held, People State of which is also known world over as God’s Own Country are very much conscious of imperative protecting environment and ecology in general and water bodies - Rivers and lakes in particular which are integral part of their culture heritage and an important source of livelihood - This appeal is illustrative of continuing Endeavour of people State to ensure that their rivers are protected from all kinds of manmade pollutions and other devastations - Supreme Court has in so observing allowed Writ Petition filed by Appellant and directed Respondents to demolish structure raised for establishing restaurant as part of renovation and beautification - From above decisions it is clear that State being trustee on behalf of people is enjoined to protect and preserve natural resources which would include water bodies such as Lakes and allow public interrupted use thereof – Court find that in present case Respondents have failed in their duty as trustee to protect and preserve said Lake for benefit of public who were entitled to uninterrupted use thereof – Court find that Respondent Corporation has illegally constructed on said Lake by having it filled up – Court are of view that Respondent State could not have granted post facto sanction to such illegal construction carried out by Respondent Corporation - There has in fact been breach post facto sanction granted by State Government which was for beautification of said Lake and not for change of user of subject plot – Court find that State Government has failed to take action against those concerned for illegal construction including to have subject plot transferred back to State - It is thus necessary in circumstances of case to invoke public trust doctrine and protect right of people to said Lake by ordering its restoration - This Public Interest Litigation must accordingly succeed – Hence court pass following order – Order accordingly
Riyaz I. Chagla, J.
1. This Petition has been filed in public interest. The Petitioner is an Indian citizen, resident of Mumbai City. The Petitioner has sought directions against the Respondents to demolish the illegal construction that has been done on the subject plot i.e. CTS No. 417, at Khajuria Tank Road, Kandivali by filling in the 100 years old Khajuria Lake (referred to incorrectly as “Khajuria Pond” in this Petition) and for restoration of the Khajuria Lake. The Petitioner has also sought a necessary direction to the Chief Secretary, the State of Maharashtra for conducting an enquiry into the unauthorized and illegal expenditure for the illegal construction on the subject plot and to take action in accordance with law against the erring officers, public representatives and recover the amount from them as well as initiate prosecution against all concerned.
2. The Petitioner had on 6th September 2012 come across a report in the Times of India that the Khajuria Lake situated at Kandivali (West) which is more than 100 years old was illegally filled in by the Respondent No. 1-Corporation. The Petitioner claims to have made enquiries from which the Petitioner claims to have learnt that the illegal construction was done at the behest of one Shri. Yogesh Sagar, a member of a political party when he was a local Councilor and who is now a Member of the Legislature Assembly from the constituency where the said Khajuria Lake is situated. The Petitioner claims that the illegal construction was done in collusion with the Respondent No. 1Corporation and another Corporator Shri. Baldev Singh Manku. The Petitioner has stated that when he visited the Khajuria Lake, it was completely filled and a garden has been constructed on the subject plot. The Petitioner states that illegal construction on the subject plot was done without taking permission of the Collector. The Bhoomi Pujan of the garden was done in the year 2010 and thereafter, a musical water fountain was constructed there. The municipal garden was opened on the subject plot in December 2011.
3. The Petitioner has stated that the said Khajuria Lake originally belonged to Vithaldas Mathurdas and other heirs of Khimji Vallabdas Trust Estate and was given to them by the Government in return for their land near old Kandivali Station.
4. The Petitioner has stated that the said Lake now belongs to the Collector and this is reflected in the 7/12 extract and 6/12 extract. The Petitioner further states that the news of filling of the said Lake has appeared in other newspapers and the Petitioner has relied upon the same. The Petitioner states that the Khajuria Lake was used for immersing Ganesh idols during Ganesh Festivals. The said Lake also contained various types of rare fish, tortoise and different types of birds used to come to the mangroves existing therein. It is the Petitioner's case that the Talathi has visited the said Lake and a panchanama was done. The Talathi appears to have also been surprised at the filling of the said Lake as this has been done without any permission taken.
5. It is the Petitioner's case in the Petition that there are no documents reflecting the handing over of the subject plot to the Respondent No. 1-Corporation. The Petitioner states that the subject plot to his knowledge was not handed over to the Respondent No. 1 Corporation and despite which the illegal construction has been carried out with public funds. The Petitioner has also addressed a representation to the concerned authorities, but no action was taken against the unauthorized construction. It appears from the Petition that it came to the Petitioner's knowledge under the Right To Information Act, 2005 that the original owners of the subject plot had addressed correspondence to the Tahasildar, Borivali, Mumbai and Shri. Yogesh Sagar, the then Councilor bringing it to their notice that the original owners had objected to filling up of the said Lake which is a natural Lake. The Petitioner has
