Allowed

Edwin Bretto and Anr. v. State of Maharashtra and 8 Ors.

Bombay HC22 Apr 2016PIL/41/2009

Case brief

AI extract

What is this about?

Court directed State Government and Collector to take over possession of two government lakes in Borivali within four months. Ordered restoration of the wrecked small lake by demolishing illegal structures and filling in the earth, with a deadline of nine months.

What did the court decide?

Directed State/Collector to take over possession in 4 months and restore lake area by demolishing structures within 9 months.

Edwin Bretto and Anr. Vs State of Maharashtra and 8… — Environment and Pollution | Bombay HC (2016)

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ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.41 OF 2009

¶5

Edwin Britto and another ...Petitioners
vs.
The State of Maharashtra
and others...Respondents

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Mr.G.N.Salunkhe for the Petitioners
Mr.J.S.Saluja, AGP for the respondent Nos.1,2,3,8
and 9

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Mr.A.Y.Sakhare, Senior Counsel a/w Mr.A.R.Shaikh i/b
S.D.Mishra for the respondent Nos.6 and 7.
Ms Trupti Puranik for the respondent Nos.4 and 5.

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CORAM : A.S.OKA, &
 P.D.NAIK,JJ.
 DATE : APRIL 22, 2016

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ORAL JUDGMENT: (PER A.S.OKA,J.)

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1The question in this PIL is whether two lakes
in the suburban district of Mumbai admittedly
vesting in the State should be allowed to be used by
individuals? The other question is whether the act
of respondent No.6 of illegally filling in one of
the two lakes is legal? Heard the learned counsel
for the petitioners, the learned AGP for the
respondent Nos.1 to 3, 8 and 9. We have heard the
learned counsel for the respondent Nos.4 and 5. We
have also heard the learned senior counsel for the
respondent Nos.6 and 7. The issue concerns two
lakes in the city on the land bearing CTS No.1550
admeasuring 3381.60 sq meters and the land bearing
CTS No.1612 admeasuring 12,929.50 sq meters at
Village Eksar, Taluka Borivali, Mumbai Suburban
District. What is mentioned here is the area of the

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two lakes as per the City survey/Revenue records.

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2With a view to appreciate the submissions made
across the bar, it will be necessary to make a
reference to the factual aspects in some detail.
The respondent No.6 is at present a Member of
Parliament who was at the relevant time a Member of
the Maharashtra Legislative Assembly addressed a
letter dated 22ndMarch 2007 to the District
Collector of Mumbai Suburban District. In the said
letter, he has referred to the said two lakes
vesting in the State of Maharashtra. He pointed out
that there is every possibility that the area will
be taken over by the anti social elements. He,
therefore, requested the Collector to ensure that
the area is beautified. On 6th June 2007, another
letter was addressed by the respondent No.6 to the
District Collector of Mumbai Suburban District in
which he has stated that by filling in the lakes, a
Welfare Centre can be constructed. It appears that
the respondent No.6 offered to utilise the funds at
his disposal for beautification of the lakes. On
the basis of the said proposal, a note was put up
before the Revenue and Forest Department. Exhibit-C
to the petition shows that the Principal Secretary
of the Revenue Department recorded that in principle
there should not be any objection subject to
condition that the person beautifying will have no
right in respect of the lands on which the lakes are
situated and secondly, the work will be carried out
with the approval of the concerned Authorities.
Thereafter, on 6th September 2007, necessary order

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was issued by the State Government. The said order
specifically records that the small lake is situated
on the land bearing CTS No.1550 admeasuring 3381.60
sq meters and the bigger lake is situated on the
land bearing CTS No.1612 admeasuring 12,929.5 sq
meters. The State Government recorded that the
lands below the lakes be granted to the respondent
No.6 on licence basis for a period of one year
subject to terms and conditions incorporated
therein. English translation of the terms and
conditions reads thus:

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“a)The ownership/possession of the land
will be of Government only.

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b)This permission will automatically come
to an end after one year. No separate order
is required to pass for the same. There will
be no extension of the licence after the
expiry of the said permission.

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c)The Hon. MLA has to spend the expenses for
the beautification of the Talao over the said
land and for other protection through his MLA
fund only. No monetary help will be provided
by the Government.

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d)The trees and water etc over the said
land will owned by the Government only. The
board displaying the contents that “This land
owned by the Government and beautification of
this Talao/land is being carried out”. Shall
be put over the land before starting above
beautification work.

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e)The collector/Government is having all

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rights to cancel the said permission/licence
if it appears that any of the above
conditions is contravened or the said
land/pond is misused in any way. It is not
obligatory upon the government to give any
reasons for the same.

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f)The agency doing beautification work
will not have any rights over the said land.
g)The permission from the appropriate
authorities for the work will be obligatory
for concerned.”

¶26

3The said order was forwarded by the respondent
No.6 to the District Collector. Exhibit F is the
letter dated 26th May 2008 which is addressed by the
Collector of Mumbai Suburban District to the
Additional Chief Secretary (Revenue), Revenue and
Forest Department of the State Government. It
records that in view of the provisions of the Bombay
Minor Mineral Extraction Rules,1955, no work of
excavation can be carried out, and therefore, the
construction of a Social Welfare Centre and a temple
cannot be permitted. It appears that on the basis
of the order of the State Government, the Collector
passed an order dated 5th October 2007 granting
permission to the respondent No.6 to make
beautification of both the lakes by spending funds
assigned to him by virtue of being a Member of
Legislative Assembly (MLA's Fund). It specifically
records that a licence was granted to the respondent
NO.6 for a period of one year subject to terms and
conditions incorporated in the said order. Thus,

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the terms and conditions were in terms of the
conditions incorporated in the order dated 6th
September 2007 passed by the State Government.

¶29

4Thereafter, there was further correspondence
between the respondent No.6 and the Collector. A
note was put up on 3rd October 2007 before the
Revenue and Forest Department. The note was as
regards the request made by the respondent No.6 to
fill in the small lake and to make construction
thereon. It appears that the Revenue Department
decided to await for the remarks of the Urban
Development Department. Exhibit-J to the petition
shows the remarks of the Urban Development
Department. The remark of the Urban Development
Department is that the land bearing CTS No.1550 is
in `No Development Zone' and therefore, by filling
in the lake, no construction is permissible.
Therefore, the Urban Development Department left the
matter to the decision to the Revenue and Forest
Department. On 9th April 2008, another note was
prepared by the Urban Development Department
recording that the request of the respondent No.6 to
fill in the small lake and to make construction
thereon cannot be acceded to. The said note was
approved by the Hon'ble Minister for Revenue
Department. The said decision is reiterated in the
note at Exhibit-9. However, on the said note the
Hon'ble Minister of the Revenue Department, on 21st
July 2008 made an endorsement that no objection be
granted as per the available FSI. The said decision
was communicated by the State Government in Revenue

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Department to the District Collector by a letter
dated 2nd August 2008. On the basis of the said
letter, the Collector issued a formal order on 22nd
October 2008 permitting construction as per the
available FSI of 0.04 which was available to `No
Development Zone'. On 24th November 2008, a letter
was addressed by the Collector of Mumbai to the City
Survey Officer, Borivali informing him that the
period of one year granted to the respondent No.6
has expired on 4th October 2008 and therefore, the
possession of the land will have to be taken over
and handed over to the Mumbai Municipal Corporation.
Exhibit-X is the possession receipt dated 16th
December 2008 signed by the Surveyor which records
that the Assistant Commissioner of Mumbai Municipal
Corporation of R/Central ward took over the
possession of the lands bearing CTS Nos.1550 and
1612. It appears that the present petitioners
addressed a letter dated 30th December 2008 to the
various Officers of the State Government, to the
Municipal Commissioner and to the Hon'ble Minister
of the Revenue Department pointing out that various
illegalities have been committed by the respondent
No.6 which are set out in the said letter. The
present PIL is filed seeking a writ of mandamus
directing the Authorities to restore both the lakes
and to demolish the construction carried out by the
respondent Nos.6 and 7. The respondent No.7 is a
private Gymkhana by the name M/s.Poisar Gymkhana. A
declaration is claimed that various permissions
granted to the respondent No.6 are nullity. A
direction is sought against the respondent Nos.1 to

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5 directing to take over the said land.

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5Various orders were passed by this Court from
time to time. On 24th March 2011, Rule was issued by
the First Court. The said order records the
statement of the learned counsel for the respondent
No.7 that since the Mumbai Municipal Corporation is
not ready to maintain the garden, the respondent
No.7 will maintain the garden at its own costs.
Clause 4 of the said order reads thus:

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“4It is directed that even though the
bigger lake and the surrounding area of the
garden are being maintained by the respondent
No.6 at his own cost, all the members of the
public shall have access to the said lake,
surrounding area and the garden which shall
be permitted to be used only as garden and
children park area, without charging any
fees, from 6.00 a.m to 10.00 p.m.”

¶38

6There are various affidavits filed on record.
The first affidavit is by Shri Bapurao R. More, the
Assistant Engineer of the Mumbai Municipal
Corporation. In the said affidavit, the stand taken
is that the possession of both the lands has not
been handed over to the Mumbai Municipal Corporation
and both the lands vest in the Collector. It also
records that the Mumbai Municipal Corporation has
not granted any permission to develop the said lands
and the request for grant of permission was
rejected. Reliance is placed on the letter dated 7th

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may 2009 addressed by the Assistant Commission of
R/Central Ward to the Maharashtra Housing and Area
Development Authority (for short “MHADA”) regarding
refusal to grant permission to construct Samaj
Mandir. Similarly, by a separate letter issued by
the Assistant Engineer on the same date to MHADA, a
permission was refused to carry on construction of
toilet blocks.

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7There is a reply filed by the respondent No.6.
It is contended that the work of beautification is
complete and the area was open for public use on 30th
May 1990. In paragraph 11 of his affidavit, the
respondent No.6 has stated thus:

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“11I say that since the Corporation has
refused to accept and take the possession of
the said plot of land which is completely
beautified in all respect and which is
inaugurated for public use on 30.5.90,
therefore, the question arise as to who is
going to maintain the said beautified Talao
which is now known as Children's Park and
Jogger Trek. Therefore, the same is for the
time being given for administration and
maintenance to the respondent No.7 and as it
required the daily expenses for its
maintenance and for meeting to those
maintenance expenses as it is the practice of
the Corporation to allot such public garden
and joggers park, jogger trek to maintain and
for that purpose allow to collect a minimum

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entry fee from the public and as such the
said respondent no.7 is collecting Rs.2/-
from the general public excluding the Senior
citizens and the children.”

¶46

8It is contended that the petition has been
filed to defame him. In paragraph 3 of the
affidavit, he accepted that there were two lakes.
It is contended that the smaller lake has
practically vanished. The photographs of the
beautification work done have been annexed to the
said affidavit. There is an affidavit in rejoinder
filed by the petitioners. It is stated therein that
in fact the small lake did not vanish but it was
destroyed by the respondent Nos.6 and 7. The
Petitioners contend that even the area of the
bigger lake was reduced. Reliance is placed on the
Google image and certain photographs showing that
the smaller lake was destroyed.

¶47

9There is an affidavit of Shri Vijay Lokhande,
the Deputy Engineer of MHADA in which he has stated
that the beautification permission was granted by
the MHADA in view of administrative approval given
by the Collector. He has stated that the decision
regarding the restoration of the smaller lake has to
be taken by the State Government. There is an
affidavit filed by Shri Vijay Kamble, the Assistant
Commissioner of R/Central Ward of the Municipal
Corporation in which it is reiterated that both the
lands are not placed in possession of the Mumbai
Municipal Corporation and no objection certificate

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of the said Corporation was not obtained before
carrying out the work of beautification. It is
stated that the work has been carried out under the
permission of MHADA. Therefore, restoration work
has to be carried out by the MHADA. There is
further affidavit filed by Shri Vijay Lokhande, the
Deputy Engineer of MHADA. In the said affidavit, it
is stated that the MHADA has constructed only one
toilet block. It is stated that the construction of
the Samaj Mandir Hall and the Library etc is not
carried out by the MHADA. He stated that he was not
in a position to tell as to who permitted the said
construction. There is another affidavit filed by
the respondent No.6 which is dated 7th March 2011.
In clause (ii) of paragraph 4 of the said affidavit,
the respondent No.6 has stated thus:

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“(ii)I say that I had produced before
this Hon'ble Court a Pamphlet published by
College Bachav Committee, having its office
at Shimpoli Borivli, of which Smt.Meera
Kamat is the Secretary and she is the party
worker of the Nationalists Congress Party
(NCP) and of which the petitioner's Advocate
Mr.Salunkhe is the legal adviser of the said
committee and resident of the Borivali area.
In this Pamphlet a reference to the
litigation of the present petition is
mentioned, and in which myself has been
described as “Liar Cunning MLA” (Aasa labaad
bolanaara Amdaar kiti divas aapalyavar
raajya karnaar, i.e. such a liar cunning MLA

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for how many days will rule over us). This
pamphlet has been distributed in my entire
constituency inside the morning newspapers.
Once of such pamphlet is also delivered at
my residence inside the Times of India
Newspaper.”

¶53

10It is further stated as to what transpired in
the meeting held by the petitioners and the Advocate
for the petitioners. The contention is that the
petition has been filed for taking undue political
advantage.

¶54

11The submission of the learned counsel for the
petitioners is that at no stage a permission was
granted to fill up the lakes and to make any
construction thereon. His submission is that licence
granted to the respondent No.6 has expired way back
on 4th October 2008. He pointed out that the
respondent No.7 has no locus and the respondent No.7
has not only taken possession but is also charging
entry fee to the members of public notwithstanding
clause 4 of the interim order dated 24th March 2011
passed in this PIL. He submitted that both the lands
will have to be taken over by the the State
Government or the Mumbai Municipal Corporation and
that the lakes will have to be restored after
demolition of the illegal structures, if any. The
learned senior counsel for the respondent Nos.6 and
7 invited our attention to the photographs annexed
to the affidavit of the respondent No.6 which are
from page 185 onwards. According to him there is a

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lawn and that garden equipments are in place where
the smaller lake was earlier in existence. We have
also heard the learned counsel for the Mumbai
Municipal Corporation and the learned AGP for the
State.

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12We have carefully considered the submissions.
Following are the admitted facts:

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(a) the land bearing CTS No.1550 admeasuring
3381.60 sq meters and the land bearing CTS
1612 admeasuring 12,929.5 sq meters were
having two lakes and the said lands are
vesting in the State Government;
(b) On 6thSeptember 2007, the State
Government passed an order permitting the
respondent No.6 to use the said lands on
licence basis only for a period of one year
only for the purposes of beautification of
the lakes by spending funds from the MLA's
fund. The said order records that after
expiry of period of one year, permission will
not be extended. There is one more condition
of displaying a board in the front side that
the State Government is the owner. Another
condition was imposed was of taking
permission of the Competent Authority before
carrying out the work of beautification;

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(c)It appears that a proposal was submitted
by the respondent No.6 seeking permission to
fill up the smaller lake and to construct
cultural centre, Samaj Mandir etc thereon;

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(d) Initially, both the Urban Development
Department and the Revenue Department were of
the view that no permission can be granted to
carry on construction. However, on the basis
of the note dated 21st July 2008 of the
Hon'ble Minister of Revenue that the
construction be permitted as per the
permissible FSI, that an order was issued by
the State Government on 2nd August 2008
permitting construction to the extent of FSI
of 0.04. The said order records that after
the period of licence expires, the land
together with the structures thereon shall be
taken over by the District Collector and
thereafter, it should be placed in possession
of the Mumbai Municipal Corporation for
maintenance. On the basis of the said order,
on 22nd October 2008, the District Collector
passed an order permitting utilization of the
said FSI subject to various conditions. A
specific condition was imposed that a
permission should be obtained from the Mumbai
Municipal Corporation for construction;

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(e) Admittedly, the respondent No.6 did not
obtain any such permission either from the
Mumbai Municipal Corporation or from the
MHADA;

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(f) Neither the order of the State Government
dated 22nd October 2008 nor the order of MHADA
permitted the respondent No.6 to fill in the
small lake,

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(g)In the letter dated 22ndMarch 2007

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addressed by the respondent No.6 to the
District Collector, he has specifically
stated that there were two lakes in
existence. Thus, as on 22nd March 2007, to
the knowledge of the respondent No.6, both
the lakes were in existence. In the letter
dated 6th June 2007 addressed by him to the
District Collector, the respondent No.6 has
again accepted that the small lake
admeasuring 3381.60 was in existence and by
doing the work of filling the said lake, the
Welfare Centre can be constructed. The order
dated 6th September 2007 passed by the State
Government and consequent order dated 5th
October 2007 passed by the Collector,
specifically record the existence of both the
lakes. The respondent No.6 acted upon both
the orders. Notwithstanding this factual
position, in the affidavit in reply filed in
August 2009, the respondent No.6 in paragraph
3 has claimed that due to passage of time and
nature change, the smaller lake practically
vanished. Thus, the said statement made by
the respondent No.6 appears to be completely
incorrect;

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(h) Moreover, at no stage, the period of
licence of one year which expired on 4th
October 2008 was extended by any authority.
Another admitted position is that though
there is no permission granted by the State
Government or by any Authority, the
respondent No.6 allowed the respondent No.7

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which is a club to manage the whole show and
the respondent No.7 started maintaining both
the lands. Firstly, the respondent No.6 has
no right, title or interest in respect of
both the lakes and the lands. The licence
granted to the respondent No.6 expired long
back in 2008. Thirdly, there was no
permission granted by any Authority to fill
up small lake and lastly, there was no
permission granted by the Mumbai Municipal
Corporation or MHADA to carry out any
construction on the said lands.

¶74

13Now, it will be necessary to make a reference
to the directive principles of the State Policy
incorporated in part 4 of the Constitution of India
and in particular Article 48-A which reads thus:

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“48-A. Protection and improvement of
environment and safeguarding of forests and
wild life-

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The State shall endeavour to protect and
improve the environment and to safeguard the
forests and wild life of the country.”

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14The lakes are essential and important part of
our environment. Therefore, it is the duty of the
State to protect the lakes. More importantly, part
IVA containing fundamental duties of the citizens
was incorporated by way of amendment with effect
from 3rd January 1977. Clause (g) of Article 51 A
reads thus:

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“(g)to protect and improve the natural
environment including forests, lakes, rivers
and wild life, and to have compassion for
living creatures.”

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 (emphasis added)

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15Thus, every citizen is duty bound to protect
the lakes as it is the fundamental duty of every
citizen to protect the lakes. It becomes collective
duty of the State Government to protect the lakes.

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16The Apex Court has repeatedly held that a
citizen has a right to live in a pollution free
environment. This right is an integral part of
Article 21. The lakes form an essential part of our
environment. On this aspect, the learned counsel
for petitioners has relied upon the decision of the
Apex Court in the case of Hinch Lal Tiwari vs. Kamla
Devi and others1. Paragraph 13 of the said decision
reads thus:

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“13It is important to notice that the
material resources of the community like
forests, tanks, ponds, hillock, mountain etc
are nature's bounty. They maintain delicate
ecological balance. The need to be protected
for a proper and healthy environment which
enables people to enjoy a quality life which
is the essence of the guaranteed right under

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Article 21 of the Constitution. The

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1 2001 (6) SCC 496

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Government, including the Revenue Authorities
i.e Respondents 11 to 13 having noticed that
a pond is falling in disuse, should have
bestowed their attention to develop the same
which would, on one hand, have prevented
ecological disaster and on the other provided
better environment for the benefit of the
public at large. Such vigil is the best
protection against knavish attempts to seek
allotment in non-abadi sites.”

¶90

(underline supplied)

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17Apart from the Directive Principles of the
State Policy and the fundamental duty under clause
(g) of Article 51-A, the Apex Court has held that
material resources of the Community like forests,
tanks, ponds, hillock, mountain are nature's bounty
which maintain delicate ecological balance. The Apex
Court has laid down that there is a need to protect
the forests, tanks, ponds, hillock, mountains which
enable the people to enjoy the quality life which is
essence of the right guaranteed under Article 21 of
the Constitution of India. In a very thickly
populated and congested suburbs of Mumbai, lakes
play a very crucial role in maintaining ecological
balance.

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18Therefore, it is the obligation of the State to
ensure that both the lakes must continue to exist.
Therefore, there is no option for the State to take
immediate action of restoration of the lakes which

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were admittedly in existence at least in the year
2008. It is obvious that the smaller lake did not
vanish automatically as contended by the respondent
No.6. When the respondent No.6 was granted a licence
for a period of one year on 5th October 2007, even
the smaller lake was very much in existence. It is
obvious that while carrying out so called work of
beautification, filling work was done which led to
disappearance of the small lake.

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19It is is true that the area around the bigger
lake has been beautified by spending the funds out
of MLA's Fund. Nevertheless, neither the respondent
No.6 nor the respondent No.7 can claim any right
over the lands and the lakes. If the respondent
No.7 wants to continue to remain in possession,
needless to add that the respondent No.7 will have
to make an application to the Collector/State
Government for grant of necessary permission.
Needless to add that the area of both the lakes will
have to be restored by the State Government.
Therefore, in the event the Collector of the State
Government decides to grant permission to the
respondent No.7, it will have to be with the
condition of restoration to its original condition
and of demolition of structures which were
constructed without obtaining permission of the
Mumbai Municipal Corporation.

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20It is true that the respondent No.6 has raised
a contention regarding the locus of the petitioners.

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A gross illegality is brought on record. One small
lake vesting in the State vanished because of the
filling work done by the respondent No.6. The
respondent No.7 continues to remain in possession of
both the government lands though the same were never
allotted to it. Therefore, the possession was
illegally parted with by the respondent No.6 without
permission of any Authority. The smaller lake has
been illegally destroyed. Both the lands are
admittedly government lands which are being
illegally possessed by the respondent no.7.
Therefore, even assuming that the petitioners have
no locus, it was the duty of the Court to entertain
this PIL as a Suo Motu PIL. The respondent No.6 has
utilized the MLA's Fund allotted by the State
Government for this illegal work. No illegality can
be committed by utilizing the fund of the State
Government on the lands and lakes vesting in the
State Government in this fashion.

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21As far as the issue regarding placing the
Mumbai Municipal Corporation in possession of the
lakes is concerned, it is the matter to be sorted
out by the State Government and/or the District
Collector as the lands are vesting in the State
Government.

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22Therefore, the PIL must succeed. Hence, we pass
the following order:

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(I)We direct the State Government and the
Collector of Mumbai Suburban District to take

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over possession of the lands bearing CTS
No.1550 admeasuring 3381.60 sq meters and CTS
No. 1612 admeasuring 12,929.5 sq meters at
village Eksar, Taluka Borivali, Mumbai on
expiry of period of four months from today;

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(II)We direct the State Government and the
Collector to restore the original area of both
the lakes by demolishing the construction
carried out without obtaining permission of the
Mumbai Municipal Corporation and by carrying
out digging work, if necessary;

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(III) It will be open for the respondent No.7 to make an application to the District Collector for grant of permission to look after and maintain the lands and lakes thereon;

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(IV) If such application is made within a period of eight weeks from today, the Collector and/or State Government shall take appropriate decision thereon within a period of six weeks from the date on which the application is made;

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(V) We make it clear that if the State Government and/or the Collector decides to grant permission to the respondent No.7, a condition shall be imposed to restore both the lakes to its original position by demolishing all the structures made without obtaining the permission of the Mumbai Municipal Corporation and by carrying out necessary digging work;

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(VI) Needless to add that if such application is not made by the respondent No.7 within a period of eight weeks from today, or if the application made by the respondent No.7 is

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rejected, on expiry of period of four months
from today, the State Government shall take
over possession of both the lands as directed
above and thereafter shall take steps for
restoration of the lakes as directed above;

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(VII)We make it clear that the State Government
shall ensure that the work of restoration of
both the lakes shall be completed within a
period of nine months from today;

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(VIII)Rule is made absolute on above terms;

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(IX) Pending Notice of Motion does not survive

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and the same is disposed of.

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(P.D.NAIK,J.)(A.S.OKA,J.)

Edwin Bretto and Anr. v. State of Maharashtra and 8 Ors.

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Edwin Bretto and Anr. v. State of Maharashtra and 8 Ors.

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