Wednesday, December 7, 2022

Bombay High Court imposes Rs 1 lakh cost on petitioner for abusing the PIL jurisdiction of High Court

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The Bombay High Court has imposed cost of Rs one lakh on a petitioner, while observing that his plea, filed under the pretext for protecting ecology and environment, was an example of abuse of the PIL jurisdiction of the High Court.

The Division Bench of Chief Justice Dipankar Datta and Justice Madhav J. Jamdar noted that by the time the petition came up for hearing before the High Court, the petitioner has succeeded in achieving his extraneous and motivated purpose.

The Collector, Mumbai Suburban District under the pretext that she is complying with the directions of the High Court, demolished the crematorium of Koli Community on Erangal Beach, Malad.

“The Supreme Court, after noticing that a large number of people who are poor, ignorant or in a socially or economically disadvantaged position, were not in a position to approach the Courts to redress their grievances regarding violation of fundamental or legal rights evolved what is popularly known as PIL.

“In PIL, the Courts mainly deal with the cases seeking direction to protect fundamental rights and other legal rights of the marginalized groups and weaker sections of the society who for various reasons including poverty, illiteracy and ignorance cannot approach this Court or the Supreme Court.

“The PIL is also entertained in the cases relating to protection, preservation of ecology, environment, forests, marine life and wildlife. PILs relating to maintaining the probity, transparency and integrity in governance are also entertained by the Courts,” observed the High Court.

The Bench went on to observe that this PIL petition under the garb of protecting ecology and environment has been filed at the instance of Applicant (said resort) to protect their commercial interest and for that purpose intended to destroy legal rights of the fisherman community to use the said plot as crematorium.

The PIL is filed to destroy legal rights of weaker sections i.e. fishermen community for the purpose of securing commercial interest of said resort. The PIL petitioner and, possibly the said resort, succeeded in demolishing said crematorium through government machinery under the pretext that High Court has directed demolition of the same.

The High court further noted that pointing out the detailed site inspection report dated 18th November 2021 of Deputy Collector, General Administration, the petitioner represented to a coordinate Bench of the High Court that some unauthorised construction was progressing on the Erangal Beach situated at Erangal Village, Taluka Borivali and obtained the following order on January 7, 2022:-

“4. The ad-interim order granting stay to the further construction shall operate until further orders.

5. It is expected of the Respondent-Collector to take steps in accordance with law to comply with the directions of Respondent-MCZMA.”

The respondent – Collector acted with alarming speed and issued letters dated 18th January 2022 and 25th January 2022 and also held a special meeting on 21st January 2022 and ensured that the said crematorium was demolished on February 9, 2022 without giving any show cause notice to the affected parties viz fishermen, without affording them any opportunity of hearing and without passing any order considering their case.

Thus, under the pretext that the Collector is complying with the High Court’s direction, the said crematorium was demolished in total violation of the principles of natural justice and the provisions of law , held by the Court.

The High court said that it is settled legal position that no one shall suffer by an act of the Court.

If any illegal action is taken under the pretext of complying with the Court’s order and after noticing the true position that the structure is authorised and the same is demolished illegally the High Court is duty bound to see that corrective actions are taken and status-quo ante is restored.

While deciding a Public Interest Litigation, great care has to be taken by the Courts to ensure that PILs are not misused to sub-serve extraneous and motivated purposes.

Although the coordinate Bench has not directed that the said crematorium be demolished, however, the coordinate Bench recorded that it is expected of the Collector to take steps in accordance with law to comply with the directions of Maharashtra Coastal Zone Management Authority (MCZMA).

The factual position on record establishes following :-

(i) The land in question was allotted to the fisherman community by order dated 17th December 1955 of Sub-Divisional Officer, Thane;

(ii) It is the claim of the fishermen community that they are using the said crematorium for more than 100 years, however, at least since the year 1955 allotment of land is evident;

(iii) The said crematorium was in existence at least when Coastal Regulation Zone (CRZ) Notification dated 19th February, 1991 came in force;

(iv) In the year 2008-2009 the then MLA demanded funds for repairing the crematorium and accordingly, vide letter no.1419 dated 18th October 2008 of administrative section of the Collector Office, Bandra sanction was given and thereafter, crematorium was renovated on 2nd January 2009 by Maharashtra Housing and Area Development Authority (MHADA);

(v) The said crematorium and sheds were severely damaged due to cyclone ‘Tauktae’ in May, 2021;

(vi) There are no full height walls to the said crematorium. The walls measuring three feet height with gaps at regular intervals were constructed for supporting iron rods so that roof can be constructed;

(vii) The crematorium is in existence at least before CRZ Notification dated 19th February 1991 came into force and therefore, there is no impediment directing repairing/ reconstruction of the said crematorium;

The High Court dismissed the PIL with cost of Rs one lakh to be paid by the PIL Petitioner in equal share to respondent and directed the State of Maharashtra and Collector, Mumbai Suburban District to take immediate steps for re-construction of the crematorium.

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