IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 874 OF Anita Dattatray Dhole and 6 Ors.

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1 Sharayu Khot. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 874 OF 2018 Anita Dattatray Dhole and 6 Ors. Petitioners Versus Brihanmumbai Municipal Corporation and Anr. Respondents WITH NOTICE OF MOTION (L) NO. 166 OF 2017 WITH NOTICE OF MOTION (ST) NO. 308 OF 2017 IN PUBLIC INTEREST LITIGATION NO. 140 OF 2006 WITH PUBLIC INTEREST LITIGATION NO. 140 OF 2006 Janhit Manch and 3 Ors. Petitioners Versus Brihanmumbai Municipal Corporation and Anr. Respondents WITH WRIT PETITION (L) NO OF 2017 Baban S. Rahatwal and 17 Ors. Petitioners Versus Brihanmumbai Municipal Corporation and Anr. Respondents 1/47

2 WITH WRIT PETITION (ST) NO OF 2017 Vishwanath Pandurang Dede and 62 Ors. Petitioners Versus Brihanmumbai Municipal Corporation and Anr. Respondents WITH WRIT PETITION (L) NO OF 2017 Ulhas Vasant Salvi And 5 Ors. Petitioners Versus Assistant Engineer Assistant Municipal Commissioner Office And 5 Ors Respondents WITH WRIT PETITION (L) NO OF 2017 Sandesh R. Khadpe Petitioners Versus The State of Maharashtra & Ors. Respondents WITH WRIT PETITION (L) NO OF 2017 Sandeep Shivaji Shirke & Ors. Petitioners Versus Assistant Engineer Assistant Municipal Respondents 2/47

3 Commissioner Office And 5 Ors WITH WRIT PETITION (ST) NO OF 2017 Ramprasad Mishra & 36 Ors. Petitioners Versus State of Maharashtra and Anr. Respondents WITH WRIT PETITION (ST) NO OF 2017 Srimati Asha Vinyak Thorat & 52 Ors. Petitioners Versus Assistant Engineer Assistant Municipal Commissioner Office And 5 Ors Respondents WITH WRIT PETITION (L) NO OF 2017 Krishna Tukaram Ahire & 14 Ors. Petitioners Versus Assistant Engineer Assistant Municipal Commissioner Office And 5 Ors Respondents WITH WRIT PETITION (ST) NO OF 2017 Namrata Bhagwan Tambe and 2 Ors. Petitioners Versus 3/47

4 Municipal Corporation Gr. Mumbai & Ors. Respondents WITH WRIT PETITION (L) NO OF 2017 Datta Maruti Pathade & 18 Ors. Petitioners Versus Assistant Engineer Assistant Municipal Commissioner Office And 5 Ors Respondents WITH WRIT PETITION (L) NO. 385 OF 2018 Ramallu Chilka And 5 Ors. Petitioners Versus Assistant Engineer Assistant Municipal Commissioner Office And 5 Ors Respondents WITH WRIT PETITION NO OF 2018 Zaidunnisaabdul Aziz Ansari & Anr. Petitioners Versus The Municipal Corporation of Greater Mumbai And 5 Ors Respondents WITH WRIT PETITION (L) NO OF 2018 Sakharam Laxman Kangane & 5 Ors. Petitioners 4/47

5 Versus The Municipal Corporation of Greater Mumbai And 5 Ors Respondents WPL/874/2018 Ms. Ronita Bhattacharya a/w Mr. Kranti L.C., for the Petitioner. Mr. A.Y.Sakhare, Senior Counsel a/w Ms. K.H. Mastakar and Ms. Vandana Mahadik for the Respondent No. 1. Mr. Girish Godbole, Special Counsel a/w Mr. A.L. Patki, Addl. Government Pleader for the Respondent No. 4. Ms. Sharmila U Deshmukh for the Respondent No. 3. WPL/1158/2017 Mr. Sanjiv Sawant a/w Ms. Saloni Ghule i/b Mr. Himanshu Kode for the Petitioner. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 3. Ms. Sharmila U Deshmukh for the Respondents No 6 and 7. Mr. Girish Godbole, Special Counsel a/w Ms. Geeta Shastri, Addl. G. P. for the Respondent No. 5. WPL/1332/2017 Mr. Sanjiv Sawant a/w Ms. Saloni Ghule i/b Mr. Himanshu Kode for the Petitioner. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 3. 5/47

6 Mr. Girish Godbole, Special Counsel a/w Mr. Sukanta Karmakar, AGP for the Respondent State. Ms. Sharmila Deshmukh for the Respondent MPCB. WPL/3108/2017 Ms. Ronita Bhattacharya i/b Mr. Kranti L. C. and Bhavana Mhatre for the Petitioner. Mr. Girish Godbole, Special Counsel and Ms. Deepali Patankar, Asst. to G. P. for the Respondent State. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 4 Ms. Janhavi Rane for the Respondent No. 5. WPL/3278/17 Mr. Nikhil Patil i/b Mr. Prabhakar Manohar Jadhav for the Petitioner. Mr. Girish Godbole, Special Counsel and Mr. U.S. Upadhyay, AGP for the Respondent No. 1. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No.3. WPL/3301/2017 Ms. Ronita Bhattacharya i/b Mr. Kranti L.C. for the Petitioner. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 5. Mr. Girish Godbole, Special Counsel a/w Mr. Amar Mishra, AGP for the Respondents No 4 and 6. 6/47

7 WPL/3314/2017 Ms. Ronita Bhattacharya i/b Mr. Kranti L.C. and Sangram Chinnappa for the Petitioner. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Girish Godbole a/w Ms. Deepali Patankar, Asst. to G.Pfor the Respondent No.5. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 4. WPL/3316/2017 Ms. Ronita Bhattacharya, i/b Mr. Kranti L.C. and Sangram Chinnappa for the Petitioner. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Girish Godbole a/w Mr. Amar Mishra, AGP for the Respondent No.5. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 4. WPL/3350/2017 Ms. Ronita Bhattacharya i/b Mr. Kranti L.C. for the Petitioner. Mr. A.Y. Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Girish Godbole a/w Mr. Sukanta Karmakar, AGP for the Respondents No.5 and 6. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 4. WPL/3368/2017 Ms. Ronita Bhattacharya i/b Mr. Kranti L.C. for the Petitioner. Mr. A.Y.Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Girish Godbole a/w Mr. S.B.Gore, AGP for the Respondents 7/47

8 No.5 and 6. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 4 WPL/3390/2017 Ms. Ronita Bhattacharya i/b Mr. Kranti L.C. for the Petitioner Mr. A.Y.Sakhare, Senior Counsel a/w Ms. K.H.Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Girish Godbole a/w Mr. Manish Upadhyay, AGP for the Respondents No.5 and 6. Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 4. WPL/385/2018 Ms. Ronita Bhattacharya i/b Mr. Kranti L. C., Shubham Kaushal and Sangram Chinnapp for the Petitioner. Mr. A.Y.Sakhare, Senior Counsel a/w Ms. K.H. Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Girish Godbole a/w Mr. Himanshu Takke, AGP for the Respondentss No 5 and 6 Mr. Anoop U. Patil for the Respondent No. 4. WP/1664/2018 Mr Prashant Vasudeo Malik a/w Mr. Vaibhav Shah a/w Mr. Irfan Ansari for the Petitioner. Mr. A.Y.Sakhare, Senior Counsel a/w Ms. K.H.Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC. Mr. Girish Godbole a/w Ms. Geeta Shastri, Addl. G.P for the Respondents No. 4 and 5. WPL/2475/2018 Kranti L C and Ronita Bhattacharya for the Petitioner Mr. A.Y.Sakhare, Senior Counsel a/w Ms. K.H.Mastakar a/w Ms. Vandana Mahadik for the Respondent BMC 8/47

9 Mr. Girish Godbole, Special Counsel a/w Ms. Jyoti Chavan, A.G.P for the Respondent State Mr. Abhijit Purushottam Kulkarni a/w Mr. Manoj Badgujar for the Respondent No. 2 Ms. Sharmila Deshmukh for the Respondent MPCB. PUBLIC INTEREST LITIGATION NO. 140 OF 2006 None for the Petitioners. Mr. L.T. Satelkar, AGP, for the Respondent State. Mr. A.Y.Sakhare, Senior Counsel a/w Ms. K.H. Mastakar and Ms. Vandana Mahadik for the Respondent BMC. CORAM : ABHAY S. OKA AND RIYAZ I. CHAGLA, JJ. DATE : 8 August 2018 ORDER : 1. In those Petitions where Rule is not yet issued, we issue Rule. The learned Advocates who are today representing the respective parties waive service. 2. As per the administrative order passed by the Hon'ble the Chief Justice, these Petitions along with Public 9/47

10 Interest Litigation No. 140 of 2006 (which is pending for reporting compliance.) have been assigned to a Bench presided over by one of us (A.S. Oka, J). 3. These Petitions arise out of actions taken by the Mumbai Municipal Corporation for implementation of the directions issued by this Court in Public Interest Litigation No. 140 of As noted in the first paragraph of the judgment and order dated 29th July 2009 by which Public Interest Litigation No. 140 of 2006 was disposed of, the said Public Interest Litigation raised many important questions concerning the health and security of the citizens of Mumbai and the security of the environment. The said judgment and order notes that the Public Interest Litigation concerns main pipelines carrying drinking water to Mumbai from some of the lakes in Mumbai as well as from the lakes in Thane District. It is noted in the order that the length of the pipelines is 160 kilometers out of which 60 kilometers is underground and 90 kilometers is overground. The Division Bench observed that they were not 10/47

11 sure from the security point of view whether the pipelines are safe, particularly, considering the security environment of the country. The Division Bench noted that the main pipeline is surrounded by more than 15,000 unauthorized hutments which were either adjacent to the pipeline or at some places over the pipeline. It is noted that 8,000 hutments have come up after the year By the order dated 29th July 2009, this Court directed setting up of a Committee headed by the Chief Secretary of the State Government which comprised of the Director General of Police of the State, the Municipal Commissioner of the Brihanmumbai Municipal Corporation (for short the said Municipal Corporation ), and the Finance Secretary, Government of Maharashtra as its Members. The Committee submitted a report. The Committee submitted a Plan which was to ensure that the hutments/illegal structures which are constructed within the distance of 10 meters from the pipeline are removed by the year The report of the Committee dealt with the issue of the rehabilitation of the persons affected by demolition. 11/47

12 4. The State Government filed an Affidavit reiterating and accepting the report of the Committee. By the judgment and order dated 14th October 2009, Public Interest Litigation No. 140 of 2006 was disposed of. Therefore, while disposing of the Petition, this Court recorded that the statements made in the Affidavit were accepted and directed that the Plan as suggested by the Committee shall be implemented. While disposing of the Petition with the above directions, the Division Bench observed thus: The directions are given in the context of the security of the country and also of Mumbai which has experienced some of the worst terrorists attacks in recent past. With these observations, the writ petition is disposed of. 5. At this stage, it will be also necessary to make a reference to the contents of the report of the Committee constituted by this Court. The contents of the report have been referred and reproduced in paragraph 5 of the order dated 16th 12/47

13 February 2018 passed in Public Interest Litigation No. 140 of Paragraph 5 of the order dated 16th February 2018 reads thus: 5. Accordingly, a Committee was constituted by the State Government. The Committee submitted its report which is on record of PIL No.140 of We have perused the said report. It is submitted by the Committee consisting of the Chief Secretary of the State, Principal Secretary (Finance), Directorate General of Police (M.S.) and the Municipal Commissioner of the Municipal Corporation. Paragraph 5 onwards contains the action plan proposed by the Committee. The action plan makes it very clear that the same is in respect of removing encroachments on and around the main water pipelines in Mumbai. The report is not confined only to the pipeline which supplies water from Tansa Lake to the City of Mumbai. The report contains various details such as number of illegal hutments found at that time. We may note here that paragraph 5 onwards is the actual action plan. It will be necessary to note paragraphs 5, 6 and 7 of the said report which 13/47

14 reads thus : 5. Taking into consideration all the above aspects, the Committee proposes the following action plan for the consideration and approval of the Hon'ble High Court : (i) All the hutments existing upto may be considered eligible for rehabilitation. (ii) Encroachments made after are proposed to be removed for which necessary police protection shall be given to the Officers/ employees of the Municipal Corporation of Greater Mumbai at the time of remove of encroachments. (iii) In step with the likely availability of alternative tenements for the eligible hutment dwellers, a phased programme of removal and rehabilitation be taken in the following manner : Phase Period Wards No.of No. of 14/47

15 I II III IV Upto Upto Upto Upto Hutments to be removed Hutments to be rehabilitated G/N, S N, T, M/W K/E, F/N H/E, L The aforesaid Action Plan is based on the assumption that the lands owned by the Municipal Corporation of Greater Mumbai at Dindoshi and Marol are used by way of redevelopment for constructing, more than 10,000 tenements for the rehabilitation of eligible hutment dwellers. However it needs to be pointed out that two writ petitions (W.P. No.1210 & 1211 of 2009, Motion No.472 & 473 of 2009) have been filed by the occupants in respect of the land at Dindoshi, challenging the decision of the Municipal Corporation of Greater Mumbai in terms of rejecting the propose under SRA Scheme. These writ petitions are pending and the Municipal 15/47

16 Corporation of Greater Mumbai is moving the Hon'ble High Court to allow the Municipal Corporation of Greater Mumbai to develop the land at Dindoshi so as to accommodate the existing PAPs and construct more tenements for the eligible encroachers who are to be removed from the pipeline area. 7. The Committee proposes that after removal of hutments, the reclaimed area on both the sides of water trunk mains be protected by constructing compound walls/ fencing so that no new encroachments take place in future. The Committee also proposes that considering the length of the pipelines, adequate security arrangements be made with watch towers etc. so that the water trunk mains are not exposed to any kind of security threat etc. The Action Plan also envisages allowing an FSI of 4.00 at Dindoshi, Marol and other similar places for rehabilitating the eligible encroachers. The Committee proposes that in order to enable 16/47

17 the Municipal Corporation of Greater Mumbai to use maximum allowable FSI, necessary amendment in Development Control Rules should be made. 6. An Affidavit dated 25th September 2009 was filed by Shri K.V. Kurundkar, the Deputy Secretary of the Urban Development Department on behalf of the State Government in the said Public Interest Litigation. The said Affidavit shows that even the State Government accepted the action plan submitted by the Committee. The Committee recommended that all hutments existing as on 1st January 2000 will be considered for eligible for rehabilitation. A phase wise programme evolved by the Committee provided for removal of all such hutments upto 31st March The order of Division Bench dated 14th October 2009 regarding disposal of Public Interest Litigation No. 140 of 2006 was explained in the aforesaid order dated 16th February Paragraphs 8 to 11 of the said order read thus: 8 Thus, on a conjoint reading of the order dated 14th 17/47

18 October, 2009, the action plan prepared by the Committee set up by this Court and the affidavit of the Deputy Secretary it is crystal clear that the action plan which was accepted by the Division Bench was in respect of the removal of encroachments and structures within 10 meters on either side of water trunk mains or main pipelines. The report makes it clear that the plan is in respect of the removal of encroachments on and around the water mains in Mumbai. Even the affidavit of Shri Kurundkar makes this fact very clear. In fact, in paragraph 3 he has referred to the earlier survey by the Municipal Corporation of the hutments located within 10 meters on either side of the water mains in Mumbai. Thus, on plain reading of the final order in the PIL and action plan and the assurances of the State which were accepted, it is crystal clear that the directions issued by this Court apply to all the structures located within 10 meters on either side of the water trunk mains (main pipelines) in the City. The object of the said order as is clearly reflected from the order dated 14th October, 2009 is to save and protect the water trunk mains from terrorists and other attacks and in turn protect the lives of citizens residing in Mumbai. Another object was to ensure that 18/47

19 a corridor is created on both sides of water trunk mains passing through the City which should be adequately fenced so that the vehicles can immediately approach the pipelines in case of any mishap or for repairs. There are number of lakes in adjoining districts which supply water to Mumbai by main pipelines. Thus, the directions issued in this PIL are not confined to main pipeline which carries water from Tansa lake, but the same extend to all the water trunk mains which carry water from the lakes to the City. 9 As we see from the orders passed from time to time, much water has flown thereafter. The State Government took a decision to allot tenements at Mahul, Chembur to the Municipal Corporation for accommodating the occupants of those structures which were existing as on 1st January, Some of the orders passed by this Bench and earlier Bench show that there is an order of the National Green Tribunal which records a serious concern about large air pollution in the area of Mahul. 10 While we clarify the above position that the directions issued in the PIL and the action plan are in respect of 19/47

20 the structures located within 10 meters on either side of all water trunk mains in Mumbai, it is necessary for us to remind both the State Government and the Municipal Corporation the object of passing the aforesaid directions. It is not necessary for us to mention it specifically but still we venture to do so for the sake of clarity that it is the responsibility of the State Government, the Municipal Corporation and other Government Agencies in the City of Mumbai to protect the water mains which supply water to the City. There cannot be any dispute in the aforesaid proposition. It is in this context that now we direct the Municipal Corporation to file a detailed affidavit as regards the steps taken till today for implementation of the directions issued by this Court under order dated 14th October, 2009, the action plan as well as the assurances in the affidavit of the Deputy Secretary. The affidavit will state the number of structures which have been demolished till today and the number of persons who have been rehabilitated. While doing so, the Municipal Corporation will have to set out in the affidavit as to what steps the Municipal Corporation has taken for implementation of what is mentioned in paragraphs 6 and 7 of the action plan of the 20/47

21 Committee which record that the Mumbai Municipal Corporation will take steps to develop the lands at Dindoshi, Marol and other similar places for rehabilitating encroachers. As narrated earlier, it was proposed that F.S.I. of 4.00 should be granted by amending D.C. Regulations. Affidavit of the Municipal Corporation shall state the steps taken in that behalf. 11 The action plan is prepared by the three Senior Officers of the State Government namely the Chief Secretary of the State, Principal Secretary (Finance) and the Director General of Police. The action plan was endorsed by the State Government by filing an affidavit of Shri K.V. Kurundkar. Therefore, it is also the responsibility of the State Government to tell the Court as to what steps were taken by the State Government to ensure that the Municipal Corporation constructs tenements at Marol, Dindoshi and other similar places for rehabilitating the encroachers and other people. (Underline supplied.) 7. The present Petitions are filed by the occupants of 21/47

22 the structures constructed within the distance of 10 meters from main water pipeline. From the Affidavits which are filed on record in some of the Petitions, it appears that in the year 2007, 15,789 structures were identified which were falling within the distance of 10 meters from the main pipelines which supply water to Mumbai. By the year 2016, the figure went upto 16,588 and today the figure may be much higher. We must note here that from the Affidavits on record, it is apparent that certain steps were taken by the said Corporation and accordingly, 11,696 structures have been demolished. Going by the figures of 2016, 4,892 structures are yet to be demolished. Out of 9231 structures, which were found to be eligible for rehabilitation, persons occupying 7249 structures (7076 residential and 173 commercial) have been rehabilitated and occupants of 1982 structures are yet to be rehabilitated. From the figures on the basis of the year 2016, 4892 structures are yet to be demolished. As stated earlier, by the time demolition is completed, the number of structures will be much more. 22/47

23 8. As stated earlier, the Committee recommended plots at Marol and Dindoshi for constructing rehabilitation tenements. The area of the plot at Marol is 12, sq.meters and the area of the plot at Dindoshi is 1,65,602 sq.meters. One of the Affidavits filed by the Mumbai Municipal Corporation suggests that in the Development Plan, 2034 both the plots are shown reserved for rehabilitation and resettlement. However, both the plots are fully occupied by the illegal structures. The Affidavits of the Municipal Corporation and the State Government record that if the said two plots are to be vacated by demolishing illegal structures thereon, a substantial number of the premises constructed thereon will have to be allotted for rehabilitating occupants of the said structures. Though the State Government had accepted the report of the Committee appointed by this Court and though in October 2009, Public Interest Litigation No. 140 of 2006 was disposed of directing the implementation of the recommendations of the Committee, neither the State Government nor the Municipal Corporation took any steps at any time to develop the plots at Marol and Dindoshi. If timely 23/47

24 action would have been taken, perhaps the directions in Public Interest Litigation No. 140 of 2006 could have been implemented long back and there would not have been any occasion to file the present Petition. 9. The Affidavits filed on record reveal that as of today, neither the State Government nor the Slum Rehabilitation Authority or any other public authority is in a position to provide residential tenements for rehabilitation of the eligible persons affected by demolition of structures within the distance of 10 meters from the main pipeline (for short the said project ) at any place except the premises in Eversmile Complex at village Mahul near Chembur. There are 71 buildings in Eversmile Complex out of which 59 are to be allotted to the said Municipal Corporation. 10 buildings are to be allotted to the Police. Two buildings are constructed which are to be used as community/welfare centers. The Municipal Corporation is placed in possession of 45 buildings consisting of residential tenements. These buildings consist of 11,511 residential 24/47

25 tenements out of which 5862 are earmarked for the said project. The other tenements are to be allotted by the Municipal Corporation to the project affected persons of the other projects. The Affidavits filed by the Municipal Corporation reveal that so far 10,504 tenements are already allotted out of which 5,862 tenements are reserved for the said project. We may note here that from the averments made in the Petitions on board, it appears that out of these 5,862 tenements, some of the allottees have not taken possession. Some of the allottees have taken keys, but they have not occupied the premises allotted to them. 10. The other factual aspect is that the reports produced on record and the Affidavits produced on record show that 44 buildings allotted to the said Municipal Corporation need extensive repairs and as disclosed in the Affidavit of Shri. Ghag filed on behalf of the said Corporation in Writ Petition (L) No of 2017 on 26th April 2018, the cost of the repairs will be Rs. 31,55,60,685/ for which tender process is already commenced. Unfortunately, 14 buildings which are not placed 25/47

26 in possession of the Municipal Corporation also require extensive repairs and as per the directions of the State Government, the Slum Rehabilitation Authority (SRA) is under obligation to carry out repairs. 11. The issues which are canvassed by the Petitioners who are the allottees of the residential premises in Eversmile Complex at Mahul are broadly two fold. The first issue is based on an order of the National Green Tribunal (for short NGT ) dealing with the issue of air quality at Mahul. An observation is made by NGT that the air quality at Mahul is such that it may cause health hazard to the occupants or to the residents of village Mahul. The second issue is that in the Eversmile Complex in which the tenements have been alloted to the project affected persons of the said project, elementary facilities such as medical facilities, educational facilities, transport facilities, proper water supply, etc. are lacking/or are not adequate. The contention is that the project affected persons are not rehabilitated in its true letter and spirit in the premises 26/47

27 at Mahul. It is urged that considering the lack of elementary facilities and the observations made by NGT, no project affected person can be forced to shift to the residential tenements at Mahul. 12. In fact, one of the earlier orders of this Court refers to the orders passed by the Apex Court by which certain members of the Bar were directed to take inspection of the tenements in Eversmile Complex. The observation of the Apex Court is that the premises are in habitable condition. However, much water has flown thereafter. There are the reports of the Officers of the Mumbai Municipal Corporation as well as the Committee constituted by the State Government which show that the certain facilities are lacking in the Eversmile Complex. Moreover, the buildings need extensive repairs. As far as the issue of lack of availability of elementary facilities and lack of infrastructure is concerned, as stated in the Affidavit dated 5th July 2018 filed by Shri. Sanjay Gokhale, Joint Secretary of the Urban Development Department of the Government of 27/47

28 Maharashtra filed in Writ Petition (L) No of 2017, the State Government has appointed the Indian Institute of Technology, Powai, Mumbai (for short IIT ) to make a detailed survey and to submit a report. A copy of the letter dated 3rd July 2018 addressed by the State Government to the Director of IIT is annexed which contains the detailed scope of work entrusted to IIT. The scope is very wide which includes carrying out survey and making a study of availability of medical facilities, the educational facilities, infrastructure, transport and other amenities. Thus, for carrying out a very exhaustive survey, an expert institution like IIT has been appointed so that an authentic study is made about the availability of the facilities and infrastructure. Some concern is expressed by some of the Petitioners on the question whether IIT will be in a position to give an opinion about the availability of the medical facilities. Some issues are also raised regarding the terms of reference to IIT. In our view, at this stage, these apprehensions are uncalled for. IIT is an institution of some repute at international level. We are sure that the State Government will forward copies of the 28/47

29 orders passed in Public Interest Litigation No. 140 of 2006 and these Petitions including this order to IIT so that IIT is made aware of the reasons for the State Government appointing the said institution. From the terms of reference incorporated in the letter dated 3rd July 2018, we are of the view that a clear picture regarding the availability of elementary facilities will emerge before the Court from the report by IIT. However, we must record here that from the material on record, we find prima facie merit in the contention that the locality where the tenements are constructed at Mahul lacks elementary medical and educational facilities as is reflected from the orders passed from time to time. The fact that the Municipal Corporation has agreed to spend a sum of Rs Crores for the repair work also throws sufficient light on the status of the buildings used for rehabilitation. There are issues of availability of proper water supply, drainage and solid waste management, discharge of waste water, etc. However, all these issues will be looked into by IIT. 29/47

30 13. The learned Special Counsel appointed by the State Government pointed out that IIT has stated that approximately time of four months will be necessary to come out with the report. We are sure that if the State Government requests the Director of the IIT to expedite the completion of survey and submission of report, IIT will be in position to do so considering the fact that life of more than 25,000 persons belonging to more than 5000 families of the project affected persons is involved. 14. As regards the repairs to be carried out by the Mumbai Municipal Corporation, we propose to direct the Municipal Corporation to submit periodical reports. 15. Now we come to the issue regarding the findings recorded by NGT. In Application No. 40 of 2014 (M.A. No. 55 of 2015), the Western Zone Bench of NGT at Pune passed a detailed order. The Applicants before NGT as noted in paragraph 1 of the said order are the residents of Ambapada at 30/47

31 Mahul Village near Chembur. Paragraph 1 of the order notes that they filed an Application before NGT raising the substantial issue of air pollution allegedly caused by the industrial operations of the 1st and 2nd Respondents to the Application in terms of Volatile Organic Compounds (VOC) emission and associated adverse impact on the surrounding population. By the detailed order which runs into 59 paragraphs, NGT considered various reports of the experts including the reports in the form of the Dockets from KEM Hospital at Mumbai on record. In paragraph 25 of the said order, NGT observed thus: We are conscious of the fact that such co relations are scientifically and statistically very subjective and there may be variable attributes like sample size, sample distribution, sampling period besides individual variables like occupation, nutrition and life style of individual subjects. Notwithstanding such delicate but significant dependencies, it is always statistically prudent to consider basis when large cases of similar kind, namely, respiratory disorder have been noticed by KEM, in relation to people from above two (2) 31/47

32 villages and considering the human health on priority and therefore, we do not find any reason for not accepting the KEM report. Considering such observations and also, the demonstrated link between the prevalent ambient air quality at Mahul and Ambapada villages with the health impacts in those areas, it can be observed that there is a perceptible threat to health of the residents of village Mahul and Ambapada due to prevailing air quality in the area. (Underline supplied.) 16. In paragraph 57 of the order, NGT issued various directions under Section 18 read with Section 20 of the National Green Tribunal Act, The NGT directed that the health impact assessment studies as proposed by KEM Hospital shall be conducted for minimum period of three years. A direction was also issued to the Maharashtra Pollution Control Board (for short MPCB ) to carry out VOC assessment studies on yearly basis for next three years to assess the trends of the problems. We must also note here that apart from paragraph 25 quoted above, NGT summarized its findings in paragraph /47

33 One of the findings recorded is that there is a persisting problem of air pollution in Mahul, Ambapada and Chembur areas. There is a further finding that there is a strong evidence that this air pollution is linked and can be scientifically correlated to the adverse health effect on the surrounding population as observed from KEM Hospital studies and therefore, there is an urgent need to control the air pollution by devising an action plan. In paragraph 48, NGT noticed another problem. NGT observed that it will be very difficult for any Court to order closure of the industries and shifting of the industries, unless and until there is sufficient evidence to show their significant contribution to the pollution. 17. It is not in dispute that after several orders were passed by this Court, the State Government belatedly filed Miscellaneous Application No. 574 of 2018 before NGT for modification of the order dated 18th December 2015 and the observations made therein. Today, an order of NGT (Principal Bench at New Delhi) is placed on record which is passed on 2nd 33/47

34 August 2018 which shows that Execution Application No. 5 of 2018 in the Original Application No. 40 of 2014 was not on board and the said Application is ordered to be listed on 30th August However, Application No. 574 of 2018 was not listed. We must note here that the said Application was made by the State Government after several orders were passed by this Court including the order dated 27th April 2018, which notes that the State Government has not even challenged the said order passed way back on 18th December On prima facie consideration of the material on record and the factual aspects discussed above, today what is observed in paragraph 25 and the findings recorded in paragraph 43 of the order dated 18 December 2015 of NGT stare at the face. The majority of the project affected persons of the said project have not voluntarily shifted to Mahul. We are noting this in the context of the contention raised in one of the Affidavits that there are large number of people already residing at Mahul. The project affected persons were forced to shift to 34/47

35 Mahul by allotting them residential tenements at Mahul by way of rehabilitation. May be that some of the project affected persons, after finding that the premises allotted to them at Mahul were better than the premises which they were occupying near the pipeline, may have willingly shifted to the premises at Mahul. The question is whether the citizens can be forced to accept the residential tenements at Mahul by way of rehabilitation in the face of the findings recorded by NGT in paragraphs 25 and 43 of the order dated 18th December What is observed by NGT on the basis of the material on record is that there is a perceptible threat to the health of the residents of village Mahul and Ambapada due to prevailing air quality in the area. No doubt, on the basis of the orders of this Court, certain studies were conducted by MPCB and certain material is placed on record to show that the air quality in the area may have improved. However, we are not dealing with a challenge to the order passed by NGT dated 18th December If there was a substantive challenge, perhaps the data placed by MPCB could have been considered. At this prima facie stage, this Court 35/47

36 will have to proceed on the footing that the findings recorded by NGT continue to hold the field as even the Application made by the State Government for modification of the findings is pending before NGT. 19. Right to live in a pollution free environment is an essential part of the fundamental right guaranteed under Article 21 of the Constitution of India. Prima facie, we are of the view that in view of the findings recorded by NGT in the order dated 18th December 2015, as of today, the State Government cannot force any of the project affected persons of the said project to go and occupy the residential tenements in the Eversmile Complex at Mahul and therefore, the structures of those Petitioners who have not accepted the tenements at Mahul will have to be protected for the time being. 20. There is one more important aspect of the matter. We have extensively quoted the orders passed in Public Interest Litigation No. 140 of It takes a note of a serious 36/47

37 threat perception in the form of a terrorist attack on the main pipeline supplying water to the city of Mumbai. The State Government and the Municipal Corporation have accepted the final order passed in Public Interest Litigation No. 140 of In fact, the Committee constituted by this Court headed by the Chief Secretary of which the Municipal Commissioner and the Director General of Police of the State were a part, has come out with a time schedule for demolition of the structures within the distance of 10 meters from the pipeline and the State Government had filed the Affidavit accepting the said report. In fact, as per the action plan, the demolition of all structures within the distance of 10 meters of the main pipeline should have been over in the year However, going by the figures of 2016, about 4800 structures are yet to be demolished. In our view, it is the duty of the State Government to ensure that the directions in Public Interest Litigation No. 140 of 2006 are immediately implemented, as the pipelines which provide water to the population of about 1.80 Crores residing in the city has a threat perception as noted by the Division Bench way back in 37/47

38 the year 2009 and the order recording such a threat perception has been accepted by the State Government. 21. It is projected by filing the Affidavits that in no other part of the city, there are tenements available for project affected persons. This claim is disputed by certain Petitioners by pointing out the availability of tenements in Slum Rehabilitation Authority projects (SRA projects)/schemes in the city. However, the allotment of available tenements to various categories of project affected persons is a matter of a policy decision and unless it is arbitrary, this Court cannot, at this stage, interfere with the said decision and direct that the project affected persons of the said project should be accommodated in some SRA projects. Therefore, if the orders of this Court in Public Interest Litigation No. 140 of 2006 are to be effectively implemented, the State Government will have to consider of providing temporary alternate accommodation at some other place than Mahul to the project affected persons on ad hoc basis till the issues of quality of air and infrastructure are cleared. The 38/47

39 other option will be that the State Government will have to offer a reasonable amount by way of rent till the said issues are cleared, so that the project affected persons can acquire accommodation on temporary basis. We must note that about 5000 or more structures situated within the distance of 10 meters from the pipeline are still to be demolished buildings in Eversmile Complex at Mahul which are earmarked for allotment to the Municipal Corporation are under repairs. Even after tenements in 14 buildings are allotted to the said Municipal Corporation after carrying out repairs, as of today, no project affected persons can be forced to shift to the said residential tenements at Mahul. 23. Thus, it is the obligation of the State Government to find a solution with a view to ensure that the orders passed in Public Interest Litigation No. 140 of 2006 are fully implemented at the earliest, as the issue is of a threat perception which will affect large population of city which is 39/47

40 more than 1.80 Crores going by the last census figures. 24. As a result of the order dated 18th December 2015 of NGT, the implementation of the orders passed in Public Interest Litigation No. 140 of 2006 has been adversely affected thereby putting the main pipeline under a threat. We, therefore, propose to direct the State Government to invite attention of NGT to the orders passed in Public Interest Litigation No. 140 of 2006 from time to time as well as orders passed in these Petitions and in particular, this order to NGT so that NGT can give out of turn priority to the hearing of the Application filed by the State Government. In the meanwhile, the State Government will have to take steps by either allotting temporary alternate accommodation at some other place to the project affected persons of the said project or by offering a reasonable amount by way of monthly rent which will enable the project affected persons to take premises for their residence on rent till the issues arising in relation to the premises at Mahul are sorted out. 40/47

41 25. There are certain Petitioners who have taken keys of the tenements allotted to them at Mahul, but have not occupied the tenements allotted to them. We are making it very clear that this order will not prevent those project affected persons who desire to shift to the tenements at Mahul to accept and shift to the tenements at Mahul without prejudice to their rights and contentions. We, therefore, propose to give time to those Petitioners, who have accepted the keys, but have not shifted to Mahul by taking possession of their tenements, either to surrender the keys or to occupy the tenements. 26. We therefore, passed the following order: (a) In the Petitions in which Rule has not been issued, we issue Rule. The advocates who are appearing today, waive service. (b) We pass the following interim order: (i) The subject structures of those Petitioners who 41/47

42 have not taken possession of the alternate accommodation at Mahul, shall not be demolished and they shall not be dispossessed till further orders subject to condition of the said Petitioners maintaining status quo in all respects in respect of the structures occupied by them. Thus, the said Petitioners will not be entitled to carry out the additions and alterations to the structures, to part with the possession thereof and to create the third party interest therein; (ii) In case of the Petitioners whose structures are protected by ad interim order in these Petitions and who have accepted the keys of the rehabilitation tenements allotted to them at Mahul, but have not occupied the tenements allotted to them, shall occupy the premises allotted to them within a period of one month from today. If they do not wish to occupy the 42/47

43 tenements alloted to them, they shall return the keys to the designated officer of the concerned Ward of the Mumbai Municipal Corporation within a period of one month from today. Those Petitioners who have taken keys and fail to return keys within the stipulated period of one month as above shall not be entitled to protection in terms of clause (i) above and on expiry of period of one month, their structures shall be demolished. However, the Petitioners who handover the keys within one month shall be entitled to protection in terms of clause (i) above; (iii) We direct the State Government to explore the possibility of allotting temporary accommodation on ad hoc basis to the eligible project affected persons of Pipeline Project whose structures have not been protected under 43/47

44 this order till the issues about the tenements at Mahul are resolved. In the alternative, the State Government shall consider the option of paying a reasonable amount per month to such eligible project affected persons till the issues concerning the premises at Mahul are resolved. The State Government shall take appropriate decision on these aspects at the earliest and in any event on or before 1st October If the State Government exercises one of the two options before 1st October 2018, the State Government will be entitled to apply for vacating the aforesaid interim order; (iv) To enable the State Government to make a statement on this aspect, these Petitions shall be listed under the caption of Direction on 5th October 2018; 44/47

45 (v) We direct an appropriate officer of the Mumbai Municipal Corporation to file an Affidavit setting out the progress made in the work of carrying out the repairs to the 44 buildings. The said Affidavit shall be filed on or before 1st September For considering the said compliance, these Petitions shall be listed on 7th September Before the aforesaid date, the State Government shall file an Affidavit setting out the steps taken for carrying out the repairs to remaining buildings in Eversmile Complex which are to be placed in possession of the Mumbai Municipal Corporation; (vi) We direct the State Government to produce in Miscellaneous Application No. 874 of 2018 pending before the National Green Tribunal the true copies of the relevant orders passed in Public Interest Litigation No. 140 of 2006 along 45/47

46 with the report of the Committee constituted by the Court in the said Public Interest Litigation as well as the orders passed in these matters from time to time including this order. We are sure that once these orders are produced before the National Green Tribunal, the State Government will be able to request the National Green Tribunal to give out of turn priority to the hearing of the Miscellaneous Application made by the State Government; (vii) We also make it clear that the directions issued as aforesaid will not prevent the State Government from challenging the order passed by the National Green Tribunal on 18th December 2015 in accordance with law; (viii) In case the project affected persons who have already occupied the tenements at Mahul face 46/47

47 any difficulty in respect of water supply and other essential facilities, they are free to approach the Designated Officer of the concerned Ward with a written complaint who shall expeditiously look into the same; (ix) All concerned to act upon an authenticated copy of this order; (x) Place these matters on 7th September 2018; (xi) Place the Public Interest Litigation No. 140 of 2006 along with all the pending Notices of Motion therein on 31st August The Petitioner appearing in person be informed about the date fixed. [RIYAZ I. CHAGLA J.] [ABHAY S. OKA, J.] 47/47