Research › Search › Judgment

Bombay High Court · body

2024 DIGILAW 127 (BOM)

Bhagvanji Raiyani v. Municipal Corporation of Greater Mumbai

2024-01-15

ARIF S.DOCTOR, DEVENDRA KUMAR UPADHYAYA

body2024
JUDGMENT : Arif S. Doctor, J. 1. The captioned Petition is stated to be filed in the Public Interest and seeks the following reliefs, viz. “a. The Hon’ble Court to direct the Respondents and more particularly Respondent No. 2 to file his affidavit why he didn’t take any actions on the illegal constructions being on the record, notices issued, demolitions ordered and prosecutions warned. b. To direct the Respondents to demolish the entire Shubham Building, impose heavy penalty for illegal user and launch prosecution against Shubham Building owners Sagar Landmark Pvt. Ltd. c. To direct the Sudharma Building developer to demolish and properly level the ground, remove the excess height of the compound wall and lower down the round corner wall upto 10 metre length on both the roads upto 2’-6” height with grill on top, remove acrylic roofing on the open spaces and any other illegalities deviating from approved plans. d. To direct the Respondents to prosecute the Sudharma builder, to impose heavy penalty, cost of demolition and launch prosecution against him. e. To direct to enquire thoroughly on the illegal approval of Adish building on the Juhu Beach illegally constructed as hotel building for cheating on Respondent No.3, government for getting FSI 2 but actually used as residential building of nine storeys for over 10 years. f. To impose heavy penalty on the owner/occupier of Adish Building cost of demolition of half of upper storeys and balance to be converted as residential. g. To direct Respondents to prosecute the current Occupant/Owner for FSI fraud committed on Respondent No.3 government with stringent provisions of the relevant laws. h. To direct prosecution of Respondent No.2 on his inaction and deriliction of his duty.” 2. At the outset, the learned counsel appearing on behalf of both Respondents, raised a preliminary objection as to the maintainability of the present Petition. They submitted that while the Petitioner had sought reliefs against the owners/developers of the buildings/structures more particularly set out in the Petition, the Petitioner had not impleaded any of the owners/developers as party Respondents to the Petition. They submitted that when this was noticed by the Court on a previous occasion, the Petitioner had infact sought leave of the Court to amend the Petition as recorded in the order dated 20th January 2023. They submitted that when this was noticed by the Court on a previous occasion, the Petitioner had infact sought leave of the Court to amend the Petition as recorded in the order dated 20th January 2023. They submitted that despite this, the Petitioner had not impleaded any of the owners/developers as party Respondents to the Petition. It was thus they submitted that the Petition deserved to be dismissed in limine. 3. In light of the above, we put to Mr. Raiyani – Petitioner appearing in person as to how this Petition could be entertained without joining the parties against whom reliefs were sought and/or who would be directly affected if the Court were to infact grant such reliefs. Mr. Raiyani however submitted that he did not need to amend the Petition and was not going to amend the same by adding any of the owners/developers as Party Respondents to the Petition. We then once again put to Mr. Raiyani as to how this Petition could be entertained, absent joinder of parties against whom reliefs were sought and who would be directly affected by the grant of such prayers by this Court. Mr. Raiyani submitted that the joinder of the owners/developers was not necessary as the contents of the Petition itself made out a case for the grant of the reliefs that were prayed for. He thus submitted that it was not necessary for him to amend the Petition. He then stated that he had filed over one hundred public interest petitions and had raised issues of vital public interest. He requested the Court to then permit him to make his submissions after which he stated that he would be filing written submissions. 4. Mr. Raiyani then instead of making submissions proceeded to read out the entire Petition. He read the Petition thread bare and while doing so repeatedly named a prominent political figure who he submitted owned one of the buildings/structures mentioned in the Petition and in respect of which orders, including of demolition, were sought. He submitted that it was because the said building/structure was owned by the said political figure the Respondents were turning a blind eye, to what he submitted, were various illegalities and contravention of permissions granted. When we asked Mr. He submitted that it was because the said building/structure was owned by the said political figure the Respondents were turning a blind eye, to what he submitted, were various illegalities and contravention of permissions granted. When we asked Mr. Raiyani to point where in the Petition this was stated, he was unable to do so but reiterated that action was required to be taken against all the said buildings/structures and their respective owners/developers as prayed for. 5. Mr. Raiyani, after reading the entire Petition, then tendered written submissions which he also read out. It is crucial to note that while the Petition alleged illegalities qua three buildings/structures, the entire thrust of the written submissions was only qua the building/structure stated to be owned by the prominent political figure. In the written submissions the Petitioner has infact specifically stated that he has targeted four buildings for alleged illegal constructions though he prayed for prosecution of only the prominent political figure. 6. After having heard Mr. Raiyani at considerable length as also independently going through the contents of the Petition and written submissions, we find that the present Petition deserves to be dismissed in limine for the following reasons, viz. A. First, the Petitioner has despite seeking reliefs (including of prosecution) against the owners/builders of buildings/structures mentioned in the Petition, has chosen not to join the said owners/developers as party Respondents to the present Petition. We must note that this was despite the fact that the Petitioner had sought leave to amend the Petition by adding parties, but infact did not. There can be no manner of doubt that the owners/developers of the said buildings/structures would be necessary parties to the Petition and who would be vitally aggrieved by any order passed, despite which they have not been impleaded as party Respondents. Thus, the non-joinder of necessary parties would itself, in our view, render the Petition liable to be dismissed. It is useful in this regard to place reliance upon a judgement of the Hon’ble Supreme Court in the case of Prabhodh Verma and Others vs. State of Uttar Pradesh and Others, (1984) 4 SCC 251 wherein the Hon’ble Supreme Court held as follows, viz. “28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh's case. “28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh's case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties. ” (emphasis supplied) Thus, we find that the Petitioner though aware of the identity of the individuals/entities against whom reliefs have been prayed for and who would be vitally aggrieved by any such orders and yet refusing to join them as Parties to the present Petition, the Petition deserves to be dismissed on this ground alone. B. Second, though the Petition is filed as a Public Interest Petition a perusal of the same infact shows that the same is not in the format prescribed under the Bombay High Court Public Interest Litigation Rules, 2010 (PIL Rules). Rule 7 (e) of The PIL Rules requires the Petitioner to file an undertaking to disclose the source of the Petitioners knowledge leading to the filing of the Public Interest Litigation. Rule 7 (e) of The PIL Rules requires the Petitioner to file an undertaking to disclose the source of the Petitioners knowledge leading to the filing of the Public Interest Litigation. In the present case not only has the Petitioner not given any undertaking, the Petition itself is bereft of any details of the Petitioner’s knowledge and/or how the Petitioner came into possession of the material which is annexed to the Petition. While the Petition makes a reference to an application filed under the provisions of the Right To Information Act, 2005 (“RTI Act”), neither a copy of the said Application has been annexed to the Petition nor have any details in respect of what information was sought for by the said Application been stated in the Petition. C. Third, a perusal of the Petition shows that the Petitioner had as far back as on 6th March 2007 addressed a letter to the Assistant Municipal Commissioner K/W ward which appears to be in respect of one of the buildings/structures mentioned in the Petition. The Petition is filed in the year 2021 which is about 14 years after the said letter was addressed and the Petition is entirely silent as to why the Petitioner had waited so long to file the present Petition. Additionally, and to our minds crucially, the Petitioner has in the written submissions focused almost entirely on the building/structure which is stated to be owned by the prominent political figure. The Petitioner has also named the prominent political figure in the written submissions, (though the Petition does not do so) and has also made a mention of a Writ Petition, in which it is submitted that orders inter alia for demolition and levy of penalty and/or fine qua the building/structure which is stated to be owned by such prominent political figure have been passed. Thus, the focus in the written submissions has shifted to only the political figure against whom prosecution is sought and yet refusing to join him as a party Respondent. This conduct to our mind raises grave doubts as to the real object/purpose for which the present Petition has been filed. D. Fourth, it is crucial for us to bear in mind the observations of the Hon’ble Supreme Court in the case of in case of State of Uttaranchal Vs. This conduct to our mind raises grave doubts as to the real object/purpose for which the present Petition has been filed. D. Fourth, it is crucial for us to bear in mind the observations of the Hon’ble Supreme Court in the case of in case of State of Uttaranchal Vs. Balwant Singh Chaufal, 2010 SCC OnLine SC 196 in which the Hon’ble Supreme Court issued various directions to preserve the purity and sanctity of PIL’s, inter alia including (i) for High Courts to frame rules for encouraging genuine PIL’s and discouraging PIL’s filed with oblique motives, (ii) that Courts should prima facie be satisfied regarding the correctness of the contents of the PIL before entertaining it (iii) that a substantial public interest is involved in the PIL and (iv) that there is no personal gain, private motive or oblique motive behind filing the PIL. Given the fact that Petitioner has through his arguments and then pointedly in the written submissions effectively targeted only one individual without joining that individual as a Party Respondent makes us believe that the Petition has been filed for oblique purposes. E. Lastly, we must note the judgment of this Court passed in another PIL (Bhagvanji Raiyani vs The State of Maharashtra & Anr. PIL (L) No. 41119 of 2022) filed by the same Petitioner which was also both pleaded and presented in very much the same manner as the present Petition has been, wherein this Court had dismissed the said PIL by inter alia holding as follows, viz. “.... This is yet another vague and generalized Public Interest Petition filed by this Petitioner. Filing such Petitions has become a regular occurrence, with the Petitioner presenting one or two such Petitions nearly every weeks. 12. We place on record our disapproval of the numerous poorly drafted and haphazardly presented petitions persistently filed by this Petitioner, subjecting the Court to a monologue, thereby consuming valuable judicial time and resources. It is essential to exercise prudence and diligence in preparing and presenting petitions before the Court, ensuring that they are well-founded and supported by adequate research and compelling arguments, avoiding using intemperate language. It is crucial to maintain respect and professionalism in all legal pleadings, regardless of the nature of the case or the parties involved. It is essential to exercise prudence and diligence in preparing and presenting petitions before the Court, ensuring that they are well-founded and supported by adequate research and compelling arguments, avoiding using intemperate language. It is crucial to maintain respect and professionalism in all legal pleadings, regardless of the nature of the case or the parties involved. The PIL Petitioner must try to understand the relevant legal principles, administrative and constitutional law, and the scope of writ jurisdiction, and if they cannot do so, seek legal assistance. That is so because the judicial system operates with limited time and resources, and frivolous or poorly presented PILs burden the Court and hinder the resolution of other genuine and urgent cases.” 7. Thus, for the aforesaid reasons, we find that the present Petition is one which in entirely devoid of substance and merit and fails to satisfy the test laid down by the Hon’ble Supreme Court in the case of Balwant Singh Chaufal (supra). We must note that a Petition like the present one, which is both loosely drafted and presented infact militates against the public interest. 8. Hence, for all of the aforesaid reasons, we find that the Petition is entirely devoid of merit. We make it clear that we have not expressed any view on the legality or otherwise of any of the impugned buildings/structures mentioned in the Petition, nor have we foreclosed any valid and bona fide challenge to the same. The Petition is accordingly dismissed.