Bombay High Court dismisses petitions on Aarey Colony, says ‘greens have failed’

“The greens (environmentalists) have failed,” the Bombay High Court said on Friday, while refusing to declare Aarey Colony a forest and declining to quash the BMC tree authority’s decision allowing felling of over 2,600 trees in the green zone to set up a metro carshed.

The court imposed a cost of Rs 50,000 on Shiv Sena corporator Yashwant Jadhav, who opposed the approval given by the BMC tree authority, of which he is a member, for hacking trees in the green belt.

A division bench of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre dismissed four petitions filed by NGOs and environmental activists on issues related to Aarey Colony in Goregaon, a major green lung of the metropolis.

The court termed all the petitioners as “Davids” taking on the industrial “Goliaths”, apparently suggesting that they were fighting an unequal battle.

One of the pleas moved by city-based NGO Vanshakti had sought that Aarey Colony be declared a forest and an ecologically sensitive zone, while another petition filed by green activist Zoru Bathena had pleaded that the area be given the status of a floodplain.

Two separate petitions were filed by Bathena and Jadhav, challenging the decision of the BMC tree authority permitting the Mumbai Metro Rail Corporation Ltd (MMRCL) to cut 2,656 trees to construct a metro carshed in Aarey Colony.

Dismissing the petition filed by Vanshakti, the court, in its judgment, noted that the issue was already decided by an earlier bench of the high court and the matter was presently pending before the Supreme Court.

“The greens (environmentalists) fail in the instant petition because they have lost touch with the procedure to be followed as per law. The clock cannot be put back. We do not make any comments thereon as the petitioner has to now swim or sink before the Supreme Court,” the court said.

Dismissing the petitions filed by Bathena and Jadhav, the bench said the greens had failed on merit.

“The tree authority’s decision-making process was fair, transparent and based on reason. The greens fail not on account of sailing their boats in the wrong channel but on merits,” the court said.

The bench imposed a cost of Rs 50,000 on Jadhav.

“It (Jadhav’s plea) is sans any material and bereft of concise statements and details concerning the meeting of the tree authority held on August 29, 2019,” the court said.

It noted that there was no variation in the opinion of the members of the tree authority on whether the trees could be transplanted or had to be cut.

“There are good reasons for taking the view that the trees would not survive if transplanted and that it would be futile to spend good money to transplant the trees, which ultimately would by and large die,” the bench said.

The court also took note of the submission made by MMRCL counsel Ashutosh Kumbhakoni that the authority had already planted 20,900 trees in the Sanjay Gandhi National Park.

“This establishes that about seven times the number of trees to be felled have been replaced by planting of saplings,” the court said.

It termed all the petitioners as “Davids” taking on the industrial “Goliaths”.

“Relationship with nature and love for environment alone is true and all other relationships are unreal and temporary, is their (environmentalists’) belief. Their hearts are a temple of devotion to flora and fauna,” the court said.

“In the instant case, the Davids (environmentalists) row their boat with faith, courage and devotion in the storm of development but directionless,” the bench said in its judgment, dismissing the plea filed by Vanshakti.

It also refused to accept the contentions raised by Bathena and Jadhav in their pleas that the tree authority had granted approval in haste and without considering opposing views.

“We highlight that the deliberation by the tree authority members was not only at the meeting held on August 29, 2019. They had discussed the issue at site visits held on August 10 and 20, 2019. What was discussed at the site has been neatly presented as a bonsai in the report prepared by the tree officers,” the court said.

The Brihanmumbai Municipal Corporation (BMC) had given the tree-hacking approval on August 29, triggering protests by green activists and common citizens, who had launched a “Save Aarey” campaign.

Vanshakti, in its plea, had said Aarey Colony, measuring 1,287 hectares, had several exotic flora and fauna.

On the Vanshakti petition, the court said, “The remedy is before the Supreme Court or the National Green Tribunal. We have applied the principle of commonality and not decided on merit.”

The Maharashtra government had claimed that Aarey Colony could not be termed a forest and that the issue was already decided by another high court bench.

Advocate General Ashutosh Kumbhakoni, appearing for the state earlier, had said an appeal against the high court order refusing to declare Aarey a forest was currently pending before the Supreme Court.

Bathena, in his plea, had challenged the decision taken by the tree authority granting permission to fell trees.

The proposed carshed, part of the metro-3 project, will occupy 33 hectares in the southern part of Aarey Colony.

The authority has approved felling of 2,185 trees and transplanting (uprooting from the original spot and replanting them at an alternate spot) 461 trees from the area.

The authority’s approval is mandatory for felling more than 20 trees at a time at any place in the city.

Staying near refineries can pose health & security risks: Bombay High Court

 The Bombay High Court on Monday said making people stay in the heavily air polluted Mahul area of Mumbai may not only pose health risks, but also increase security concerns on refineries located in the vicinity.

A division bench of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre said the Maharashtra government cannot force any person to stay at such a residential colony in Mahul.

The bench was hearing applications of a group of people displaced following demolition of their unauthorised houses on the Tansa pipeline that runs across several parts of the city.

Relying on an April 2019 order passed by another bench of the high court, the bench led by Chief Justice Nandrajog on Monday said the government will have to either accommodate the displaced persons elsewhere, or give them Rs 15,000 each month as rent so that they can find their own accommodation.

Around 15,000 families were displaced after their “unauthorised” houses near the Tansa pipeline were ordered to be demolished by the high court last year.

The Brihanmumbai Municipal Corporation (BMC) had shifted the displaced people to a housing colony in Mahul, a polluted area where refineries and chemical units are located.

However, several families refused to move to Mahul, claiming that the air quality there was very poor and posed health risks.

“It is evident that residential premises in the vicinity of such refineries can pose multi-faceted risks, which are not only restricted to the health of residents nearby, but also security risk by way of a terrorist attack using these refineries as targets,” the bench said on Monday.

Such a terrorist attack would lead to colossal destruction within Mumbai city, it said.

The bench relied on an order passed by the National Green Tribunal in December 2015, stating that the presence of volatile organic compounds in Mahul makes the air pollution in the region harmful for human health.

“We have perused reports prepared by three government agencies – the Maharashtra Pollution Control Board, the Central Pollution Control Board and NEERI – which show that the air pollution in Mahul continues to be disturbingly high and to this day, poses threat to human life,” the court said.

Around 200 of the 15,000 affected families have shifted to Mahul so far.

The court, in its order, said the government and the BMC shall not shift any more displaced persons to Mahul and shall also inform those persons who have been already shifted there that they can opt to leave the place.

After the bench passed its order, the BMC sought a stay so on it that it could approach the Supreme Court.

The bench, however, refused to grant the stay.

The Bombay High Court : How will a mobile app work in communication-hit JK .

The Bombay High Court on Thursday referred to the communication restrictions in Kashmir and sought to know how will a mobile application (app) proposed by RBI help visually-impaired people identify currency notes in such situations.

A division bench of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre made the reference to the temporary clampdown, which has affected mobile telephone and Internet services in Kashmir, after being informed by the RBI that it would be coming up with the mobile-based app which can be used by visually-impaired people to identify currency notes.

“Technology has its own limitations. What will happen when a visually impaired person loses his mobile phone network or is not allowed to use his phone somewhere,” Chief Justice Nandrajog asked.

“We have a state (Jammu and Kashmir) where mobile phones were not allowed…(post scrapping of J&K’s special status on August 5) there is no network connectivity in some parts. What will happen then,” he asked.

The court added that even in cities like Mumbai, a person sometimes does not have mobile phone network.

“We owe some obligation to the visually-impaired persons to make things easy for them. We should not be making things difficult,” Chief Justice Nandrajog said.

The court said the RBI, by now declaring it would come up with the mobile app was giving a solution to a problem that was its own creation.

The court was hearing a petition filed by the National Association of the Blind (NAB), claiming new currency notes and coins posed difficulty for the visually-impaired people in identifying and distinguishing them.

The bench on Thursday said technology like mobile apps are hardly a match for skills developed by a visually-impaired person by the touch of his hands.

“Nature has its own compensatory ways. Visually-impaired persons lose their sense of vision but their other senses like smell and touch are heightened,” the court noted.

By changing the size and dimensions of a currency note, the apex bank was taking away the skills developed by a visually-impaired person to identify such bills, it added.

The bench had last month asked the banking regulator to explain the need for changing the size and physical features of currency notes.

“The size and dimensions of the currency notes have been changed only once from 1967 to 2019. In 2018, the RBI changed certain features of some currency notes.

“However, in the future, there is not going to be any more changes,” RBI counsel Venkatesh Dhond said on Thursday.

When the court asked why after so many years, in 2018 the RBI felt the need to change the size and dimensions of the currency notes, he said one of the reasons was to make the notes “wallet-friendly”.

“Internationally, for example the US Dollar, the currency notes are wallet-friendly. Even the RBI felt the need to do the same,” Dhond said.

He further told the court that the new notes above the Rs 100 denomination have particular pattern markings on the side for identification purposes.

“These patterns are raised and are called bleed lines. However, they are not there in Rs 10 and 50 notes as we noticed that the patterns tend to fade sooner in these notes due to higher use,” Dhond said.

The court posted the petition for further hearing on Friday.

Embryologist accused of importing human embryos gets Bombay High Court relief

The Bombay High Court Monday ordered the Directorate of Revenue Intelligence to not take any coercive steps against a 51-year-old embryologist accused of importing human embryos from Malaysia.

A division bench of Justices Ranjit More and Bharati Dangre also directed embryologist Dr Goral Gandhi to appear before the Directorate of Revenue Intelligence (DRI) to record her statement.

According to her plea, Gandhi runs an IVF clinic in suburban Bandra.

“The petitioner does not import embryos as part of her business,” Gandhi’s lawyer Sujoy Kantawalla said.

According to the plea, on the night of March 16, certain people claiming to be DRI officials conducted a search at her clinic and seized certain documents.

The officials handed over summons to the petitioner directing her to appear before the investigating officer concerned of the DRI for further probe.

DRI’s lawyer Rebecca Gonsalves told the court that on March 16, a person was intercepted at the city’s international airport.

“During search of his luggage, a canister was seized and DRI officials found a human embryo inside it,” Gonsalves said.

Gonsalves added that upon questioning, the man told the officials that the canister was to be delivered to the petitioner’s clinic.

“Human embryos cannot be imported unless the person has obtained a permit to do so from the Indian Council of Medical Research,” Gonsalves argued.

The bench directed the DRI to file its affidavit in response to the petition and posted the matter for hearing on April 3.

The court said the petitioner should appear before the officer concerned on March 22 to record her statement.

“No coercive action shall be taken till further hearing,” it said.

Medical admissions; HC upholds Maha state eligibility rules

Mumbai: The Bombay High Court today upheld the Maharashtra government’s state quota eligibility rules-2018 for admissions to medical colleges under the state quota.

The rules were mentioned in an information brochure by the state’s admission cell for 2018 medical admissions.

A bench of Justices SC Dharamadhikari and Bharati Dangre refused to interfere with the state’s rules that mandate that an applicant seeking admissions to one of the 31 private and government medical colleges across the state under the state quota must possess a domicile of Maharashtra.

In addition, these rules also lay down that such an applicant must have passed his/her class X and XII exams from a school in the state.
Those who meet the above criteria can avail of the 85 per cent reservation under the state quota in medical colleges across Maharashtra.
This rule, however, had been challenged through a bunch of petitions filed by aspiring medical students from across the state.
The petitioners had argued that since they possessed a domicile of Maharashtra, though they had not passed their class X or XII exams from the state, they must still be granted admissions under the state quota.

The state Directorate of Medical Education and Research, however, had defended the rules before the court.

Appearing for the state, Advocate General Ashutosh Kumbhakoni had told the bench that the state quota rules had been made to promote local talent in the field of medicine and public health.

The bench also noted that two previous judgements of Bombay HC, and one of the Supreme Court, upheld Maharashtra’s state quota rules for medical admissions in the past.
The bench also dismissed the arguments of the petitioners that the classification on domicile and schooling imposed by the state was discriminatory.
The court held that the rules were not violative of Constitutional principles of equality since they were based on the rationale of promoting local talent, who in turn, were likely to “serve the state in the field of public health in the future.”
It also said that it could not “take a view different” from that taken by the previous HC and SC judgements since those judgements had weighed all aspects of the law thoroughly.
The bench, however, also reprimanded the state government for lack of coordination among its various departments.
It noted that earlier this year, while the Nagpur bench of Bombay HC was hearing similar petitions, the state government had decided not to oppose the students.
Though, later, the state had changed its stand and said that it was going to challenge the Nagpur bench’s order granting relief to some students.

“We hope that in the future the concerned departments will have more coordination. The student community must not suffer because of lack of coordination between various departments of the state,” the bench said.

High Court allows NRI woman to record consent for divorce via Skype

The Bombay High Court has allowed an NRI woman to record her consent for a mutual divorce from her estranged husband via Skype or any other video calling technology.

Justice Bharati Dangre, earlier this month, set aside an order of the city’s family court which refused to register the US-based woman’s petition seeking divorce on the ground that she was not physically present to file it.

The woman had challenged the family court order’s in the high court.

Justice Dangre, in her judgement, permitted the woman’s father to act as the holder of her power of attorney to pursue the case.

The HC judge asked the family court to record the woman’s consent for mutual divorce via online video calling technology like Skype.

“Due to globalisation and since educated young persons are crossing the borders of India, it is not possible to remain present (to file petitions),” the HC said.

It also relied on another HC decision which permitted marriage counselling with the help of webcam.

“There is no legal lacunae in filing of the petition through a registered power of attorney. The family court will not insist on the presence of the parties before the court and would arrange for the consent terms to be recorded either through Skype or adopting any other technology,” Justice Dangre said in her order.

The couple got married in 2002 but had been living separately since 2016. The woman later settled in the US.

Last year, they approached the family court seeking divorce by mutual consent.

Govt-appointed toll collection firms need to pay stamp duty: Bombay High Court

 The Bombay High Court has said private firms appointed by the government for octroi and toll collection from vehicles have to pay stamp duty.

A division bench of justices S C Dharmadhikari and Bharati Dangre was recently hearing a petition alleging non-payment of stamp duty amounting to crores of rupees since 2005 by a private firm which was appointed by seven municipal corporations in Maharashtra for collection of octroi and toll.

Relying on a judgement passed by the Supreme Court last month on a similar issue, the high court said the octroi collecting contractors have to pay stamp duty under the provisions of the Bombay Stamp Act. “Such agreements between the civic body concerned and private companies cannot escape stamp duty,” it said.

“The Supreme Court has already decided the issue. Now, it is not debatable,” the court further said.

The petition, filed by city resident Jeet Pratap Satyanarayan Singh through lawyer Laxman Kanal, said a company, M/s Konark Infrastructure, was the toll and octroi collecting agent of the municipal corporations in Bhiwandi, Nashik, Kalyan-Dombivali, Ulhasnagar, Mira-Bhayander and Akola.

“The corporations entered into an agreement with the said company each year and hence, it was the duty of the company to pay the stamp duty and also register the documents with the registrar, under the Registration Act,” Kanal argued.

According to the petition, Konark Infrastructure had not paid the said charges from 2005, resulting in loss to the public exchequer to the tune of crores of rupees.

The bench, after the order on February 22, disposed of the petition.

Bombay High Court fed up with state government over delay in giving land for law University

 Training its guns on the recently-held event ‘Magnetic Maharashtra’ business summit, the Bombay High Court today said the state government had time to hold such mega events but had still not decided on the allotment of land to set up the Mumbai campus of the Maharashtra National Law University.

A division bench of Justices S C Dharmadhikari and Bharati Dangre said the issue of allotment of land for the university has been pending since a year-and-a-half and that now it was “fed up” with the delay.

“The government has time to hold mega events like the one held last week. Now before the next mega event is held, we want this issue to be resolved,” Justice Dharmadhikari said.

The court was hearing a public interest litigation (PIL) filed last year by an advocate, Pradeep Havnur, claiming that no concrete steps were being taken to hand over the land to set up the MNLU.

“We do not understand why this issue has been pending for one-and-a-half years now. We are fed up. We direct the principal secretary of the state revenue and forest department to appear before us with all concerned files on February 28,” the court ordered.

The government announced the project with much fanfare but then took no steps later, the court said.

The bench was informed by the petitioner’s counsel, Milind Sathe, that a government resolution was issued in June 2016 allotting a plot of land, admeasuring 60 acres, in suburban Gorai but a major part of the land was later handed over to the Airports Authority of India.

Sathe said the concerned state department was now trying to identify another plot for the university.

Irked by this, the court said, “We do not understand how such confusion could be created at a senior level. This is, simply, lack of coordination.”

The bench also noted that the government, by allotting part of the Gorai land to the AAI, was also toying with the safety and security of lakhs of persons who use the city airport.

The land, which was allotted to the AAI to shift some offices from the airport in order to decongest the latter, is now embroiled in litigation.

“Have you (government) seen the congestion at the Mumbai airport? It is like a calamity waiting to happen. There is no open space around the airport. There is a parking lot 40 meter away. There are hutments and so many other structures just meters away,” the court said.

“We should salute the pilots for finding the air strip in Mumbai and landing properly. Hats off to them,” Justice Dharmadhikari said.

According to the petition, the MNLU is presently operating from a temporary transit-type ground-plus-one structure.

It contended that the National Law Universities Act 2014 was enacted to establish such universities in states for the development and advancement of legal education, to impart specialised and systematic instructions and training and research in law.

The bench today said because of the delay on the part of the government, it was losing good law students to private colleges.

Time to see if IPL is in interest of cricket: Bombay HC

The Bombay High Court today said the IPL has made people familiar with phrases like “betting and fixing” and in view of the alleged violations of foreign exchange rules it was time to see if the tournament was in interest of the game of cricket.

The scathing remarks were made by a division bench of justices S C Dharmadhikari and Bharati Dangre while passing its order on a petition filed by former Indian Premier League (IPL) chairman Lalit Modi challenging a July 2015 order of the adjudicating authority of the Enforcement Directorate (ED) refusing him the permission to cross-examine witnesses in a FEMA case.

The ED has alleged violations of foreign exchange rules during the 2009 edition of the Indian Premier League (IPL) held in South Africa.

The court allowed Modi’s petition and permitted his legal counsels to cross-examine the witnesses but made strong observations on the tournament.

“If IPL has led to serious violations then it is high time the organisers realise whether what has been achieved by conducting the tournament since the past ten years can be termed as a sport or game…for it is full of illegalities and breaches of law,” the court said.

“IPL has made us familiar with phrases like betting and fixing of matches. It is for the central government, RBI and organisers to now consider if conducting IPL is in interest of the game/sport,” the court said in its order.

The bench while allowing Modi’s petition said the impugned order grossly violates the principles of natural justice as the adjudicating authority was going to rely on the statements of the witnesses against Modi.

The court also noted that the proceedings have been dragged for too long now.

“We direct the adjudicating authority to issue summons to the witnesses to appear before it on March 2. The cross- examination shall be concluded positively by March 13. The proceedings shall be completed by May 31,” the court directed.

In 2013, the ED initiated adjudication proceedings against Modi under the Foreign Exchange Management Act (FEMA) regarding a bank account opened by the BCCI and IPL authorities in South Africa ahead of the 2009 edition of the IPL.

Appointments to public bodies must be based on talent: Bombay High Court

Observing that appointments to all public bodies must solely be based on “talent,” the Bombay High Court has denied relief to a group of lower cadre employees of the city civic body seeking that they be absorbed against the existing vacancies for clerks.

A bench of Justices S C Dharamadhikari and Bharati Dangre recently held that since the Brihanmumbai Municipal Corporation (BMC) was a public body, it was required to maintain transparency and the highest standards of work.

Thus, it would gain more by employing candidates with “more calibre, and fresh blood and vigour,” through fresh selection procedures from time to time, the court said.

The bench was hearing a plea filed by 15 ‘grade 4’ employees of the BMC.

As per the petitioners, in 2011, the BMC issued a circular advertising vacancies for the post of clerks. The eligible candidates were to take an examination and secure the minimum qualifying marks of 40 out of 100.

Since the petitioners met the eligibility criteria, they decided to take the exam as well.

However, while the BMC had around 329 vacancies, 475 applicants secured the minimum qualifying 40 marks. The BMC decided to hire only those who had secured 49 marks and above.

Thus, those who had secured between 40 and 48 marks and made it to the qualifying list, lost out on the job.

In 2014, a reply to an RTI query revealed that the BMC still had vacant positions for clerks.

Subsequently, 15 of those who had lost out on the job in 2011 approached the high court, seeking that they be appointed on the basis of their having qualified in the exam.

The BMC opposed their demand, saying that since 2011 it had made many changes to the eligibility criteria and the minimum qualifying marks for appointments as clerks.

The BMC’s counsel, advocate Anil Sakhre, said the validity of a merit list was only for a year and that the corporation had decided to conduct fresh examinations to fill up the new vacancies.

Sakhre said some of those who had lost out on the job in 2011 had appeared for subsequent exams, secured higher marks and even got appointments at better posts in the BMC.

The bench agreed with the corporation’s stand and said several previous judgements of the Supreme Court established that merely making it to a qualifying or merit list did not grant one the right to employment.

“We are unable to accept the contentions advanced by the petitioners that by clearing a written examination and securing minimum marks, they have the right of being appointed,” the judges said.

“It is a settled position in law that mere placement in the select list or panel does not by itself entitle a candidate to seek appointment,” the bench said.

Many new eligible candidates might appear over the years, and if a public body sticks with just one merit list indefinitely, till all vacancies are filled, it will lose out on candidates with more talent and calibre, it further said.

The public bodies are expected to adopt a transparent procedure and hire new talent, the court said.

“It would be more gainful for the public bodies to secure candidates with fresh blood and vigour and more merit by initiating a fresh selection procedure based only on talent,” the bench said.

“If the public bodies are permitted to operate the select list for years together, it would become a tool for nepotism,” the court said while dismissing the petition.