Collector could not have been so naive: Bombay High Court reserves order in PIL challenging crematorium demolition

The Bombay High Court on Wednesday took exception to the actions of the Mumbai Suburban District Collector in demolishing crematorium located on Erangal beach in Mumbai suburbs..A bench Chief Justice Dipankar Datta and Justice Madhav Jamdar said that the Collector could not have been so naive and acted against the law and demolished the crematorium without giving the owner an opportunity to be heard. This was after the bench was informed by the State that the Collector was merely following orders of the Maharashtra State Coastal Zone Management Authority (MCZMA) when demolition was undertaken.The Court was not impressed with this submission by Additional Government Pleader Abhay Patki, and quipped that the Collector could have informed MCZMA that show cause notice is required to be issued.“The same collector when asked to demolish structures facing the airport, took a wholly different approach, saying there are difficulties to demolish. We were told that the office wasn’t aware whom to issue show cause notice and this is under order of this Court. She cannot be so naive that she cannot tell the (MCZMA) committee that ‘look I need to send show cause notice to those people’. Being a member on that committee, you (Collector) cannot take shelter of the MCZMA order. She must be aware of the law and rules and she is trying to subvert the law here. What we expect the district collector to do is take action in accordance with law,” the Bench remarked..The Court was hearing a public interest litigation (PIL) raising concerns over unauthorized construction of a Hindu crematorium on the beach by the fisherfolk. The petitioner's argument was that the construction was in violation of the Coastal Regulation Zone (CRZ) rules..The Bench during an earlier hearing admonished the swift action of the Collector to demolish the structures and even summoned the officer to court..During the hearing today, the Bench asked MCZMA how it had come to the conclusion that the crematorium structure was illegal and not in accordance with the Coastal Regulation Zone (CRZ) notification of 1991, without having conducted a backdated enquiry as to whether the structure existed prior to the 1991 Rules.To this Senior Advocate Dr Milind Sathe informed the Court that when they received the complaint, they followed their standard procedure and since the structures were found to be not compliance with the 1991 regulations, the Collector was asked to take appropriate action.“With the kind of observations made (in the order) it gives an impression that the structure violates the Regulation. As custodians of power, is it not your duty to find out the facts? You simply do not take any action and shut off recourse? When there is a complaint to the authority, and you are not the fact finding authority, then you should appoint a fact finding committee and ask them to do survey,” the Bench added..Sathe suggested to the Court that the fisherfolk community could reapply to MCZMA seeking permission to reconstruct the demolished structure which could be considered on its merits by the authority.The Court was, however, shown a document wherein on September 12, 2022, the MCZMA had rejected an application seeking reconstruction of the structures on the ground that there were petitions pending in the High Court.Taking note, the High Court proceeded to reserve the plea for orders..Sathe expressed to the Court his apprehension that any order which the Court may pass could used as precedents in other matters.The Court, however, assured him that their order will be limited to this particular case.“We feel that we are fault, the court is at fault, therefore whatever order we pass will not be used as a precedent” CJ Datta said..We feel that we are fault, the court is at fault, therefore whatever order we pass will not be used as a precedentChief Justice Dipankar Datta.This was because the Court itself had passed an order earlier asking the State authorities to take action in accordance with law though it had not anticipated that the whole thing would be swiftly demolished. .Advocate Saket Mone appearing for the petitioners meanwhile clarified to the Court that they had not tried to go out of the way to avoid the Bench.To this CJ Datta reassured that they had nothing against the lawyers in the matter. “This happens at least once in the life of every lawyer. I have been a lawyer myself, and I thought it will affect my future, but nothing of that sort happens,” CJ Datta said.