IN THE HIGH COURT
OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1679 OF 2007
WITH
CRIMINAL WRIT PETITION NO. 36 OF 2007
WRIT PETITION NO.1679 OF 2007
Indur Kartar Chhugani. .. Petitioner.
vs.
State of Maharashtra
& Ors. ..
Respondents.
Mr. I.K. Chhugani for Petitioner.
Mr. S.R. Borulkar, Public Prosecutor,
for Respondent nos. 1 & 2.
Ms. Shobha Ajeet Kumar for Rspondent Nos. 3 &
4.
Mr. Abhishek Khane for respondent no. 5.
Mr. S.P. Shetye for respondent no. 6.
WITH
CRIMINAL WRIT PETITION NO. 36 OF 2008.
M/s. Adenwala Marbles Pvt.Ltd., .. Petitioner.
vs.
State of Maharashtra
& Ors. ..
Respondents.
Mr. Naveen Chomal for Petitioner.
Mr. S.R. Borulkar, Public Prosecutor,
for Respondent/State.
Ms. Shobha Ajeet Kumar for Rspondent/BMC.
CORAM: J.N. PATEL, &
SMT. NISHITA MHATRE, J.
DATE : 9TH JANUARY, 2008.
P.C.
. Issue notice to respondents returnable within
one week. Public Prosecutor waives service for
respondent State. As the subject matter of the
petition raises an issue which is being dealt
with by
this Court in the Public Interest Litigation
filed by
Mr. Chugani. The petition to be heard along with
Public Interest Litigation.
2. This Court adjourned the matter for today to
ascertain whether the respondents have taken
necessary
action in respect of the unauthorised police
chowkies
which was based on the affidavit filed by Mr.
Hemant
Karkare, Joint Commissioner of Police, Brihan
Mumbai.
The Petitioner has drawn our attention to the
additional facts gathered by him during the
interregnum
period. It will be proper he places it on record
by
way of an affidavit and file compilation of
photographs
obtained by him. The petitioner has expressed to
this
court that he has been threatened with dire
consequences by the police that he may be done
away
with in an accident if he agitates the matter.
3. With deep anguish, we record that this is not
expected of the police force. Rather than mending
their own ways, they are trying to threaten
citizens
with dire consequences. As we have no reason to
disbelieve the statement made by the petitioner,
we
make it clear that if any harm visits the
petitioner,
the Home Department and the Commissioner of
Police,
Greater Mumbai will be solely responsible for the
consequences.
4. In so far as the Municipal Commissioner, MCGM
is concerned, he has communicated to the Police
Department that under the D.C.R. Rules of 1991,
Rule 4
(2) exempts operational structures erected by the
government departments and, therefore, the beat
chowkies which are operational structures
constructed
by the Home Department can be considered for the
said
purpose and, therefore, they do not require any
permission from the Municipal Corporation. With
all
humility at our command, we may express that the
Municipal Commissioner is not justified in
issuing such
a communication to the police department in
reference
to various unauthorised and illegal police
chowkies
which are subject matter of this petition. It
appears
that the Municipal Commissioner without assessing
the
object and spirit of Rule 4 (2) of the D.C.R.
Rules,
1991 has given a blank cheque to the police
department
to construct chowkies as per their whims and
caprice
including its own and without assessing whether
it
causes obstruction to the public at large in so
far as
it relates to smooth movement of traffic and
footpath
for pedestrians. The Court can take judicial
notice of
the fact that footpaths are already encroached by
hawkers and unauthorised structures and most of
the
unauthorised chowkies of which grievance is made
in the
petitions are either abutting the footpath or on
the
road itself. This Court will highly appreciate if
the
Municipal Commissioner personally gets all the
police
chowkies so erected examined by the team
consisting of
Chief Engineer, Traffic Engineer and the Zonal
Engineer
of the Department. Otherwise he would not have
issued
the circular dated 2.1.2008 which is shown to us
by the
learned Public Prosecutor. This only indicates
the
casual manner in which the Municipal Commissioner
has
treated the issue.
5. Unfortunately today the learned counsel
appearing for the Municipal Corporation has no
assistance as none of the officials of the
Municipal
Corporation are present. The least expected was
that
the Traffic Engineer of the Municipal Corporation
ought
to have remained present with the report as to
whether
this circular dated 2.1.2008 has been issued
after
conducting a proper survey or not and, therefore,
the
learned counsel appearing for the Corporation is
not in
a position to assist us in any manner.
6. It has been brought to our notice that most of
the police chowkies are abandoned and unlawful
and
anti-social activities are operational from such
abandoned police chowkies. Further, the police
chowkies are used for the purpose of supply of
water to
hawkers apart from the police department itself
being
beneficiary of various facilities such as free
water,
free electricity, free cable connection.
7. In so far as Khar Police Station is concerned,
two such police chowkies within their
jurisdiction have
been pointed out to us. One is at the distance of
less
than half a kilo meter from the main police
station,
right on the road and is double storeyed. The
learned
public prosecutor, for the present, is unable to
put
forth any justification for having such a chowky
on the
site which not only obstructs smooth flow of
traffic
but even pedestrians. From the photographs we can
find
that there is an electricity pole right in front
of the
chowky in the centre of the road. One can imagine
the
plight created by erecting the chowky on the
road,
causing obstruction to traffic and persons using
the
road and the difficulties they must be facing in
negotiating the place. Another chowky is near
National
College which is almost abandoned. It has a pipe
line
supplying water to the police chowky from where
water
is supplied to the hawkers catering to the needs
of the
students and citizens in the area, as these
hawkers are
selling eatables and obstruct the whole lane, of
course, by encroaching upon the road patronised
by the
police. In spite of these glaring facts brought
on
record, no action is taken against the Senior
Police
Inspector of Khar Police Station. The learned
Public
Prosecutor submits that this has been brought to
the
notice of the Court today itself. We would like
the
Public Prosecutor to understand that the police
is not
supposed to act only when the things are brought
to the
notice of the Court. They have their own net-work
to
gather intelligence to combat offences like
terrorism
and Organised crime and they are blind to these
simple
things because it is patronised by their own
police
officers. Less said the better. This Court hopes
that
the police would act on their own and this Court
do not
propose to demoralise the police force. This
Court
still hopes that the Senior Police Officials
would
rectify the problem and revert back to the Court
on the
next date.
8. None of our observations should be taken as
indicting any police officials. We expect that
the
senior police officials act on their own with
responsibility and discharge their duty of
enforcing
the law. In this case it is found that the two
chowkies in which illegal activities are carried
out,
are patronised by Khar Police Station itself, and
there
is no reason why disciplinary action should not
be
taken against the Senior Police Inspector
Incharge of
the said Police Station. The learned Public
Prosecutor
assures us that these two police chowkies in Khar
within the jurisdiction of Khar Police Station
would be
demolished within a week’s time and the one
which is
subject matter of Writ Petition No. 36 of 2008
located
opposite Goldeoul Mandir within the jurisdiction
of
V.P. Road Police Station would also stand
demolished.
In case the Home Department is of the view that
the
police chowky is required at the site they will
obtain
appropriate sanction and construct proper chowky
and
take preventive action to see that no illegal
activities are permitted to be carried out from
these
police chowkies. This applies to all the police
chowkies in so far as the illegal activities are
concerned.
9. Another issue raised by the petitioner is that
on the last date he has appraised the Court that
the
Senior Police Inspector of Khar Police Station
has
furnished wrong information under the RTI Act and
this
Court expressed that the official would at least
express apology for furnishing such false
information
and rectify his mistake. But, it has been pointed
out
to us that instead of acting as a law abiding
citizen
and conducting himself as per the expectation of
the
Court, the officer has rather flouted the
observation
made by the Court with impunity and furnished
further
false information, which he proposes to put on
record.
We make it clear that in future if this Court
comes
across such conduct on the part of the police
officers,
it would not hesitate to exercise its
jurisdiction
under Article 215 of the Constitution of India.
10. The Court further likes to caution the
respondents that in case they do not act in
accordance
with law in complying with the orders passed by
this
Court, this Court would be left with no choice
but to
summon the senior officials of the Municipal
Corporation i.e. Municipal Commissioner,
Commissioner
of Police and Director General of Police to
remain
personally present in the Court as Mr. Hemant
Karkare,
Joint Commissioner of Police, (Administration)
Brihan
Mumbai is not probably empowered to take any
decision
to implement the order of this Court. We will
highly
appreciate if the learned Public Prosecutor gives
us
the name of the authority who can act upon our
orders
and take necessary steps so that this Court can
even
call the highest officials in the hierarchy i.e.
the
Additional Chief Secretary (Home) and the
Additional
Principal Secretary, Urban Development Department
to
personally remain present in the Court if they
fail to
take decision in the matter and act accordingly.
11. This Court is required to pass such an order
as
it has found that inspite of giving sufficient
opportunity to the respondents, they have not
taken any
steps in proper direction to comply with the
orders of
this Court except for obtaining clarification
from the
Municipal Commissioner which he has obliged by
issuing
the circular dated 2.1.2008. We expect that on
the
next date the Traffic Engineer shall personally
remain
present in Court with the relevant record to
assist the
Law Officer.
12. S.O. for one week so far as police chowkies
identified by the Court and specified in the
order are
concerned and for submitting comprehensive action
taken
report in the matter, the Court will give further
time.
But, that does not mean that the authorities
would wait
for the Court order as they can act on their own
as per
the affidavit filed by Mr. Hemant Karkare on the
last
date.
13. The learned Public Prosecutor and the learned
counsel appearing for the Municipal Corporation
to
communicate this order to their highest officials
so
that they can act upon it.
(J.N. Patel, J.)
(Smt. Nishita Mhatre, J.)
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