[Metro car shed project] Mumbai Collector’s order borders on fraud on power: Bombay High Court on Kanjurmarg land dispute

The Court made strict observations against the Mumbai Collector while ordering an interim stay on the transfer of the land at Kanjurmarg to the MMRDA.
[Metro car shed project] Mumbai Collector’s order borders on fraud on power: Bombay High Court on Kanjurmarg land dispute
Mumbai Metro Rail Project, Bombay High Court

The Bombay High Court has expressed its displeasure over the manner in which the Mumbai Collector has passed an order granting possession of land at Kanjurmarg to the Mumbai Metropolitan Regional Development Authority (MMRDA) for the development of its metro car shed.

The Court is presently dealing with a claims staked by the Centre and private parties on the land, which was selected for the metro project by the Maharashtra Government instead of a plot at the Aarey colony.

The Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni on Wednesday were 'aghast' to note that a Civil Application was pending before the High Court dealing with rights over the land when the collector passed his contentious order.

“... the Collector on his own and without waiting for the outcome of such application has passed the impugned order and delivered possession to the MMRDA", notes the High Court's order.

Mumbai Metro Rail Project, Bombay High Court
Mumbai Metro car shed project: Bombay High Court stays ongoing operations on Kanjurmarg land till February 2021

Taking exception to the collector's decision, which was taken without hearing all parties to the dispute, the Court observed,

“We do not wish to be harsh at this stage because all the materials are yet to be placed before us, but cannot desist from observing that the Collector’s action of passing the impugned order in the manner he did does border on committing a ‘fraud on power’.”

We cannot desist from observing that the Collector’s action of passing the impugned order in the manner he did does border on committing a ‘fraud on power’.
Bombay High Court

The Court was hearing pleas pertaining to revenue proceedings in respect of the ownership and possession of a saltpan land measuring 102 acres in Survey No.275 situated at Kanjurmarg, Maharashtra.

The petitions challenge multiple orders passed by executive authorities of the Revenue Department from 2015 to 2020.

The Union’s plea and a plea by private party MG Garodia challenged the Collector’s order dated October 1, 2020, granting the land to the MMRDA.

The Court had on Monday suggested that the collector consider withdrawing his transfer order and grant the parties a fresh hearing.

On Wednesday, the collector intimated that he would withdraw the order only if the MMRDA can continue carrying out the existing operations, while allowing parties to submit their objections which may be considered afresh.

The Court, however, was of the view that the Collector’s order had "serious infirmities in the decision-making process" as he had treated the subject land as property of the State Government and allowed the MMRDA to take possession of the land without giving any opportunity either to the Union or Garodia.

“In a society where ‘Rule of Law’ has primacy, the minimum that we expect of a responsible office as the Collector is to adopt a fair, reasonable and impartial approach. That is unfortunately lacking in the present case. Despite given an opportunity to proceed in accordance with law, he has not availed it”, the Court remarked.

Opining that the plea deserved to be admitted as well as qualify for grant of interim relief “notwithstanding that a public project would be held up in view of the nature of relief that we propose to grant”, the Court decided that the “executive must take the blame for it for being careless in its approach.”

Senior Advocate Shyam Mehta, appearing for Garodia, brought to the Court’s attention that earlier, the Union had suggested providing land at Kanjurmarg to MMRDA for the construction of car-shed in another case before the High Court, i.e. Amrita Prithwishwar Bhattacharjee v. State of Maharashtra.

While hearing that plea, it was informed to the co-ordinate bench that the land at Kanjumarg was not suitable. Hence, the State decided to proceed with the land located at Aarey Colony.

Thus, Mehta argued that the present move of having the Metro car shed at Kanjumarg would seem to be a clear deviation from the policy that was earlier taken, without any valid basis.

In light of the order of earlier order in Amrita Prithwishwar's case, the High Court observed:

"There has been a change in policy with change in the ruling dispensation in the State. While changes can be effected keeping in mind what the larger public interest warrants, extraneous considerations ought not to outweigh all other considerations of propriety, legality and fairness in administrative action. The decision-making process leading to the impugned order does not pass the test of judicial scrutiny on this count. We are conscious of the element of public interest involved in setting up of the Metro car shed on the subject land; at the same time, we cannot remain oblivious if a person is divested of its/his right in property without the authority of law."

The High Court had orally pronounced a stay on the transfer of land at Kanjurmarg on Wednesday, making a prima facie observation that there were multiple claims over the Kanjurmarg land, which needed to be heard and settled before the metro rail project work could commence.

Additional Solicitor General Anil Singh with Advocate Rui Rodrigues appeared for the Union of India. Advocate General AA Kumbhakoni appeared for the State. Senior Advocate Dr Milind Sathe with Advocates Saket Mone, Subit Chakrabarti and Abhishek Salian (Vidhii Partners) appeared for the MMRDA. Maneksha & Sethna represented Garodia.

The Court will hear the plea finally in February 2021.

[Read order]

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