Mumbai: The Bombay High Court, while ordering demolition of the multi-storeyed Adarsh Housing Society here, has squarely blamed its members for conspiring with politicians and bureaucrats to grab a plot "which was not in existence" in the development plan as a residential area.
It was "carved out" by eating into a road, it said. Members of the Society happened to be close relatives of highly-placed bureaucrats and or related to politicians or ministers, said a division bench of Justices Ranjit More and Rajesh Ketkar in the 223 page-judgement which became available today.
On April 29, delivering the operating part, the HC had sought criminal proceedings against politicians and bureaucrats for "misuse" of powers, holding that the Society, originally meant for Kargil war heroes and war widows, was constructed illegally.
"We are more than satisfied that the allotment was not made in a transparent manner and it clearly smacks of favouritism and/or nepotism," the judgement said. "It cannot be disputed that bureaucrats and ministers are the custodians of government property....People repose confidence in them that the government property is safe in the hands of bureaucrats and ministers.
"Prima facie, they have dishonestly disposed of the property in violation of law," the bench observed. "...the bureaucrats and the ministers are guilty of various offences in acquiring the plot as also misuse and/or abuse of powers. We hereby direct the state government to consider initiating appropriate civil/criminal proceedings against the concerned bureaucrats, ministers and politicians," the judges further said.
The lower courts will, however, decide the cases as per the merit and evidence, uninfluenced by HC's observations, it added. The judges also directed the state government and the Centre to consider departmental inquiry against the officials.
It also directed the Ministry of Defence to hold an in-depth inquiry to find out the lapses or reasons on the part of its officers for not filing a writ petition in the matter at the earliest.
The court asked the Defence Ministry to hold an inquiry to find out whether the General Officers Commanding (GOCs) between 1999 and July 13, 2010, namely, Maj General A R Kumar, Maj General V S Yadav, Maj General T K Kaul, Maj General Tejinder Singh and Maj General R K Hooda compromised the security of CMS (Colaba Military Station) in return for allotment of flats in Adarsh.
The bench drew on the report of Justice J A Patil Commission, appointed by the state government to probe the role of senior bureaucrats and politicians including former Chief Ministers Vilasrao Deshmukh and Ashok Chavan, in the judgement.
On whether clearance from Ministry of Environment and Forests (MoEF) was required, the HC said that considering the object of Environment Protection Act and the Coastal Regulation Zone (CRZ) Notifications of 12.11.1997, the clearance of MoEF or authorities at state level was needed.
"On April 10, 2002, the state government reduced the width of Captain Prakash Pethe Marg from 60.97 metres to 18.40 metres. The area so deleted was included partly in residential among others (for Adarsh Society)," the judgement said.
"Without obtaining prior approval of Maharashtra Coastal Zone Management Authority (MCZMA), the state government could not have changed the reservation from road to residential." The High Court refused to accept the Society's contention that a letter sent by MoEF to the state Urban Development Department (UDD) on March 11, 2003, can be held as a clearance for construction from the union ministry.
The letter dated March 15, 2003, written by P V Deshmukh, then Deputy Secretary of state UDD, to Adarsh Society stating that MoEF had given clearance for construction was "totally uncalled for" and this letter was issued a few days before Deshmukh himself applied for membership in the society, the court noted.
The adjoining BEST plot and the land on which the Adarsh building was constructed were two separate plots, hence the Society cannot use the FSI from the BEST plot, the HC said. "Petitioners have not obtained environmental clearance either from MoEF or from state-level agency and we have held that the recommendations of MCZMA are mandatory and environmental clearance is also necessary," HC said.
"We have come across cases where people by using money or muscle power as also political influence try to secure allotment of land. This case goes one step further," the court observed.
Regarding reduction of the width of Prakash Pethe Marg, the bench referred to Patil Commission's finding that it was not at all in public interest and was meant only to serve the interests of the private Society (Adarsh).
Considerations of traffic congestion and security operations of Army during emergency were totally ignored, the HC said citing the report.
"Ultimately, the Commission findings said that the reduction of the proposed width and change of reservation from road to residential in respect of Capt Prakash Pethe Marg was not in accordance with the provisions of MRTP Act (Maharashtra Regional and Town Planning Act) and it was illegal and mala fide," the judges said.
"...no notice was given (as per the Act) to the Minister of Defence which is an affected party by the said modification (in Development Plan) pertaining to reduction in the width," the HC noted.
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