‘Court’s machinery abused’: HC questions ‘high handedness’ in demolition of fisherfolk’s crematorium

The court also pulled up the Maharashtra Coastal Zone Management Authority (MCZMA) and the Mumbai suburban district collector for showing “undue haste” in demolishing the crematorium, which was in operation since 1995.

“Prima facie, we have observed that machinery of this court has been abused to remove the crematorium. Having regard to the documents placed before us, we find that even in 1995, the crematorium was in operation and there had been an instance of cremation on November 2, 1995,” the court observed.

The court asked the Brihanmumbai Municipal Corporation (BMC) to inform it whether the crematorium was in operation prior to the CRZ notification of 1991 (that mandated MCZMA clearance for constructions in the CRZ area) coming into force. The HC also asked senior advocate Anil Sakhare for the civic body to produce a register pertaining to deaths before 1991 regarding the crematorium in question.

The bench noted that the fishermen community who run the said crematorium were not made party in the petition and were not issued show cause notice by collector’s office before the demolition process was carried out. It also noted that a local legislator had contributed from MLAs’ funds for the crematorium and questioned as to how the MCZMA officers were unaware about the same. “You cannot just demolish structures against the rights of the depressed without following due procedure,” the bench said.

A division bench of Chief Justice Dipankar Datta and Justice Madhav J Jamdar was hearing a plea by Chetan Vyas, who had challenged the construction of the allegedly unauthorised Hindu crematorium on the beach by the fishing community and had said that the same was in violation of Coastal Regulation Zone (CRZ) rules.

On Monday, Mumbai Suburban district collector Nidhi Choudhari remained present in the court as per the summons issued to her last week for “arbitrary” demolition.

The bench noted that it had been adjourning the matter since it found something amiss in the plea, however, an order for inspection of the said structure was obtained through another bench in October last year when the Chief Justice was not in town. Chief Justice Datta said that the coordinate bench’s order intended the due procedures, including issuance of show cause notice, be followed before taking any action of demolition.

The court had noted that despite passing several orders everyday, the collector’s office would not take action against violations, but in the present case, prompt demolition action was taken.

“Even without touching the print we could smell something. There are hotels nearby and so many other constructions. The hotel must have made this person (petitioner) file this petition. Otherwise, why would he care about the crematorium and make allegations against the fisherfolk community and get an order (from another bench) when the Chief Justice is not in town?This is what struck us. This is the grossest violation of natural justice right from the beginning,” the bench orally remarked.

“If something has come up illegally ,it has to be removed but why should the court’s machinery be activated by persons who don’t have public interest but have their own vested interests? Why hasn’t the procedure been followed?” the bench said.

Advocate Abhay Patki, representing the collector, submitted that the demolition was carried out based on MCZMA order, although, the fisherfolk were not issued any show cause notice prior to the action.

Senior advocate Milind Sathe for MCZMA submitted that the crematorium was constructed within the CRZ area without obtaining environmental clearance and, therefore, there was no “illegality” in directing demolition.

Seeking BMC’s response, the bench posted further hearing to Wednesday.