N.M. jamdar, J.@mdashIn this petition under Article 226 of the Constitution, the petitioner has essentially prayed for a direction to disband the Committee constituted by this Court as per order dated 16 March 2001 in Writ Petition Nos.2197 of 1998 and 1963 of 2000. The petitioner has also prayed for a direction to frame guidelines for working of the Committee for beautification of the Girgaum Chowpatty Beach and define the scope of work of the Committee. In the year 2000, writ petitions in the nature of public interest litigation were filed before this Court making a grievance against the state of affairs of the Girgaum Chowpatty Beach. There were stalls selling eatables and the location of the stalls was not only haphazard but also obstructed the view of the sea from the road and did not permit optimum use of the beach for the public. The petitioner had also prayed before the Court that the steps be taken for beautification of the Chowpatty Beach. The parties assisted the Court in framing a scheme for beautification of the Chowpatty Beach and also for taking appropriate measures including relocation of the stalls for eatables in such a manner that the stalls for eatables can continue to cater to the public without obstructing the access to the sea and without obstructing the view of the sea. There were also unauthorised encroachments on the beach. From time to time, various directions were given by the Court. Ultimately, the Court not only ensured that the stalls were properly relocated but also that they were provided all the amenities like filling of land, water, etc. The Court also dealt with the situation where some fishermen had without obtaining permission from any authorities erected temporary structures on the beach where they were residing and storing their equipments. The Municipal Corporation was required to take action. Ultimately, the Court appointed a Committee comprising of the following persons:
(a) Mr. Justice S.C.Pratap, Retired Chief Justice of A.P. High Court, who shall act as Chairman of the Committee.
(b) The Collector, Mumbai.
(c) Additional Municipal Commissioner (City), who shall act as Member Secretary.
(d) Mr. Rahul Mehrotra, AGNI.
(e) Mr. N.H. Seervai.
(f) Two members to be co-opted by the above Committee members from the medical profession and industry.
The Court made it clear that the Committee was appointed to be in overall charge of ensuring implementation of the Scheme as well as for preservation of the beautification of Chowpatty Beach and in case of any difficulty, liberty was given to approach the Court for directions.
2. It is necessary to note that when the Committee was constituted, it was to have 7 members out of whom only one member was an official member i.e. Additional Municipal Commissioner (City) to act as Member Secretary. However, by now, the number of members of the Committee has gone up to 20, out of whom as many as 15 members are official members including the Collector of Mumbai City, Police Officers, Officers of the Municipal Corporation including Assistant Health Officer, Officer of the Maritime Board, officer from the State Excise Department, three senior officers of the Fisheries Department of the rank of Assistant Commissioner and Deputy Director, a representative of the Maharashtra Tourism Development Corporation being the Manager of Adventure Sports, and only 5 members are non-citizen members.
3. The learned counsel for the petitioner has submitted that the executive authorities must function on their own and they cannot continue to govern under the Committee appointed by the Court for all time to come. The learned counsel for the petitioner has heavily relied on the following observations in para 36 of the judgment of Justice Katju in
36. We would also like to advert to orders by some courts appointing committees and giving these committees power to issue orders to the authorities or to the public. This is wholly unconstitutional. The power to issue a mandamus or injunction is only with the court. The court cannot abdicate its function by handing over its powers under the Constitution or CPC or CrPC to a person or committee appointed by it. Such "outsourcing" of judicial functions is not only illegal and unconstitutional, it is also giving rise to adverse public comment due to the alleged despotic behaviour of these committees and some other allegations. A committee can be appointed by the court to gather some information and/or give some suggestions to the court on a matter pending before it, but the court cannot arm such a committee to issue orders which only a court can do.
4. The learned counsel for the Municipal Corporation as well as Mr. D.A.Nalawade, Government Pleader have opposed the petition and submitted that the Committee has been rendering valuable services as Coordination Committee. It is also submitted that out of 20 members as many as 15 members are official members from different authorities like Collector of Mumbai, Police Department, Maritime Board, Fisheries Department, Tourism Development Corporation etc. It is submitted that since there are only 5 private members as against 15 official members, the petitioner is not justified in contending that the Committee is an extra constitutional authority.
5. The learned counsel also relied upon the other observations in the said judgment. We have given anxious consideration to the rival submissions. In the first place, the observations contained in para 36 of the decision in Common Cause, cannot be considered as the law laid down on the subject, for the simple reason that the observations of one of the learned Judges have not been accepted by the other learned Judge of the two Judge Bench. This will be clear from paras 65 and 66 of the judgment of Justice H.K.Sema which read as under:
65. I, however, respectfully dissociate myself from certain general observations of my learned Brother in paras 36,37,38,39,43,44,45,46,47,48,49,50,52,53 and 55 in the judgment, expressing doubts about the jurisdiction of this Court entertaining the petition in the form of public interest litigation.
66. I also respectfully disagree with certain observations made by a two-Judge Bench of this Court in Divl. Manager, Aravali Golf Club v. Chander Hass, as referred to by my Brother in para 8 of his judgment."
6. Apart from the above aspect, we find considerable substance in the submission of the learned Government Pleader and the learned Counsel for the Municipal Corporation that when the Committee comprising 20 members of whom 15 are official members from different statutory authorities has been rendering yeoman services as a Coordination Committee and the State Government as well as the Municipal Corporation have no objection to the Committee continuing to render its services, we see no reason to disband the Committee.
7. We may also note that the petitioner himself has set out guidelines proposed by the Committee in para 15 of the petition, some of those guidelines are as under:
1. The Citizens will be permitted to use the portion of the said Chowpatty beach, as an access with or without vehicles for immersion of Ganesh, Durga and ancillary idols and other decorations preferably made of materials which is ecofriendly and which can easily dissolve in water without polluting the sea water.
Guideline Nos.2 to 5 refer to the permission to be granted for certain celebrations like Ganesh Chaturthi immersion etc.
6. Except the said activities on earmarked days, no other activities of any nature whatsoever shall be permitted on the said Chowpatty beach.
7. The Municipal authorities shall ensure that the beach is restored back to its normal condition as early as possible after the said immersions and the functions mentioned above.
8. It is clarified that no political meetings or rallies or gatherings shall be permitted at Chowpatty.
9. It is clarified that the Chowpatty beach shall always be open to the public at all times.
10. No hutments or any encroachment of any kind shall be allowed on the Chowpatty beach. The Municipal Authorities, the State Government, the Police and the Office of the Collector of Mumbai, shall be responsible to ensure that no hutments or encroachments come on the beach.
8. The learned counsel for the petitioner made a grievance against some of the suggestions given by the Committee. It is always open to the petitioner or any other person to make an appropriate suggestion to the Committee and to move this Court for challenging any action or inaction on the part of the Committee as per the liberty granted by this Court while constituting the Committee.
The aforesaid suggestions made by the Committee were framed as guidelines vide order dated 13 October 2005 of this Court. It is, therefore, clear that the Committee does not do anything which would run counter to any statutory provisions nor is there any abdication of statutory functions by any statutory authority. The coordination of functioning of various Government and official agencies cannot be stigmatized as outsourcing of Government function as alleged by the learned counsel for the petitioners.
In view of the above discussion, we find no merit in the petition. The petition is accordingly dismissed.
