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2011 Supreme(Bom) 623
2011 (4) ALLMR 678
High Court of Judicature at Bombay
MR. MOHIT S. SHAH & MR. JUSTICE D.G. KARNIK
Jamshed Kanga & Others
Versus
The State of Maharashtra & Others
PIL WRIT PETITION NO.133 of 2006
Decided On: 10-06-2011
For the Petitioners:Vivek Menon with Gautam Patel and T. Jariwala i/b Thakore Jariwala & Associates, Advocates.
For the Respondents:R7, D.J. Khambata, Additional Solicitor General with C.S. Balsara i/b A.S. Dayal Associates, Ravi Kadam Advocate General with K.R. Belosey with N.P. Pandit, A.G.P., K.K. Singhvi, Senior Advocate for the BMC, R4, G. Hariharan, Advocates, Janak Dwarkadas, Senior Advocate with Mr. D.D. Mehta i/b Madekar & Co. for the applicants (interveners).
Headnote:Mumbai Municipal Corporation Act, 1888 - Section 91-AA(2)-Development Control Regulations for Greater Mumbai, 1991, Explanation IV to Regulation 9-Cooperage ground-Grant of lease of-Permission for development of cooperage ground-Can be granted by State notwithstanding any provision to contrary in MRTP Act and D.C. Regulations-Subject to prior approval of Architect to Govt. of Maharashtra.-Sub-section (2) of Section 91-AA of the MMC Act permits the State grant of lease of the Cooperate ground for the purpose of construction of football stadium with ancillary structures mentioned above, irrespective of any restriction for construction of a club house and ancillary structures under the MRTP Act or the DC Regulations framed thereunder. The effect of sub-section (2) of Section 91-AA of the MMC Act is to remove the restrictions on the development imposed under the MRTP Act and the DC Regulations, where a lease (of the Cooperage ground) has been granted by the Government for construction of a football stadium with ancillary structures. In case of a lease granted by the Government in accordance with sub-section (2) of Section 91-AA of the MMC Act, construction of a football stadium with ancillary structures shall be governed by the terms and the lease and is not to be treated as prohibited by the MRTP Act or the DC Regulations. Clause (2)(d) of the lease deed specifically permits respondent No. 7 to build, construct or erect on the demised land (the Cooperage ground) a permanent stadium and other ancillary structures such as dormitory, library conference rooms, gymnasia, canteen, Courts for indoor games, residential quarters, club house and other amenities subject to the prior approval in writing of the architect to the Government. Clause 2(e) of the lease deed provides that the construction of no building shall be commenced unless the plans have been previously approved in writing by the architect to the Government of Maharashtra. The lease deed thus contemplates prior permission of the architect to the Government of Maharashtra to be obtained before commencement of the construction. In Court’s view, in view of sub-section (2) of Section 91-AA of the MMC Act, permission for development of the Cooperage ground can be granted notwithstanding any provision to the contrary in the MRTP Act and the DC Regulations but subject to the prior approval of the architect to the Government of Maharashtra.
Mumbai Municipal Corporation Act, 1888 - Section 91-AA(2)-Development Control Regulation for Greater Mumbai, 1991, Explanation IV to Regulation 9-Cooperage plot-Structures on-Construction and development-Construction of football stadium with ancillary structures on cooperage plot-D.C. Regulations not attracted to-Construction and development to be only subject to prior approval of Architect to Government of Maharashtra in view of Section 91-AA(2) of Act.-The Explanation IV to Regulation 9 of the DC Regulations would not be applicable to the construction of the football stadium with ancillary structures on the Cooperage plot and the construction and development would be only subject to the prior approval of the architect to the Government of Maharashtra in view of sub-section (2) of Section 91-AA of the MMC Act.
D.G. Karnik, J.
1. By this petition, the petitioners challenge the order dated 9 July 2009 passed by the then Chief Minister Mr. Sushilkumar Shinde allowing an appeal under section 47 of the Maharashtra Regional Town Planning Act, 1966 (for short “the MRTP Act”) and thereby granting permission to the respondent 7, the Western India Football Association (for short “WIFA”) permission to develop a plot of land bearing C.S. No. 4, Fort Sub-Division, Mumbai (commonly known as “the Cooperage plot”) by carrying out construction to the extent of 12052 sq. m (about 1,29,700 sq. feet) consuming 0.5 FSI of the total recreational ground admeasuring about 28,412 sq. m. The petitioners also seek a direction to the respondents restraining them from permitting in any manner the use of Cooperage plot in the Cooperage area for non-sporting activities such as holding of wedding receptions and other social functions unrelated to sports. The petitioners have also challenged the vires of section 91AA(2) of the Bombay Municipal Corporation Act, 1888 which in the year 1996 was renamed as Mumbai Municipal Corporation Act, 1888 (for short “the MMC Act”).
2. The petition has been filed in the public interest by the citizens living around and in the vicinity of the cooperage plot who have formed an association called the Oval Cooperage Residents Association (for short “the OCRA”). The petitioners 2 to 4 are members / office bearers of the OCRA. The petitioner 5 is a non-government, non profit organisation which seeks to protect, conserve and promote India’s natural and culture heritage. It’s first Chairman was former Prime Minister of India late Mr.Rajiv Gandhi. Late Ms. Pupul Jaykar, late Mr. Madhavrao Scindia and late Mr. Mulk Raj Anand in their life time were its members. Petitioners 6 and 7 are the cooperative housing societies of the residents in the locality. Respondent 1 is the State of Maharashtra, respondent 2 is the municipal corporation and respondent 3 is the Commissioner of Police, Mumbai. Ministry of Environment and Forests is joined as respondent 4 and the Municipal Heritage Conservation Committee is joined as respondent 5. Collector of the City of Mumbai is respondent 6 and the WIFA who is proposing to carry out the construction is respondent 7.
Basic Facts
3. In the early Eighteenth Century, the Cooperage ground was a part of “The Esplanade”, a vast area/maidan that stretched from Azad and Cross Maidan (north) to the Oval and Cooperage Maidan (south). In 1860s, the Esplanade was divided into 4 major sections viz. The Cooperage, the Oval maidan, the Cross maidan and the Azad maidan. Between the years 1904 and 1933 the Cooperage was developed by the Improvement Trust (set up by the Government in the year 1988 with the mandate to decongest the city) with a large area reserved as a recreational ground which was opened to public. In the year 1933, the MMC Act was amended to introduce section 91A to 91C therein and under sub-section (1) of section 91A, all the estate, right, title and interest in the Cooperage and other lands and properties of the Improvement Trust including the lands described in Schedules W, X and Y vested in the Mumbai Municipal Corporation.
4. It appears that the original Cooperage was thereafter divided into four parts,
(i) the southernmost part is occupied by the Bandstand with traffic park, playgrounds and parking lot,
(ii) the second part to the north of and adjoining to the Bandstand is occupied by the Sailor’s Home comprising of a club house for non officer ranks of the Indian Navy. This part is partly built up with surrounding open ground,
(iii) the third part to the north of and adjoining the Sailor’s Home is occupied by the Maharashtra State Lawn Tennis Association and consists of a small club house and tennis courts,
(iv) the northernmost part consists of open land admeasuring about 28189 sq. meters and is in occupation of the respondent 7 since July 1969 under a lease. This portion forms the subje
