Setting Up of a Memorial is a Policy Decision Beyond Judicial Review Unless Manifestly Arbitrary: Bombay HC Upholds Thackeray Memorial at Mayor's Bungalow

Bombay High Court Upholds Balasaheb Thackeray Memorial at Mayor's Bungalow, Citing Policy Decision Immunity

Mumbai: The Bombay High Court, in a significant judgment, has dismissed a series of Public Interest Litigations (PILs) challenging the establishment of the Balasaheb Thackeray Rashtriya Smarak (Memorial) at the site of the former Mayor’s Bungalow in Shivaji Park. A division bench comprising Chief Justice Alok Aradhe and Justice Sandeep V. Marne ruled that the decision to set up a memorial is a policy matter of the State Government, and courts should be loath to interfere unless the decision is procedurally flawed or manifestly arbitrary.

---

Background of the Case

The court heard a batch of four PILs filed by petitioners including Santosh Daundkar , Jan Mukti Morcha, and others. The petitions collectively challenged several government actions, including: - The 2016 Government Resolution approving the memorial at the Mayor's Bungalow. - The amendment to Section 92 of the Mumbai Municipal Corporation (MMC) Act, 1888, which allowed leasing the prime property to the memorial trust for a nominal rent of ₹1 per annum for 30 years. - The change in the land's reservation from 'Mayor’s Bungalow' to 'Memorial' and its zoning from 'Green Zone' to 'Residential Zone'. - The composition of the memorial trust, which includes members of the Thackeray family and the Shiv Sena party.

---

Arguments from Both Sides

Petitioners' Arguments: The petitioners, represented by senior advocate Sunip Sen and Dr. Uday Warunjikar , argued that the entire decision-making process was arbitrary and irrational. They contended that: - The change of land use and zoning was done in gross violation of the Maharashtra Regional Town Planning (MRTP) Act, without adequate public consultation. - Amending the MMC Act to lease a property worth crores for a nominal fee was a manifest abuse of legislative power. - The memorial trust was constituted like a "private trust" or a "close family affair," with lifetime appointments for several trustees, undermining its public character. - The conversion of the adjoining Municipal Gymkhana for the Mayor's new residence resulted in the loss of a public amenity.

Respondents' Defence: The State Government and the Trust, represented by senior advocates Darius Khambata and A.Y. Sakhare , countered that: - The establishment of a memorial for a revered public figure like Balasaheb Thackeray is a well-settled "public purpose" and falls squarely within the government's policy domain. - All procedural requirements under the MRTP Act, including inviting and hearing public objections, were duly followed for the change in the development plan. - The amendment to the MMC Act was within the State Legislature's competence, and the petitioners failed to prove it was "manifestly arbitrary." - The composition of the trust, which includes senior government officials as ex-officio members, was appropriate, and the inclusion of family members was justified given the nature of the memorial.

---

Court's Reasoning and Legal Principles

The High Court systematically addressed each challenge, grounding its decision in established legal principles regarding the scope of judicial review in policy matters.

On Policy Decisions and Public Purpose: The bench firmly stated that the choice of a site for a memorial is a policy decision beyond the court's purview. Citing precedents like Kanaiyalal Maneklal Chinai vs. State of Gujarat , the court observed:

"It is well settled that matters of policy must be left to the Governments. Courts will not and should not substitute its own judgment for the judgment of the executive in such matters... When it comes to setting up of memorials for leaders and persons revered for their contribution, it is also well settled that such act constitutes a public purpose..."

The court found the selection of the Mayor's Bungalow, after considering eight different sites, to be a "well-considered decision" and refused to interfere.

On Legislative Amendment: Regarding the challenge to the newly inserted Section 92(dd-1) of the MMC Act, the court noted the absence of any challenge to the legislature's competence. The only available ground for challenge was "manifest arbitrariness," a high threshold. The judgment stated:

"While testing the validity of law on the ground of manifest arbitrariness, the Courts have to determine if the statute is capricious, irrational and without adequate determining principle... Petitioners have failed to plead, much less establish, any manifest arbitrariness in enacting Section 92(dd-1) of the MMC Act."

On Procedural Propriety: The court examined the process followed for changing the land use under the MRTP Act and found no procedural lapses. It concluded that suggestions and objections were invited and considered, and the final notification merely changed the label from 'Mayor's Bungalow' to ' Balasaheb Thackeray Rashtriya Smarak' and rezoned the land after due process.

---

Final Verdict and Implications

In its concluding remarks, the court took judicial notice of the fact that the memorial's construction is virtually complete and that the heritage structure of the bungalow has been preserved and restored.

The bench dismissed all petitions, stating, "Considering the overall conspectus of the cases, we do not find that any valid ground of challenge is made out in any of the petitions to the decision of the State Government and MCGM in establishing the Memorial."

This judgment reinforces the principle of judicial restraint in matters of executive policy, clarifying that unless there is a clear violation of fundamental rights, procedural impropriety, or manifest arbitrariness, courts will not sit in appeal over the government's administrative and legislative decisions.