Bombay High Court
Santosh Daundkar vs Secretary Ministry Of Invironment, … on 1 July, 2025
2025:BHC-OS:9755-DB
Neeta Sawant Pub. Int. Litigation (l)- 51/2017 a/w.-fc
PILS-40/2019, 81/2017, 9/2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION (L.) NO. 81 OF 2017
Jan Mukti Morcha ....Petitioner
: Versus :
State of Maharashtra & Ors. ....Respondent
Alongwith
PUBLIC INTEREST LITIGATION NO. 40 OF 2019
Pankaj Rajmachikar ....Petitioner
: Versus :
State of Maharashtra & Ors. ....Respondent
Alongwith
PUBLIC INTEREST LITIGATION (L.) NO. 51 OF 2017
Bhagvanji Rayani ....Petitioner
: Versus :
State of Maharashtra & Ors. ....Respondent
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Alongwith
PUBLIC INTEREST LITIGATION NO. 9 OF 2019
Santosh Daundkar ....Petitioner
: Versus :
Secretary, Ministry of Environment
Forest and Climate Change, Indira
Paryavaran Bhavan & 6 Ors. ....Respondents
Mr. Sunip Sen, Senior Advocate with Ms. Rujuta Patil and Mr. Yohaan Shah
i/b Negandhi Shah & Himayatullah, for Petitioner in PIL/40/2019.
Dr. Uday Warunjikar, for Petitioner in PIL(L)/81/2017.
Mr. Darius J. Khambata, Senior Advocate with Mr. Joel Carlos i/b Mr.
Yogesh Patil & Mr. Tushar Hathiramani, for Respondent No. 3 in
PIL(L)/51/2017, PIL/40/2019, PIL(L)/81/2017 & for Respondent No. 7 in
PIL/9/2019.
Smt. P.H. Kantharia, Govt. Pleader with Mrs. Jyoti Chavan, Addl. GP for
State-Respondent No. 1 in PIL(L)/51/2017, PIL/9/2019.
Smt. Jyoti Chavan, Addl. GP for State, Respondent No. 1 in PIL(L)/81/2017.
Mr. Milind More, Addl. GP for State, Respondent No. 1 in PIL/40/2019.
Mr. A.Y. Sakhare, Senior Advocate with Ms. Chaitalee Deochake i/b Ms.
Komal R. Punjabi, for MCGM, Respondent No. 2 in PIL/40/2019 &
PIL(L)/81/2017 and for Respondent No. 1 & 5 in PIL(L)/51/2017.
Mr. Vishal Kanade i/b Ms. Jaya Bagwe, for MCZMA, Respondent No. 4 in
PIL/9/2019.
Mr. Santosh Daundkar, Petitioner-in-person in PIL/9/2019, present.
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CORAM : ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
Judgment Reserved On : 24 JUNE 2025.
Judgment Pronounced On : 1 JULY 2025.
JUDGMENT (Per : Sandeep V. Marne, J.) :
1) These Petitions, filed in public interest, take exception to the
decision of the State Government in setting up Balasaheb Thackeray
Rashtriya Smarak (the Memorial) at the site of Mayor’s Bungalow located
at Shivaji Park, Dadar, Mumbai. Though all the petitions oppose setting up
of the Memorial at the site of Mayor’s Bungalow, different prayers are
sought in each Petition. Broadly speaking however, the challenge in the
Petitions relate to:-
(i) Government Resolution dated 27 September 2016
granting approval for setting up of Memorial at the site of
Mayor’s Bungalow as well as for establishment of the
Trust to set up and manage the Memorial.
(ii) Amendment to Section 92 of the Mumbai Municipal
Corporation Act, 1888 by inserting clause (dd-1) therein
empowering the Municipal Commissioner to grant lease
of the land to the Trust on nominal rent of Rupee 1 per
annum for 30 years.
(iii) Notice dated 7 September 2017 for change of reservation
of land from Mayor’s Bungalow to the Memorial.
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(iv) Notification dated 22 January 2019 sanctioning the
change of use/zone of the land.
(v) Cabinet decision dated 20 December 2018 granting
exemption for payment of stamp duty for lease of the
land in question in favour of the Trust.
2) The Government of Maharashtra decided to erect a memorial to
commemorate late Balasaheb Thackeray, founder of Shiv Sena Party and a
political leader having substantial influence in the State of Maharashtra,
particularly in Mumbai. Accordingly a High Power Committee (HPC) was
set use vide Government Resolution dated 4 December 2014. The HPC
was given a mandate inter alia to scout for land for setting up the Memorial,
generate funds therefor, make recommendations for setting up of Memorial,
etc. The HPC submitted its recommendations on 19 May 2015 after
considering 8 different sites for setting up of the Memorial. The HPC
recommended that bungalow of Mayor of Mumbai located at Shivaji Park,
Dadar, Mumbai was most suitable for setting up the Memorial. The HPC
also recommended that a public trust registered under the provisions of
Maharashtra Public Trusts Act, 1950 (MPT Act) be set up for carrying out
the work of erection of the Memorial. The HPC recommended that though
the land would continue to be in the ownership of the Municipal
Corporation, the same be allotted on lease to the Trust for a period of 30
years on payment of nominal rent of Rupee 1 per year.
3) This is how the site bearing the land at CTS No.501 as well as
CTS No.1495 together with Mayor’s bungalow standing thereat
admeasuring 11,323 sq.mts. with constructed portion of 1,085.54 sq.mts.
was selected by the HPC for construction of the Memorial. The HPC found
that out of the recommended land, portion admeasuring 362.85 sq.mts. was
granted on lease in favour of Keralia Mahila Samajam. The market value of
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the land was approximately assessed at Rs.205 crores. The HPC observed
that in the Development Control Regulations, 1991 (DCR 1991) the land
was reserved for Mayor’s bungalow and coming under Green Zone. The
HPC also found that in the draft Development Control and Promotion
Regulation, 2034 (DCPR 2034) the land which was not reserved for any
purposes, came under residential and commercial zone. The HPC also
recommended that the land comes under CRZ-II and could be developed
only in accordance with DCR 1991.
4) After considering the recommendations of the HPC, Government
Resolution dated 27 September 2016 was issued granting approval for
setting up of the Memorial at Mayor’s Bungalow and for constitution of
Public Trust with the recommended persons on its Board of Governors
/Trustees. In PIL (L) No.51 of 2017, Government Resolution dated
27 September 2016 has been challenged.
5) Thereafter steps were taken for effecting necessary amendment in
the provisions of Mumbai Municipal Corporation Act, 1888 (MMC Act)
and an Ordinance named Mumbai Municipal Corporation (Amendment)
Ordinance, 2017 was issued vide Notification dated 3 January 2017
inserting Clause (dd-1) in Section 92 of the MMC Act empowering the
Municipal Commissioner to grant lease of the land in question for the
purpose of erection of the Memorial on land less than the market value.
Thereafter the Municipal Corporation (Amendment) Act, 2017 was notified
inserting Clause (dd-1) in Section 92 of the MMC Act. In PIL (L) No. 51 of
2017, the Ordinance dated 3 January 2017 as well as the Amendment Act
are also under challenge.
6) The Municipal Corporation sent a proposal to the State
Government on 17 April 2017 intimating adoption of resolution by the
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Improvement Committee on 13 January 2017 as well as General Body of
the Corporation on 27 February 2017 resolving to allot the Mayor’s
bungalow for setting up of the Memorial and requested for approval of the
State Government. By letter dated 6 July 2017, the State Government
communicated the terms and conditions to the Municipal Corporation for
allotment of Mayor’s bungalow for setting up of the Memorial. One of the
conditions stipulated by the State Government was to carry out
modifications in respect of reservation of the plot as well as to seek
approval of the Heritage Committee and of the Maharashtra Coastal Zone
Management Authority (MCZMA). The Municipal Corporation thereafter
requested the State Government to initiate the process for modification of
the development plan under Section 37(1AA) of the Maharashtra Regional
Town Planning Act, 1966 (MRTP Act). Accordingly, Notice under Section
37(1AA) of the MRTP Act was published in Government Gazette dated
7 September 2017 publishing the proposed change in reservation and
inviting suggestions and objections. It appears that 18 suggestions and
objections were received, which included 15 suggestions in support of the
proposed modification. One of the Petitioners-Mr. Pankaj Rajmachikar also
raised his objection to the proposed modification. After hearing objections
and suggestions, the Deputy Director of Town Planning, Greater Mumbai,
submitted his report to the State Government on 11 December 2017. In the
meantime, the State Government accorded sanction to the draft
Development Plan-2034 of MCGM vide Notification dated 8 May 2018.
The Development Plan 2034 was sanctioned by the State Government in
which the label of Mayor’s bungalow was changed as ‘Balasaheb Thackeray
Rashtriya Smarak’. It appears that Corrigendum dated 29 June 2018 was
issued to effect certain typographical corrections and after completing the
process of inviting suggestions and objections, the modification in the plan
was sanctioned by the State Government on 30 June 2018. Also in the
sanctioned Development Plan 2034 vide Notification dated 22 January 2019
label in respect of the land in question is replaced from Mayor Bungalow to
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Balasaheb Thackeray Smarak together with modifying the land use from
Green Zone to Residential Zone. It appears that after taking the above
steps, the work of setting up of the Memorial was undertaken by Balasaheb
Thackeray Rashtriya Smarak Samiti (the Trust).
7) In the above factual background, the present petitions are filed in
the public interest challenging the decision of the State Government and
MCGM in allotting the land together with the Mayor Bungalow for setting
up the Memorial.
8) We have heard Mr. Sen, the learned senior advocate appearing for
the Petitioner in PIL No.40 of 2019. He would submit that the change of
use of Mayor’s Bungalow has been effected in gross violation of provisions
of the MRTP Act. That the proposed amendment under Notification dated
8 May 2018 and Corrigendum dated 29 June 2018 was only for change of
label whereas final Notification dated 22 January 2019 illegally effected
zoning of the land from ‘Green Zone’ to ‘Residential Zone’ without prior
public notification or consultation. That such conversion was never
proposed either in the draft Development Plan or in published Notifications.
That therefore, direct deletion of ‘Green Zone’ in the final notification dated
22 January 2019 is illegal and contrary to provisions of Section 31(1) of the
MRTP Act. That Notification dated 7 September 2017 issued under Section
37(1AA) of the MRTP Act cannot justify deletion of Green Zone under
DCPR 2034. That the impugned action suffers from procedural impropriety
as there is denial of statutory opportunity of hearing. That though original
Notification dated 8 May 2018 provided for raising of suggestions and
objections, no fresh notice was issued after issuance of Corrigendum dated
29 June 2018. Mr. Sen further submitted that there is illegal conversion of
Municipal Gymkhana (Municipal House) for Mayor’s new bungalow. That
Municipal Gymkhana is a public amenity and historically accessible to
public use and could not be reserved for residence of Mayor. That there is
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excessive reduction in public amenities. That Mayor’s role under the MMC
Act is merely ceremonial and there is no statutory mandate for providing a
bungalow to the Mayor. That in any case alternate land can be scouted for
residence of the Mayor without compromising public amenity space of
Gymkhana. In support of his submissions, Mr. Sen has relied upon
judgment of the Apex Court in Manohar Joshi Versus. State of Maharashtra
and others1 and Municipal Corporation of Greater Mumbai and others Versus.
Hiraman Sitaram Deorukhar and others2.
9) Dr. Warunjikar, the learned counsel appearing for the Petitioner in
PIL (L) No.81 of 2017 would submit that the entire decision-making
process for setting up of the Memorial at Mayor’s Bungalow suffers from
gross arbitrariness and irrationality. Though 8 sites were suggested for
setting up of the Memorial, the site of Mayor’s bungalow was arbitrarily
selected by the HPC on account of intervention of Mr. Subhash Desai, the
then Minister for Industries, who later became lifetime Secretary of the
Trust. That though HPC recommended establishment of public Trust for
setting up and management of the Memorial, the Government Resolution
dated 27 September 2016 ultimately set up the Trust consisting of members
belonging to a Shiv Sena political party and Thackeray family members as
Trustees indicating that it is like a private trust, without any element of
public interest. That almost all the trustees are made trustees for lifetime
again indicating that the Trust is a close family affair. That the provisions of
Section 92 of the MMC Act are arbitrarily amended in a manifest and
illegal manner for the purpose of offering on platter of land admeasuring
hundreds of crores of rupees to the Trust at nominal rent. That the
reservation for Mayor’s bungalow has also been illegally altered for setting
up of the Memorial in gross violation of provisions of the MRTP Act.
1
(2012) 3 SCC 619
2
(2019) 14 SCC 411
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10) Dr. Warunjikar would submit that though the Petitioner is in-
principle not opposing the setting up of the Memorial in the memory of late
Balasaheb Thackeray, site chosen for setting up of the Memorial as well as
the manner in which the Trust is formed is clearly illegal and therefore he
would pray for setting aside of the impugned actions taken by the
Respondents towards setting up of the Memorial at the site of Mayor’s
bungalow.
11) Ms. Chavan, the learned Additional Government Pleader would
oppose the Petitions submitting that establishment of the Memorial at
Mayor’s bungalow is in the realm of policy decision in which this Court
may not interfere. That all the procedure contemplated under the provisions
of the MRTP Act has been followed while effecting the modification in the
Development Plan. That suggestions and objections were invited before
making the modifications in the Development Plan. That Petitioner-
Mr. Pankaj Rajmachikar has objected to the proposed modification but did
not thereafter object issuance of the Corrigendum. That the decision to set
up the Memorial has been taken in interest of larger section of the society
considering the contribution of late Balasaheb Thackeray during his
lifetime. That no exception is made for allotting land for establishment of
the Memorial as several such memorials have been established at various
sites by allotting land by the State Government. That allotment of land for
establishment of the Memorial for public purpose at concessional rate is a
part of policy decision of the State Government and that no departure is
made in the present case. She would accordingly pray for dismissal of the
Petitions.
12) Mr. Khambata, the learned senior advocate appearing for the
Trust would oppose the Petitions submitting that prescribed procedure for
change in designation of the plot has been duly followed and that change of
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designation of the plot does not alter the character of Development Plan
and therefore does not amount to a change in the Development Plan. In
support, he would rely on judgment of the Apex Court in Bombay Dyeing &
Mfg. Co. Ltd. (3) Versus. Bombay Environmental Action Group and Others 3,
judgment of this Court in Mihir Yadunath Thatte Versus. State of Maharashtra
and Ors.4 and Sadanand Varde and Ors. Versus. State of Maharashtra and Ors. 5
He would submit that challenge raised by the Petitioner to amendment of
provisions of Section 92(dd-1) of the MMC Act is clearly baseless as there is
no challenge to the legislative competence of the State Legislature. That in
absence of challenge to the legislative competence, it was necessary for the
Petitioner to establish that amended provision is manifestly arbitrary.
Reliance is placed on judgment of Apex Court in Shayara Bano Versus.
Union of India and others6 and Association for Democratic Reforms and
another (Electoral Bond Scheme) Versus. Union of India and others 7. That
Petitioners have failed to establish any manifest arbitrariness, which would
vitiate the provision of Section 92 (dd-1) of the MMC Act. That setting up
of Memorial for leaders and persons of reverence for their contribution
constitute policy matter and such reversed persons are separate class of
persons. That setting up of Memorial to commemorate such person is a
matter of policy of State and reliance is placed on judgments in Ashok
Maruti Rawoot and others Versus. State of Maharashtra and others 8, Annarao
Baloba Gaikwad Versus. Solapur Municipal Corporation and others 9 and
Kanaiyalal Maneklal Chinai and others Versus. State of Gujarat and others 10.
That policy decision taken by the executive cannot be challenged by the
Petitioner and he would rely on judgments in State of Orissa and others
Versus. Gopinath Dash and others 11 and State of Uttar Pradesh and others
3
(2006) 3 SCC 434
4
2006 SCC OnLine Bom 1152
5
2006 SCC OnLine Bom 1151
6
(2019) 9 SCC 1
7
(2024) 5 SCC 1
8
2013 (3) All. M.R. 192
9
2004 (6) All. M.R. 601
10
(1969) 3 SCC 456
11
(2005) 13 SCC 495
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Versus. Chaudhari Ran Beer Singh and another 12. That in several instances in
the past, lands have been allotted/leased out for construction of the
Memorial and by way of illustration he would cite the illustrations of
Memorial to Swantrya Veer Vinayak Damodar Sawarkar, Vatsalya Trust
and Namdar Jagannath Shankarsheth / Nana Shankar Memorial. Reliance
is also placed on judgment of this Court in Prof. Mohan Prabhakar Bhide
Versus. State of Maharashtra and Others 13 to demonstrate that this Court
rejected the Petition challenging incurring expenditure of Rs.3,600 crores
for consideration of Chhatrapati Shivaji Maharaj Memorial on the ground
of decision being in the realm of policy decision of the State Government.
That the Trust is in control of Shiv Sena party as only three trustees belong
to Shiv Sena party of which two are family members of late Balasaheb
Thackeray. That the Trust is registered as a public Trust and there is nothing
illegal in appointing Trustees for the lifetime to ensure that the Trustees
fulfill their responsibilities towards establishment of the Trust. Lastly, he
would submit that the construction of the Memorial is complete. He would
accordingly pray for dismissal of the Petitions.
13) Mr. Sakhare, the learned senior advocate appearing for MCGM
would justify the decision of the Municipal Corporation in allowing the
land for Mayor’s Bungalow being used for setting up of the Memorial and
the need to provide of Mayor’s residence at the adjoining plot.
14) Mr. Kanade, the learned counsel appearing for MCZMA would
submit that MCZMA has recommended the amended proposal from CRZ
point of view as per CRZ Notification 2011 vide letter dated
29 January 2021.
15) We have also heard Ms. Kantharia, learned Government Pleader
and Mr. More, Additional Government Pleader.
12
(2008) 5 SCC 550
13
2018 SCC OnLine Bom 16564
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16) We have considered the contentions raised by the learned
counsel appearing for rival parties.
17) The Petitioners have essentially challenged the decision of the
State Government in setting up the Memorial at the site of Mayor’s
Bungalow. Apart from challenging the choice made by the State
Government of the site of Mayor’s Bungalow for setting up the Memorial,
the decision to construct residence for the Mayor on the adjoining plot of
land, by modifying the land use is also challenged in one of the PILs. It is
complained that the public amenity of Gymkhana is being compromised
for residence of Mayor, which is nothing but a direct consequence of
handing over the Mayor’s Bungalow for erecting the Memorial.
18) It must be observed at the very outset that both Mr. Sen as
well as Dr. Warunjikar, during the course of their submissions, have fairly
submitted that their clients are not per-se against setting up of a memorial
to commemorate late Balasaheb Thackarey. They do not dispute the need
for setting up of a memorial in Mumbai to acknowledge his contribution
and to honour him. They however dispute selection of the site at which the
Memorial is proposed to be set up. They also challenge the procedure
adopted by the State Government in setting up the Memorial at Mayor’s
Bungalow in shifting of reservation, amendment to the provisions of the
MMC Act, the manner of setting up of the Trust, charge of nominal rent
of Rupee 1 for land valued at hundreds of crores, exemption in payment of
stamp duty etc.
19) So far as the choice made by the State Government, with the
approval of the landowner (MCGM), to set up the Memorial at Mayor’s
Bungalow is concerned, the same would undoubtedly fall in the realm of
policy, in which this Court would be loathe to interfere. Once the
Petitioners do not dispute that a memorial to honour late Balasaheb
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Thackeray deserves to be set up, the choice of site made by the State
Government and MCGM for setting up of the Memorial is something
which would fall outside the scope of judicial review by this Court. 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, unless it is noticed that the decision of the
executive infringes a fundamental right [See State of Orissa Versus. Gopinath
Dash (supra) and State of Uttar Pradesh Versus. Chaudhari Ran Beer Singh
(supra)]. 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 and decision of the executive to set up a memorial to
commemorate such persons, is a matter of policy of the State. In
Kanaiyalal Maneklal Chinai (supra), the Apex Court held that setting up of
a memorial to Mahatma Gandhi at a place associated with him was for a
public purpose. The Apex Court held in para-9 as under :-
9. The High Court was of the view that setting up of a memorial to
Mahatma Gandhi falls within the clause (42) of Section 66 of the
Provincial Municipal Corporations Act, and therefore within the
competence of the Municipal Corporation. Section 66(42) authorises the
Corporation, in its discretion, to provide from time to time either wholly
or partly, in the matters, inter alia, of any measure likely to promote
public safety, health, convenience or instruction, and in the view of the
High Court “setting up a Samadhi or memorial of the type could be fairly
regarded as incidental to the right and power to give public instruction
which is a matter within the competence of the Municipal Corporation
under clause (42) of Section 66“. It is not necessary for us to express any
opinion on this part of the case, for, we are clearly of the view that the
notification under Section 4 of the Land Acquisition Act does not refer to
any purpose of the Ahmedabad Municipal Corporation, nor is the
acquisition for a purpose for which the Commissioner is required by the
provisions of the Provincial Municipal Corporations Act, 1949, to
acquire the land. The land is needed for setting up a memorial to
Mahatma Gandhi at a place associated with him, and we regard, because
of the universal veneration in which the memory of Mahatma Gandhi is
held in our country, that the purpose was a public purpose. Counsel for
the appellants has not attempted to argue that acquisition of land for
setting up a memorial to Mahatma Gandhi at a place which has some
association with him is not a public purpose. He merely argued that
setting up of a memorial to Mahatma Gandhi is not a purpose for which
the Commissioner is required by the Provincial Municipal Corporations
Act, 1949, to acquire the land, nor is it a purpose of the Municipality
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purpose” within the meaning of Section 4 of the Land Acquisition Act, it
is unnecessary to rely upon the extended meaning of the expression
“public purpose” as provided by Section 78(1) of the Provincial
Municipal Corporations Act, 1949.
20) The Division Bench of this Court in Ashok Maruti Rawoot
(supra) held that setting up of a memorial to Dr. Nanasaheb
Dharmadhikari at a place, where he was not born and brought up, was held
to be a matter of discretion of the authority.
21) Again in Annarao Baloba Gaikwad (supra), the Division Bench
of this Court rejected the contention that the act of the State Government
in erecting a memorial does not constitute a public purpose. The Division
Bench held in para-2 as under :-
2. The next contention stated is only for being rejected. The contention is
that land to be acquired for erecting memorial of Dr. Kotnis is not public
purpose. The great deeds of the great Doctor are well known throughout
the country. To say erection of a memorial of such a great man is not a
public, purpose is in fact, in our opinion, an insult to great memories of
the Doctor. Constructing memorials of National Heroes is undoubtedly a
public purpose and this contention also is therefore rejected.
22) Keeping in mind the limitations for this Court in exercising
the power of judicial review in respect of the decision of the State
Government in setting up the Memorial and choosing the particular site
therefor, we now proceed to deal with the objections raised by the
Petitioners about the choice of site of Mayor’s Bungalow made by the State
Government. As observed above, while narrating the facts of the case, the
decision to set up a memorial of late Balasaheb Thackeray was a matter of
well-considered decision making process by the State Government.
Initially, a High Power Committee comprising of Additional Chief
Secretary (GAD), Principal Secretary of Urban Development Department,
Municipal Commissioner, Divisional Commissioner, Police Commissioner
etc. was constituted. Eight sites were examined by the HPC for setting up a
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memorial and after deliberations, the site of Mayor’s Bungalow was
selected by the Committee. The recommendations made by the HPC were
deliberated upon by the State Government and after more than a year, the
State Government finally granted approval for setting up the Memorial at
the site of Mayor’s Bungalow vide Government Resolution dated
27 September 2016. We find that the decision to choose the site of Mayor’s
Bungalow for setting up the Memorial is a well-considered decision, not
warranting interference by this Court in exercise of power of judicial
review. We accordingly repel the objections sought to be raised by the
Petitioners about selection of site of Mayor’s Bungalow for setting up of
the Memorial.
23) The Petitioners have also questioned amendment to the
provisions of Section 92 of the MMC Act. The Act was initially amended
by issuance of Ordinance dated 3 January 2017 and later Mumbai
Municipal Corporation (Amendment) Act, 2017 was enacted thereby
inserting Clause (dd-1) in Section 92 of the MMC Act. The newly inserted
Clause (dd-1) reads thus :-
(dd-1) notwithstanding anything contained in this section, the
Commissioner may, with the sanction of the Corporation and with the
approval of the State Government, grant a lease of immovable property
belonging to the Corporation, namely CTS/FP No. 501, 502 and 1495,
Mahim Division, along with structures situated thereon, for the purpose
of erection of a memorial of late Bala Saheb Thackeray, to the society
namely, the Bala Saheb Thackeray Smarak, a society registered under the
Societies Registration Act, 1860, at a nominal rent of rupee One for the
grant of such lease, and subject to the terms and conditions as may be
decided by the State Government;
24) Thus, clause (dd-1) inserted in Section 92 of the MMC Act
empowered the Municipal Commissioner to grant lease of land on which
Mayor’s Bungalow is located for the purpose of erection of the Memorial
by the Trust at a nominal rent of Rupee 1 after obtaining sanction of the
Corporation and approval of the State Government.
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25) So far as the challenge to Clause (dd-1) of Section 92 of the
MMC Act is concerned, it must be observed that there is no challenge to
the legislative competence of the State Legislature to introduce the said
provision in the MMC Act. Therefore, in absence of challenge to the
legislative competence, the only ground on which Section 92 (dd-1) of the
MMC Act can be challenged, is manifest arbitrariness. In Shayara Bano
(supra) and Association for Democratic Reforms (Electoral Bond Scheme)
(supra) the Apex Court has recognised the principle that a statute can be
challenged on the ground that it is manifestly arbitrary. 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, or something which is excessive or disproportionate.
A provision lacks ‘adequate determining principle’ if the purpose is not in
consonance with constitutional values. A provision can also be held to be
manifestly arbitrary if the provision does not make a classification to
achieve factual equality. However, in the present petitions, Petitioners have
failed to plead, much less establish, any manifest arbitrariness in enacting
Section 92(dd-1) of the MMC Act. In absence of challenge to the
legislative competency of the State Legislature to enact the amended
provision and on account of failure to establish manifest arbitrariness, we
are not inclined to entertain the challenge to the validity of
Section 92 (dd-1) of the MMC Act.
26) The next challenge raised in these set of petitions is to the
change of reservation of the plot of land in question on which Mayor’s
Bungalow is located. Before proceeding to examine the challenge raised by
Petitioners to the alleged modification of development plan thereby
changing the reservation of the land in question, it must be observed that
this Court cannot go into the issue of need or purpose for shifting of
reservation. It is settled position of law that preparation of development
plan and/or effecting amendments or modifications thereto partakes the
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character of legislative function. Reference in this regard can be made to
the Apex Court judgment in Pune Municipal Corporation & Anr. Versus.
Promoters and Builders Association & Anr14. Also, preparation of
development plan and effecting modifications thereto is a process
undertaken in consultation with the planning experts. MRTP Act, which
deals with preparation of development plan for notified area and for
amendments/modifications thereto, prescribes a detailed procedure to be
followed involving consultation at various levels and application of mind
by the planning experts. The process also involves consideration of
suggestions and objections made by the citizens. Therefore, while
determining challenge to the modification of a development plan, the
Court would essentially limit the scope of exercise of power of judicial
review to examine if there is any procedural impropriety in effecting the
change/modification in the development plan. Except in cases where there
is gross violation of planning norms while preparation or
modification/amendment of development plan or where there is a
procedural impropriety, this Court cannot sit as an appellate authority over
the decision made by the planning experts in preparing, and/or amending
the development plan. Also, being a part of legislative function, the
limitations on challenge to a statute would equally apply to the challenge
raised to a development plan.
27) It must also be borne in mind that the law is by now well
settled that mere change in designation of a plot does not alter the
character of Development Plan and therefore does not amount to a change
in the Development Plan. Reliance by Mr. Khambata on judgments in
Bombay Dyeing & Mfg. Co. Ltd. (3), Mihir Yadunath Thatte and Sadanand
Varde (supra) is apposite. Therefore, mere change of label of the structure
from Mayor’s Bungalow to the Memorial would not ipso facto amount to
modification of development plan as such.
14
AIR 2004 SC 3502
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28) Keeping in mind the above broad contours on the power of
judicial review by this Court in entertaining challenge to modification
effected in respect of the Mayor’s Bungalow in the development plan, we
now proceed to examine the challenge raised by the Petitioner to the action
of the Planning Authority (MCGM) in proposing and of the State
Government in sanctioning such modification. After going through the
Affidavit-in-Reply filed on behalf of the State Government in PIL No.40 of
2019, it is seen that the procedure prescribed in MRTP Act has been
followed to the hilt while effecting the modification under challenge.
Ultimately, what is done is to merely change the label of the structure from
‘Mayor’s Bungalow’ to ‘Balasaheb Thackeray Rashtriya Smarak’. While
effecting such change, suggestions and objections were invited. Another
modification effected is to change the zoning of the land from Green Zone
to Residential Zone. It appears that initially Petitioner in PIL No.40/2019
had raised his objections to the Notice dated 7 September 2017 by which it
was proposed to modify the zoning. The objection raised by the Petitioner
was considered and decided by the Planning Committee in accordance
with the provisions of the MRTP Act. The Planning Committee
recommended the proposal for change of zonal use from proposed
garden/park to residential use after noticing that there was increase in the
open spaces in the concerned area in the DCPR 2034 as compared to DCR
1991. It was considered that the provision of residence to the Mayor, a first
citizen of a city, is also a public purpose. Thus, the case involved shifting
of zoning in respect of the concerned land from ‘Municipal Krida Kendra’
to ‘Municipal Housing’ for the purpose of providing residential
accommodation to the Mayor. As observed above, so far as the Mayor’s
Bungalow is concerned, the only change effected in the development plan
is changing of label. Thus, Notification dated 22 January 2019 effects twin
changes (i) changing the label of ‘Mayor’s Bungalow’ into ‘Balasaheb
Thackeray Rashtriya Smarak’ and (ii) deletion of Green Zone and
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substitution by Residential Zone. The above changes are effected after
following due procedure prescribed in the MRTP Act and we are unable to
trace any procedural impropriety in effecting such change.
29) The Petitioners have also questioned the composition of the
Trust for which approval was granted by Government Resolution dated
27 September 2016. By that Government Resolution, approval was granted
by the State Government to set up a Trust comprising of following Board
of Governors/Trustees :-
SR.NO. NAME/DESIGNATION DESIGNATION IN THE
TRUST
1 Mr. Uddhav Thackrey Chairman
2 Mr. Subhash Rajaram Desai Member Secretary
3 Smt. Punam Mahajan Member
4 Mr. Aditya Thackrey Member
5 Mr. Shashikant Shrirang Prabhu Member
6 Chief Secretary, Maharashtra Government Designated Member
7 Secretary (Urban Development Dept) (UD-2) Designated Member
8 Principal Secretary (Law and Justice Division) Designated Member
9 Commissioner, MCGM Designated Member
10 Vacant (to be chosen from the General Member
Members)
11 Vacant (to be chosen from the Life Member) Member
30) The above composition was for establishment of initial board
of Governors/Trustees. The Board of Governors/Trustees comprised of
four ex-officio members holding the post of Chief Secretary, Secretary
(Urban Development Dept), Principal Secretary (Law and Justice) and
Municipal Commissioner (MCGM). Only three out of the 11 members
apparently are members of the Shiv Sena political party and two out of
them are actually family members of Late Balasaheb Thackeray. Since the
Trust is created for setting up the Memorial and looking after it and since
the memorial is to honour late Balasaheb Thackeray, we do not find any
arbitrariness in the decision of the State Government to choose three
members of Shiv Sena political party and two members of family of late
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Balasaheb Thackeray to be the part of Board of Governors/Trustees. After
all, late Balasaheb Thackeray founded Shiv Sena political party and it can
hardly be contended that the decision of the State Government in taking
on board three members of that party, two out of whom are infact family
members of late Balasaheb Thackeray, would amount to arbitrariness. The
objection that the Government Resolution dated 27 September 2016
provides for permanent appointment of most of the trustees also does not
cut any ice. In any case, if any aggrieved party has any objection about
nomination or continuance of any person as trustee of the Trust, there are
adequate remedies under the provisions of the Maharashtra Public Trusts
Act, 1950. We are therefore not inclined to entertain the challenge raised
by the Petitioners to the composition of the Board of Governors/Trustees
of the Trust.
31) The contention sought to be raised on behalf of the
Petitioners about valuable piece of land being offered to the Trust virtually
free of cost for setting up the Memorial also does not appeal to this Court.
The Petitioners themselves do not question the need for setting up of the
Memorial to honour late Balasaheb Thackeray. They also do not question
the fact that such Memorial needs to be set up in Mumbai City where late
Balasaheb Thackeray not only resided but had substantial influence. Any
piece of land in the city of Mumbai is bound to be valuable and therefore it
is not for this Court to decide which land needs to be chosen for setting up
of the Memorial. As observed above, this a policy decision, in which this
Court would be loathe to interfere. The land would continue to be in
ownership of MCGM and merely a lease for a period of 30 years is granted
in favour of the Trust. We are therefore not inclined to interfere in the
impugned decision of the State Government and M.C.G.M. In fact,
allotment of lease of land in favour of the Trust for setting up the
Memorial is in accordance with the provisions of Section 92(dd-1) of the
MMC Act and we have already repelled the challenge to the said provision
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in the preceding paragraphs. We are therefore not inclined to interfere in
the decision of the State Government and the MCGM in allotting the land
in question on which Mayor’s Bungalow is situated for setting up of the
Memorial.
32) Since the MCZMA land at which the Memorial is being set
up comes in CRZ-II, the project is cleared by the MCZMA from
environment point of view. Therefore, there is no violation of environment
norms in setting up the Memorial.
33) This Court also takes notice of the fact that the work of
setting up of the Memorial is virtually complete by now. Mr. Khambata
has taken us through the photographs of the site, which shows that the
grandiose structure of Mayor’s Bungalow has not only been kept intact, but
has been restored. Its heritage significance is not disturbed. Since the work
of setting up of the Memorial is virtually complete by now, this could be
yet another reason for this Court not to interfere in the impugned decisions
and actions.
34) 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. The petitions must fail. They are accordingly dismissed without
any order as to costs.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.07.01
16:32:19
+0530
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