IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION (PIL) NO.103 OF 2006
1. Smt.Meera Sadanand Kamath &
anr. .. .. Petitioners
1. Municipal Corporation of Gr.
Bombay & ors. .. .. Respondents
Mr.Rakesh Kumar i/by Legal Vision for petitioners.
Mr.K.K.Singhvi, Senior Advocate with Ms.S.
Ajitkumar for BMC.
Mr.Nitin Pradhan with Mr.Amarendra Mishra for
respondent Nos.4, 5, 6 & 8.
Respondents Nos.9 to 11 are served.
CORAM : H.L. GOKHALE, ACTING C.J. &
V.M. KANADE, J.
DATED : 15th February 2007
1. Heard the learned Counsel for the parties.
2. The petitioners are citizens staying in Borivli (West). They
have filed this Petition making a grievance with respect to the
alleged illegal and unauthorised construction on a plot of land
bearing final plot No.128 TPS III admeasuring 25,395.06 square meters
in Borivli (West) which is reserved for public garden. The grievance
is that the Municipal Corporation has permitted one Poinsur Gymkhana,
whose Secretary is joined as respondent No.4 in this Petition, to
develop the said area and that the play ground is not being used
for the purpose for which it ought to have
3. Reliance is placed on a Circular dated 8th May 2002 issued by
the Municipal Corporation wherein certain proactive policy has been
laid down by the Municipal Corporation for the development and maintenance
of gardens, recreation grounds, play grounds through the sponsors
on adoption basis. The said circular is sought to be
challenged as bad in law and it is contended that in such manner
the plot cannot be given to such agencies. Alternatively, it is
submitted that, in any case, there is a breach of the conditions
laid down therein.
4. As far as the submission that the aforesaid circular is bad
in law, we do not find
any merit in this submission for the simple reason that it is a
matter of policy for the Municipal Corporation. Under the said circular,
limited rights are given to the agencies which are going to develop
them. The kind of adoption which is permitted for the purpose of
development is to continue for five years under Clause 6 and it
is to be extended for another five years. It is a performance of
the agency which is to be seen for
the purpose of continuation. Restrictions are placed on the charges
that such agencies will level and under Clause 9 the maximum fee
chargeable is Rs.2/- per person in case of normal gardens and Rs.5/-
in case of gardens wherein extensive development has taken place
involving not less than Rs.1 Crore. Preamble of the said circular
itself states that the policy has been framed on the request of
the Municipal Councillors and it is essentially because the Municipal
Corporation wants to have a participation of various such agencies.
It is an attempt to share the expenditure involved.
5. When the Petition came up earlier, an order was passed by a
Division Bench that the
facility over there will be available only on payment of Rs.5/-.
6. Mr.Pradhan, learned Counsel appearing for the contesting respondents,
points out that only Rs.2/- are charged for entry. Undoubtedly,
if such facilities like go-carting, boating, food court, entrance
plaza, etc. are resorted to, then additional charges are required
to be paid. He further points out that the charges are also as per
the letter / circular dated 13th September 2006 issued by the Municipal
Corporation. The plot concerned is a huge plot of about 25,000 sq.
meters. Earlier there was a pond in this plot which is developed
into a lake. This being so, if in that lake this facility of boating
is provided by charging fees as per the said Municipal letter /
circular, we do not find anything erroneous in it. As far as visitors
are concerned, charges are only Rs.5/- per head which are for persons
of above 12 years and one day of the week the garden is to be kept
free for every body.
7. A grievance is made that such facilities like go-carting, lake,
food plaza, ought not to
have been provided. This is a matter of perception and in a huge
plot where there are a
large number of visitors, if such facilities are provided, one cannot
have a grievance so long as cleanliness is maintained.
8. A grievance is also made with respect to the contribution collected
to the tune of about
Rs.16,000/- from some persons who became members of the Poinsur
Gymkhana which has undertaken this project. There are no special
rights available to any of the members of the Gymkhana in this entire
garden which is now known as Veer Savarkar Udyan
and this is a Municipal garden maintained by the Gymkhana. We do
not find that there is any departure from the requirements of the
Municipal Corporation as expected under its circulars issued from
time to time. There is no reason to maintain this Petition. Petition
9. We make it clear that in the event this Poinsur Gymkhana wants
to start boating or
go-carting activity, the Gymkhana is free to start it at the rates
fixed by the Municipal
10. Petition is dismissed for the reasons stated above.
(V.M. KANADE, J.)