Smt. Meera Sadanand Kamath & Anr. … Petitioners
V/s
Municipal Corporation of Greater Bombay & Ors. … Respondents

I, Meera Sadanand Kamath, the Petitioner No. 1 abovenamed residing at Flat No. 2 Ruchi Co-operative Housing Society Limited, Chikoo Wadi Road, Shimpoli, Borivli (West), do hereby state on solemn affirmation as under :-

1. I say that I have received the copy of the reply filed by the Secretary of the Respondent No. 5 Mr. Shashi Nair and in rejoinder to the same I have to state as under :-

2. At the outset I repeat, reiterate and confirm all the statements and averments made by the Petitioners in the Petition. I say that at the further outset I deny all the statements and averments made in the said reply unless and until the same are specifically admitted by the Petitioners.

3. With reference to paragraph 2 of the said reply I deny that all the allegations or contentions raised in the Petition which have been set forth are due to lack of knowledge and information regarding the plot of land as alleged. I deny that the said plot has been handed over to Respondent No. 5 on adoption basis for maintenance and development as per due procedure of law and in accordance with the circulars and guidelines of Bombay Municipal Corporation as alleged.

4. With reference to paragraph 3 of the said reply I deny that the present Petition is private Interest Litigation in as much no substantial cause or infringement of rights of public at large is raised as alleged. I say that the Petition as filed is Public Interest Litigation and there are various issues raised in the Petition relating to Public Interest. I say that being a Member of the Nationalist Congress Party does not take away the status of the Petitioner No. 1 as Social Activist I say that petitioner No.1 became member of N.C.P in the Month of November 2005 and she has filed P.I.Ls. before that and has raised public issues successfully. Similarly only because the Petitioner No. 1 has contested and lost Municipal Election held in the year 2002 against the Respondent No. 6 does not deprive the Petitioner No. 1 of status as Social Activist. I say that the Petitioner No. 1 is known for her social activities. I say that the election to which reference is made in paragraph No. 3 Respondent No. 6 was not only person contesting the said election, on the contrary there were various candidates and the Petitioner No. 1 was also one of them and she has contested the said election independently and in her capacity as Social Activist in that area. I say that by making reference to the said election the Respondents Nos. 4, 5, 6 and 8 are making an attempt to divert the attention of this Hon'ble Court from the illegalities which has been committed by them in developing the subject plot reserved for garden.

5. With reference to paragraph 4 of the said reply I say that though the Respondent No. 5 is a registered Trust for charitable purposes none of the activities of the Respondent No. 5 are of charitable nature on the contrary with the involvement of Respondent No. 6,the Respondent No6 is doing all the activities except those which are mentioned in the Trust Deed. I say that the activities which are being carried out by the Respondent No. 5 with the involvement of Respondent No. 6 and others are not in accordance with objects as mentioned in the Trust Deed and therefore the activities of the Respondent No. 5 are illegal and beyond the objects of the Trust.

6. With reference to paragraph 5 of the said reply I say that the alleged Notice has not been issued by the Municipal Corporation in consonance with the said Circular dated 8.5.2002. I crave leave to refer to and rely upon the said Circular dated 8th May, 2002.

7. I say that from the balance sheet as submitted along with the reply it is very much clear that the Respondent No. 5 is not at all involved in Social or Cultural activities, on the contrary Respondent No. 5 is being run with commercial objectives and in order to earn profits. I say that from the said balance sheet it is very much clear that maximum amount has been collected from the Pubic as Membership Fees by the Respondent No. 5 which has been invested in securities and FDRs. I say that though in the statement of particulars at page 200 it is mentioned that the income of the previous year applied to charitable and religious purposes is Rs. 1,33,94,789/- (Rupees One Crore, Thirty Three Lakhs Ninety Four Thousand and Seven Hundred and Eighty Nine) plus Rs. 20,38,166/- (Rupees Twenty Lakhs Thirty Eight Thousand One Hundred and Sixty Six only), no details of the said amounts are set out either in the balance sheet or otherwise as to for which Charitable object the said amount has been spent. I say that on the face of it the said balance sheet appears to be manipulated. I say that though from the balance sheet itself it is clear that the Respondent No. 5 Trust is not at all acting in accordance with its aims and objects no action has been taken by the Respondent No. 9 against the Respondent No. 5 and its Trustees for the mismanagement of the funds of the Trust, for breach of the Trust.
8. With reference to paragraph 6 of the said reply I deny that the Respondent No. 5 made an application dated 11.6.2005 for adoption and maintenance of the said plot. I say that the said application and the said Notice were only formalities and the Respondent No. 6 has declared much prior to the said Notice and the said application that he is going to develop the said plot which clearly shows that the Officers of the Municipal Corporation have acted absolutely at the instructions of Respondent No. 6 in his capacity as Ex-Deputy Mayor and as sitting MLA and that shows involvement of the Officers of the Municipal Corporation in the illegalities being carried out on the said plot by Respondent No. 5 at the instance of the Respondent No. 6 and the other Trustees of the Respondent no. 5. I say that the balance sheet for the year 2003-2004 on the face of it is manipulated balance sheet and does not disclose the true and correct facts of the Respondent No. 5.

9. With reference to paragraph 7 of the said reply I say that the alleged institutions have allegedly applied before the Office of the Superintendent of Gardens are run by the Respondent No. 6. with direct or indirect involvement which has been specifically mentioned by the Petitioners in the Petition. I say that issuance of the said Notice and thereafter making up of the Application was all stage managed only in order to facilitate the handing over of the said plot to the Respondent No. 5 which is being run by the Respondent No. 6 as is clear from the Trust Deed itself that the Respondent No. 6 is the Settler as well as the Trustee of Respondent No. 5 Trust and surprisingly the Respondent No. 6 is the Managing Trustee for life time of the Respondent No. 5 Trust. I deny that all the Applications were scrutinized, had the said application being scrutinized the Corporation would have come to know that the said Applications were fake applications. I say that from the Trust Deed of the Respondent No. 5 it is very much clear that it is not the object of the Respondent NO. 5 to develop and maintain the garden and similarly it is not the object of the Respondent No. 5 as per the Trust Deed to erect Statues of patriots or otherwise. I say that the Municipal Corporation has knowingly overlooked the said facts and the Respondent No. 5 by carrying out the alleged activities or acting against the aims and objects of the Trust Deed and the Municipal Corporation ought not to have allotted the said plot to the Respondent No. 5. I say that even the said letter at Exhibit III dated 30.8.2005 clearly mentions that the said plot is allotted for development and maintenance on adoption as per the Circular dated 8.5.2002. I say that the relevant condition in the circular dated 8.5.2002 have been violated by the Respondent no. 5 while developing the said plot reserved for garden as it is specifically mentioned in the Petition. I say that the said allotment itself violates the provisions in the Circular dated 8.5.2002 and other circulars which are annexed to the Petition. I say that from the conditions in the said allotment letter it is clear that the permission is granted to Respondent No. 5 to do construction work against the relevant regulations, acts and circulars.

10. With reference to paragraph 8 of the reply I say that from the conduct of the Municipal Corporation in allotment of the said plot of land to the Respondent No. 5 it is very much clear that Municipal Corporation has acted at the instruction of the Respondent No. 6 and/or officers of the Municipal Corporation have acted in collusion with the Trustees of the Respondent No. 5 and therefore though the total amount which has been spent by the Municipal Corporation on the said plot is Rs. 32,86,481/- (Rupees Thirty Two Lakhs Eighty Six Thousand Four Hundred and Eighty one) as per the information supplied by the Municipal Corporation itself, the Municipal Corporation has asked the Respondent No. 5 to reimburse only Rs. 20,75,900/- (Rupees Twenty Lakhs Seventy Five Thousand Nine Hundred only).

11. With reference to paragraph 9 of the said reply I deny that the said plot was waste land and used for dumping waste or garbage. I say that on the admission of the Respondents themselves there was natural pond on the said plot. I deny that the said pond was unclean and dirty. I say that the said pond was duly maintained by the residents of the said locality and was used for Ganpati immersion and for other religious rituals. I say that for the purpose of commercial exploitation of the said plot of land, the Respondent No. 5 has removed all the natural plants from the said plot of land and has reduced the dimensions of the said natural pond which is absolutely illegal and against the provisions of law to protect environment. I deny that the Respondent No. 5 has prepared an Architectural plan for the alleged beautification and make over of the said plot of land in accordance with the Development Control Rules and M.R.T.P. Act. I say that Respondent No. 5 has not at all developed the said plot of land as garden, on the contrary the Respondent No. 5 has developed the said plot of land as amusement park with the facilities which are not at all permitted in a plot of land reserved for garden which is specifically mentioned in the Petition. I deny that the Respondent No. 5 has submitted the development plan for the make over of the natural pond. I say that the dimensions of the natural pond has been substantially reduced and it has been converted into a boating lake and for the said facilities the Respondent No. 5 is charging huge amounts from the Public and is commercially exploiting the said plot. I say that from the Exhibit VI-A annexed to the said reply it is very much clear that Respondent No. 5 by using influence and pressure of Respondent No. 6 has got the said plot allotted and has developed the same with an intention to exploit the same commercially. It is surprising that portion of the said plot which was reserved for CNG is sought to be shifted by the Respondent No. 5 and virtually the said CNG reservation has been shifted from the said plot at the instance of Respondents Nos. 5 and 6 by the Municipal Corporation. I say that in the said letter it is also mentioned that that RCC details has been submitted by the Respondent No. 5. I say that surprisingly to the knowledge of the Municipal Corporation there are huge entrance gates constructed on the said plot of land by the Respondent No. 5 and there are toilet blocks, amphitheatre etc. Constructed on the said plot of land. I say that as per the Rules and Regulations and Circulars no such construction can at all be allowed on the plot reserved for garden. I say that from the documents submitted at Exhibit VI-A it is very much clear that the Respondents No. 5 has put up various R.C.C. Constructions on the said plot of land and the said illegal constructions has been approved by the Municipal Corporation violating the Rules and Regulations and the provisions for Development of the plot reserved for garden. I say that the said documents and plans submitted by the Respondent No. 5 blatantly mention that the development of the said Plot as MLA Mr. Gopal Shetty's dream project. The description of the development of the said plot as project of the said MLA clearly discloses that the said MLA has developed the said plot as his Dream Project and to exploit the said plot commercially. I say that it is very much surprising to note that in order to get the sanction and approvals giving a go by to the prescribed procedures the applications and plans are submitted in the name of the MLA Mr. Gopal Shetty the Respondent No. 6 and not in the name of the Trust. I say that from the Plan at page 234 it is clear that the major portion of the said plot has been used for construction of toilets for Ladies and Gents which is not at all required in any plot reserved for garden. I say that surprisingly the Municipal Corporation has approved all the said plans without any objections at all.

12. With reference to paragraph 10 of the said reply I say that the plans have been approved by the Municipal Corporation under the influence of Respondent No. 6 and in collusion with the officers of the Municipal Corporation in violation of the Rules and Regulations for the development of the said plot reserved for garden. I say that on their own description given in paragraph 10 of the reply it is clear that the Respondent No. 5 has not developed the said plot of land as garden but has developed it as amusement park with various facilities which are not at all permissible in a plot reserved for garden.

13. With reference to paragraph 11 of the said reply I say that the Petition raises many other questions also which are specifically mentioned in the said Petition apart from the objections and allegations as mentioned in paragraph 11 of the reply.

14. With reference to paragraph 12(a) of the said reply I deny that the entire plot has been developed and maintained as per the Rules and Regulations and the provisions for development and maintenance of the plot reserved for garden. I say that the lay out plan (Project) of the Respondent No. 6 has been approved violating the Rules and Regulations, Circulars and provisions for Development of the plot reserved for Garden. I say that there are contradictory statements made in the reply itself. I say that in paragraph 12(a), the Respondents are stating that there is no construction of R.C.C. carried out on the said plot, on the other hand from the documents which are annexed to the said reply it is clear that there are R.C.C. constructions approved by the Municipal Corporation and carried out by the Respondent No. 5. I deny that the amenities provided on the said plot of land are in the form of allotting a small portion of the area for that activity in open space. I say that from the lay out plan itself it is clear that more than 3/4th of the said plot of land is used for development and construction on the said plot which is not permissible in a plot reserved for garden. I say that as per the provisions and Rules and Regulations the Respondent No. 5 ought to have done Plantation on the said open space which is much more required for the residents of the said locality to get fresh air for breathing and for healthy living of the residents and the children of the locality. I say that on their own showing in the said paragraph out of the area of 25,395.06 square meters about 18,990 square meters is utilized for purposes other than garden. I deny that about 18,990 square meters is utilized for themes such as children play area, Nana Nani Park, Boating Lake, Plantation, Jungle theme etc. which is covered by beautiful plantation and gardening work etc. I say that from the perusal of the approved lay out plan itself more than 3/4th area of the said plot is constructed for the purpose other than garden which is not at all permissible under the law. I say that from the very photographs which are annexed to the reply it is obvious that there is no Plantation at all on the said plot of land. I say that on the contrary even the existing huge plants have been cut and removed by the Respondent No. 5 while carrying out the development on the said plot of land. I say that even the photographs which are annexed to the reply have been taken conveniently by the Respondent No. 5 in order to misguide the Hon'ble Court and the same do not give a clear picture of the construction carried out on the said plot of land by the Respondent No. 5.

15. With reference to paragraph 12(b) of the said reply I say that the facilities as mentioned in paragraph 12(b) of the said reply have been approved and sanctioned illegally by the Municipal Corporation under the influence of MLA Mr. Gopal Shetty who is also a sitting Corporator and who has been Ex Deputy Mayor of the Municipal Corporation. I say that the officers of the Municipal Corporation are acting in collusion with the Respondent No. 6 and therefore have sanctioned the said facilities though the same are illegal and cannot be constructed on the plot reserved for garden. I say that therefore the Petition seeks action against the Officers of the Municipal Corporation who are responsible for approving and sanctioning the said facilities on the plot reserved for garden.

16. With reference to paragraph 12© of the said reply I deny that the previous circular dated 8.1.2001 making it binding for the Corporation to invite applications from registered Organization by publishing in 3 recognized local newspapers is not applicable to the present case. I deny that the subsequent Circulars dated 8.5.2002 has superceded the previous Circular dated 8.1.2001. I say that the subsequent circular is in addition to the previous Circular, the same has not superceded the previous Circular at all. I deny that there was any poor response to the Circular dated 8.1.2001. I say that the officers of the Municipal Corporation in order to facilitate the development of the plots reserved for public purpose by the Politicians who have good approach with the Municipal Corporation have framed the subsequent circular which is illegal and contrary to the Public Policy.

17. With reference to paragraph 12(d-i) of the said reply I deny that the Membership fee and entrance fee is collected by the Respondents No. 5 as per the terms of the Trust Deed. I say that the Membership and Entry Fee which is collected does not at all mention that the same is collected from the residents for the purpose of becoming active members and for the Trust activities. I say that on the contrary the membership fee is collected from the residents for the purpose of utilizing the facilities on the said plot of land. I say that the Respondent No. 5 is not at all entitled to collect membership fee from the residents for the purpose of utilizing the facilities on the plot developed by them which are allotted to them by the Municipal Corporation on care taker basis. I say that the members are not at all informed that the Membership Fee is being collected for becoming a member of the Trust. I say that on the contrary the Membership Forms and receipts clearly mention that the Membership Fee is collected for availing of the facilities on the reserved plot.

18. With reference to paragraph 12(d-ii) of the said reply I deny that the Respondent No. 5 has incurred expenses more than Rs. one Crore in development and beautification of the said plot. I say that the Respondent No. 5 on the contrary has used the amount collected from the Public itself for the development of the said plot and as such Respondent No. 5 is not entitled to charge any amount from the Public for utilizing the facilities on the said plot. I say that on the admission of the Respondents themselves they are charging the entry fees even from the children and none of the boards on the said plot of land mentions that the children below 12 years will be given free entry.

19. With reference to paragraph 12(e) of the reply I say that the Respondents Nos. 5 and 6 are misusing the name of the Hon'ble Freedom Fighter Shri Vinayak Damodar Savarkar and by using the name of the Hon'ble Freedom Fighter the Respondents Nos. 5 and 6 are collecting money from the public in his name. I deny that idea behind the said endeavor was to pay tribute to the Hon'ble Freedom Fighter and to propagate his ideals of patriotism and nationalism in the public at large and especially among children. I say that at no stretch of imagination it can be said that by using amphitheatre, T.V. Room, Boating Lake, Food Court and dashing car facilities the children are going to learn the ideals of the Hon'ble Freedom Fighter. I say that on the contrary the Respondents Nos. 5 and 6 are spoiling the name of the Hon'ble Freedom Fighter by collecting money in his name and misusing the same for their personal benefit and for their commercial benefit. I say that surprisingly the people who have contributed for construction of the said Statute are also not allowed to enter the said plot without paying various charges as prescribed by Respondent No. 5 and as mentioned in the Petition. I say that the alleged voluntary organization i.e. Jan Seva Kendra is an organization run by Jan Seva Sahakari Bank Limited and Respondent No. 6 and the said organization is not at all interested in the installation of the Statute of the Hon'ble Patriot, by sponsoring the installation of the said statute the said organization has paid tribute to Respondents Nos. 5 and 6 who have made maximum investment of the amount collected from the general public in the form of FDRs and securities with the Jan Seva Sahakari Bank Limited which is obvious from the balance sheet submitted by Respondents Nos. 5 and 6. I say that as per the Rules and Regulations only the organization to whom plot is allotted is entitled to develop the plot and no other organization can collect donations and/or carry out any development on the plots allotted on adoption basis. I say that on the admission of Respondents themselves Jan Seva Kendra has collected donations from the Public for the alleged purpose of erecting statutes of the Hon'ble Freedom Fighter I say that as a genuine organization the Respondent No. 5 ought to have given the account to the general public who has donated money as to how much money was collected in the name of the Hon'ble Patriot and how much money is used for the construction of the statute. I say that on their own showing the Respondent Nos. 5 and 8 have collected the amount to the tune of more than Rs. 26,00,000/- (Rupees Twenty Six Lakhs only), as per the information colleted by the Petitioners from the well known Architect, for such a Statute as is placed on the said plot of land of the Hon'ble Patriot, the maximum amount spent can not at all be more than Rs,. 9,00,000/- (Rupees Nine Lakhs only), I say that therefore it is clear that the Respondent No. 5, 6 and 8 have collected huge amount from the General Public in the name of the Hon'ble Patriot and has spoiled the name and ideals of the Hon'ble Patriot. I deny that the permission to construct the statute of the Hon'ble Patriot can be granted in a plot reserved for garden and that too in the manner in which it is constructed on the said plot.

20. With reference to paragraph 13 of the reply I deny that the entire plot has been developed in accordance with the provisions of Development Control rules and circulars and guidelines of the Respondent No. 1. I deny that all the themes/activities are in the open space area with no structure constructed for the same. I say that from the layout plan itself submitted by Respondent No. 5 and approved by the municipal corporation it is clear that construction has been done on the said plot in order to provide various facilities which is absolutely illegal. I say that as per the circulars of the municipal corporation itself no structure can be constructed on a plot reserved for garden except Mali's chowky admeasuring 10x20 sq. ft. I say that admittedly the constructions as mentioned in paragraph 13 are carried out illegally. I say that municipal architect cannot give any certificate for the illegal constructions carried out on the said plot. I say that the issuance of the said certificates by the municipal architect itself shows that municipal officers are acting in collusion with Respondent No. 5 and 6 and in violation of circulars and provisions of law have issued the said certificates to the Respondent No. 5.

21. With reference to paragraph 14 of the reply I say that the boating facility cannot be provided in a plot reserved for garden. I say that all the permissions as mentioned in paragraph 14 are granted to Respondent No 5. illegally and in violation of the provisions of law and circulars.

22 With reference to paragraph 15 of the reply I say that petitioners have already submitted sufficient proofs to show that the said plot is being exploited commercially by Respondent No 5 and 6. and in order to satisfy the political needs and commercial requirements of Respondent No 6. I deny that the said plot of land was ever a waste land. I say that there was a natural pond and natural garden existing on the said plot of land which has been destroyed and removed by Respondent No 5. I deny that the major portion of the said plot of land is covered by the natural pond which is around 6000 sq. mts. and plantation which is around 7000 sq. mts. as falsely alleged. I deny that the amenities or themes sanctioned on the said plot of land is around 4000 sq. mts. which is an open space area surrounded by plantation as falsely alleged. I say that the major portion of the said plot is developed by the Respondent No. 5 and 6 for various facilities for which the construction has been carried out and the Respondent No 5 has prescribed membership fees and charges for the use of the said facilities. I say that on the admission of the Respondent themselves food stall/ food court is constructed on the said plot of land reserved for garden which is absolutely illegal.

23. With reference to paragraph 16 of the reply I say that the circular which has been overlooked and the provisions of law which has been violated by the Respondents have been specifically mentioned in the petition. I say that in the entire reply Respondent No 4, 5, 6 and 8 have suppressed the material facts from this Hon'ble court that they are charging various fees for use of the facilities by the citizens on the said plot and that they have offered life membership and other memberships for use of the facilities on the said plot by charging huge amounts from the citizens. I say that the said allegations in the petition are not at all denied by the Respondents in the reply filed by them. I deny that entry in the garden is kept free for one day in a week as falsely alleged. I say that the Respondent No. 4 to 8 cannot charge any fees from the citizens which amounts to commercial exploitation of the said plot. I say the watchmen on the ticket counter charges fees even from the children below 12 years of age.

24 I say that the petitioners have themselves visited the said plot at 10.30 pm in the night and found that the said plot is open for use of the people who have paid the charges and/or who have opted for membership. I say that to the greatest surprise of the petitioners the said plot is being used by the youngsters of the nearby school and colleges that is Saint Anne's High school and MK School and MK College for immoral activities by paying certain amount to the watchmen kept by Respondent No 5 on the said plot. I say that the youngsters are misusing the said plot for the purpose of immoral activities, as due to the high rise boundaries constructed around the said plot by Respondent No.5 nothing is visible from the outside. I say that on the plots reserved for garden or playground such high rise boundaries are not permissible and the boundaries are constructed by 1 ft. to 2 fts. RCC construction and by putting iron railings on the same so that everything inside the plot is visible from outside and no one can use it for immoral activities and at the same time looking from outside itself it becomes apparent that the plot is developed as garden/ playground and the general public can use the same. I say that due to the said high rise boundary the said plot looks more like a private property of the Respondent No 5 and 6 rather than a public garden. I say that therefore it is just proper and in public interest that the Respondent No. 1 may be directed immediately to demolish the high rise boundary leaving a maximum of 2 ft. height and Respondent No 1 be further directed to fix iron railings upon the same as is done in case of other gardens hereto Annexed marked EXHIBIT- 1 or the photographs of the public gardens at Gateway of India maintained by Mahendra and the garden at Churni Road maintained by Godrej. I say that though as per the rules and regulations the plot reserved for the garden cannot be used for any purpose other than the garden but the Respondent No 5 and 6 are commercially exploiting the said plot by giving it for functions and programs and for their publicity. Hereto annexed marked EXHIBIT-2 is the copy of the photograph of the function held on 7th October 2006 in which Respondent No 6 is mentioned as Guest of honor. I say that Respondent No 5 has carved out a portion of the said plot with a separate gate in order to commercially exploit the same by giving the same for the purpose of functions and programs.
25. I say that the alleged resolution VIII-'A', Exhibit VIII-'B' are absolutely illegal and the same are against the provisions dealing with public trust, no permission is obtained from charity commissioner for collecting the said amounts I say that the alleged resolutions themselves disclose that Respondent No 5 and 6 are set to commercially exploit the plot which is subject matter of the petition as well as other plots which are allotted to them for maintenance on adoption basis by the municipal corporation.
26. I say that in the facts and the circumstances mentioned hereinabove it is just proper necessary and in the public interest that the reliefs as prayed in the petition may be granted by this Hon'ble court.

Solemnly affirmed at Bombay )

On this 11th day of October 2006.)

Before Me

Advocate for the Petitioners

HIGH COURT

O. O. C. J.

WRIT PETITION (PIL) No. 103 OF 2006

Smt. Meera S. Kamath & Anr. .. Petitioners

V/s

Municipal Corporation of Greater Bombay &
Ors. …Respondents

AFFIDAVIT IN REJOINDER OF MEERA S.
KAMATH THE PETITIONER No. 1

DATED THIS 11th DAY OF OCT. 2006

M/s. Legal Vision,
Advocates for the Petitioners
3/31 Sharda Building,
Topiwala Lane, Dr. D.B. Marg,
Mumbai - 400 007

Meera Kamath
Email - meera.s.kamath@gmail.com