Bombay High Court
Society For Promotion Of Equality vs Bombay on 22 December, 2011
Bench: R.P. Sondurbaldota
*1* PIL : 71/2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 71 OF 2010
Society for Promotion of Equality,
Awareness and Rights ("SPEAR"),
a Society duly registered under the
Societies Registration Act, 1860,
having its registered office, Sunbeam,
3 Pareja House, Sasmira Marg,
Worli, Mumbai-400 025. .... Petitioner
: V E R S U S :
1. The National Sports Club of India
Having registered office at Mathura Road,
New Delhi and Mumbai Region at
Lala Lajpatrai Marg,
Worli, Mumbai-400 018.
1(a) The Special Administrator of
Sardar Vallabbhai Patel Stadium,
83-A, Central Avenue, Sainik Farm,
New Delhi-110062 and at National
Sports Club of India, situate at Mumbai
2. The Mumbai Municipal Corporation
Having its office at MCGM Building,
Mahapalika Marg, Mumbai-400 001.
3. Chief Engineer, Development Plan,
Municipal Corporation of Greater Mumbai
Mahapalika Road, Mumbai-400 001.
4. The Union of India, represented by
The Secretary, Ministry of Environment
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& Forest, Paryavaran Bhavan, CGO
Complex, Lodhi Road, New Delhi-110 003.
5. State of Maharashtra, represented
by the Secretary, Urban Development
Department, Government of Maharashtra,
Mantralaya, Mumbai
6. Member Secretary,Maharashtra
Coastal Zone Management Authority,
New Administration Bldg, Mantralaya,
Mumbai.
7. The Secretary, Mumbai Heritage
Conservation Committee, Municipal
Corporation of Greater, Mumbai,
Annex Building, Mahapalika Marg,
Mumbai-400 001.
8. Shashi Prabhu & Associates,
Wankhede Stadium, North Stand,
`A' & 'C' Block, D Road,
Churchgate, Mumbai-400 020.
9. The Central Bureau of Investigation,
Having its office at Tanna House,
Nathmal Parekh Marg, Behind
Sahakari Bhandar, Near Regal
Theatre, Colaba, Mumbai. ..... Respondents
Mr. Owen Menenzes with Mr. Ramchandra Yadav i/by. Amey
Tamhane, Advocate for the petitioner.
Mr. E.P. Bharucha, Senior Advocate and Mr. D.D. Madon, Senior
Advocate with Mr. Sarosh Bharucha, Mr. D.J. Kakalia, Mr. Shaun
Fanthome and Ms. Bhavna Singh i/by. M/s. Mulla and Mulla &
C.B. & C , Advocate for respondent no.1.
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*3* PIL : 71/2010
Mr. K.K. Singhvi, Senior Advocate with Ms. Geeta Joglekar,
Advocate for respondent-BMC.
Ms. S.M. Dandekar, Assistant Government Pleader
Advocate for respondent-State.
Ms. S.I. Shah, Advocate for respondents no.4 and 9.
Ms. Sharmila Deshmukh, Advocate for respondent no.6.
CORAM :- MOHIT S. SHAH, C.J. &
ig SMT. R.P. SONDURBALDOTA, J.
JUDGMENT RESERVED ON : 26th August, 2011.
JUDGMENT PRONOUNCED ON: 22nd December, 2011.
JUDGMENT (Per : Smt. R.P. SondurBaldota, J ) :-
1. In this petition purporting to be Public Interest Litigation,
the petitioner NGO has prayed for direction to the Municipal
Corporation of Greater Mumbai (hereinafter referred to as
'Municipal Corporation') and respondent no.8-Shashi Prabhu &
Associates, (hereinafter referred to as 'the Contractor') to demolish
Sardar Vallabhbhai Patel Stadium ('SVP Stadium' for short) situate
at Lala Lajpatrai Marg, Worli, Mumbai and to restore the stadium
to the public as it originally existed. The petitioner has also
prayed for a direction to the Central Bureau of Investigation
*4* PIL : 71/2010
(respondent no.9) to investigate the matter regarding
sanctions/approvals granted by the Municipal Corporation
(respondent no.2) for reconstruction of the SVP Stadium and to
register a case under the Prevention of Corruption Act, 1988
against the officers of respondent no.1-The National Sports Club of
India, officers of respondent no.2 and respondent no.8.
2. SVP Stadium as it existed on city survey No.4147 (plot no.11)
since the year 1943 was a velodrome for cycling enthusiasts.
Respondent no.1-National Sports Club of India, a Club registered
under the Societies Registration Act, 1860 established to co-operate
with the appropriate authorities and organizations interested in
promoting sports to promote outdoor and indoor games and
sports for members and public at large, applied to the Municipal
Corporation for the aforesaid plot of land admeasuring 7113.76 sq.
mts. The Municipal Corporation accepted the proposal of
respondent no.1, NSCI on 27th April, 1950 and granted permission
to erect buildings thereon. Thereafter possession of the land was
given to NSCI on 1st January 1951, on which it constructed various
buildings. The completion certificate in respect of the buildings
constructed was issued by Municipal Corporation on 19th May
*5* PIL : 71/2010
1958. On 11th May, 1993, the Municipal Corporation granted lease
of the aforesaid land to respondent no.1-NSCI by an indenture of
lease (Exhibit-F). The lease deed in it's recital lists 14 buildings
constructed by NSCI on the land including Administrative
building, Club house, Badminton hall, Stadium etc. In the year
1998, NSCI found that the building of the stadium had become
dilapidated. It, therefore proposed it's reconstruction.
3. On 15th September, 2000, the State Government issued
notification enhancing the prescribed FSI for development of land
for gymnasia, gymkhana, clubs, stadium, swimming pool, recreation
ground, playground and ancillary uses to these activities.
(Annexure 'L'). This notification was issued pursuant to the
representation made by several clubs to enhance the FSI from 0.15
and accordingly, the State Government enhanced the FSI to 1.00
but such enhanced FSI was allowed on 50% of the area for the
said amenities. On 24th November, 2000 Mumbai Heritage
Conservation Committee clarified that the SVP Stadium was not
included in the sanctioned list of heritage buildings. On 6th
November, 2001, the Municipal Corporation addressed a letter
(Exhibit-K) to the contractors giving remarks on the development
*6* PIL : 71/2010
plan and indicating that the land is situate in the residential zone
and the development of land will have to be in accordance with
Regulation 31(4)(a) of the Development Control Regulations, 1991,
that clearance from MHCC would be necessary and that remarks
from Assistant Municipal Commissioner (Estates) will have to be
obtained separately before any development. Again on 21st
December, 2001 Municipal Corporation addressed a letter to the
Contractors stating that NSCI property is not a heritage structure
(Exhibit-9B). On 12th February, 2002 respondent no.8 Contractors
addressed a letter (Exhibit-11) to the Executive Engineer, (Building
proposals) of the Municipal Corporation, requesting approval for
reconstruction. The said letter also indicated that application for
reconstruction was also made to the Urban Development
Department of the State Government. By letter dated 29th
November, 2002 (Exhibit-14), the State Government informed the
NSCI that the State Government has no objection to redevelop
the land in question with project cost exceeding Rs.5 crores.
4. On 26th March, 2003 respondent no.1-NSCI submitted draft
plan for approval (Exhibit-N). On 1st April, 2003 the Municipal
Corporation issued IOD (Exhibit-15) in the following terms :
*7* PIL : 71/2010
"1. That the Commencement Certificate under Section
44/69 (1)(a) of the M.R. & T.P. Act will not be
obtained before starting the proposed work.
2. That the compound wall is not constructed on all
sides of the plot clear of the road widening line
with foundation below level of bottom of road side
drain without obstructing the flow of rain water
from the adjoining building to prove possession of
holding starting the work as per D.C. Regulation No.
3((27).
3. That the low lying plot will not be filled upto a
reduced level of atleast 92 T.H.D. or 6" above
adjoining road level whichever is higher with
murum earth, boulders etc. and will not be levelled,
rolled, consolidated and sloped towards road side,
before starting the work.
4. That the Structural Engineer will not be appointed.
Supervision memo as per Appendix XI (Regulation
5(3)(ix) will not be submitted by him.
5. That the structural design and calculation for the
proposed work accounting for seismic analysis as
per relevant I.S. Code and for existing building
showing adequacy thereof to take up additional load
will not be submitted before C.C."
On 10th April, 2003 respondent no.1-NSCI made an application for
development and grant of Commencement Certificate under
Sections 44 and 69 of the MRTP Act, 1966. On 20th June, 2003 the
Municipal Corporation issued Commencement Certificate to
respondent no.1-NSCI. On 4th October, 2003 the Fire Department
*8* PIL : 71/2010
issued NOC for reconstruction (Exhibit-N-3). On 29th November,
2004, the plan was approved for Sardar Vallabhbhai Patel Stadium.
On 13th January, 2009 respondent no.1, NSCI submitted the
amended plans. On 1st April, 2009 Municipal Corporation
approved the amended plans subject to certain conditions set out
therein. On 4th April, 2009 the Municipal Corporation granted No
Objection and occupation permission for sports hall building
(ground floor) (Exhibit-18). On 1st February, 2010 the Municipal
Corporation addressed a letter to respondent no.1, NSCI granting
no-objection and occupation permission for sports hall building
(ground + 2 upper floors) (Exhibit-19). On 18th June, 2010 the
petitioner filed the present PIL.
5. Before setting out the contentions raised by the petitioner,
we must know that respondent no.1, NSCI has raised a
preliminary objection about gross delay in challenging the IOD
granted by the Municipal Corporation as far back as in 2003. It
is submitted that apart from the fact that no explanation is given
for such a gross delay of 7 years, the construction of the Stadium
and the ancillary use is complete on the ground floor and two
upper floors and that occupation certificate is also granted by the
*9* PIL : 71/2010
Municipal Corporation. It is submitted that respondent no.1 has
already started using a portion of the club. The relevant
averments as paragraph (2) of the affidavit in reply of respondent
no.1, NSCI read thus :-
"2(a).....The actual physical work of reconstruction of the
stadium commenced in January 2004. Work has been
going on at the site of the stadium for the last 7 years.
The work is now 90% complete. The civil work has
been completed and only internal work remains. The
reconstructed stadium stands on the site. The only work
which remains and which is being carried on at present
is internal work. The stadium stands facing the Arabian
Sea on the landward side of the Dr. Annie Besant Road.
Thousands of cars travel on this road and pass by the
Stadium on a daily basis. It is a very prominent location
and the stadium cannot be missed as one passes by.
Despite all of the above, the petitioner has filed this
petition after 7 years of daily large scale construction
work going on at the site, after the work of
reconstruction is 90% complete. There is not a sentence
in the petition even attempting to explain the gross
delay on the part of the petitioner in filing this petition.
The only feeble attempt made to explain the delay is in
paragraph-14 of the petition where the petitioner makes
a bald statement that there was no undue delay or lapse
on its part in filing this petition as it only recently came
to know about the alleged serious illegal activities
committed by respondent nos.1 and 2. No explanation is
provided as to why the petition was not filed many
years ago when the reconstruction work was being
openly carried out at the site for the last 7 years. No
explanation is provided as to how the petitioner came
to know about the alleged illegalities in the
reconstruction of the stadium. All of a sudden, after 7
years, the petitioner has approached this Hon'ble Court
* 10 * PIL : 71/2010
seeking final reliefs in the nature of demolishing the
fully reconstructed stadium and interim/ad-interim reliefs
in the nature of staying any further progress towards
completion of the project......"
6. Having regard to the aforesaid, we are of the view that
there is definitely gross delay on the part of the petitioner in
filing this petition purporting to be PIL. The only explanation
offered by the petitioner is that on 4th February, 2010 they read in
the newspapers about the litigation filed by some of the members
of the club against respondent no.1 club and thereafter they made
enquiries and that they came to learn about the illegalities in not
obtaining the permission from respondent no.6-Maharashtra
Coastal Zone Management Authority. This explanation can hardly
be said to be satisfactory. Besides, the litigation referred to in the
the alleged news report itself was four years old and the interim
order passed therein was three years old.
7. Mr. E.P. Bharucha, the learned Senior Counsel appearing for
respondent no.1, submits that, the delay of seven years in the
petitioner filing this PIL must be treated as fatal since during the
period of delay, respondent no.1 has altered its position by
completing the construction upto 90% at investment of huge
* 11 * PIL : 71/2010
amount. Respondent no.1 also engaged several persons for the
work of construction thereby creating interests of the third parties.
He submits that although delay may not be the sole ground for
dismissing of Public Interest Litigation, but, the facts and
circumstances of the present case makes it just and equitable that
the petition is dismissed. Mr. Bharucha seeks support in his
submission from the decision of the Apex Court reported in
Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay
Environmental Action Group & Ors., reported in AIR 2006 S.C.
Page 1489. The observations relied upon by Mr. Bharucha, from
the decision read as follows :
342. Delay and laches on the part of the writ
petitioners indisputably has a role to play in the matter
of grant of reliefs in a writ petition. This Court in a
large number of decisions has categorically laid down
that where by reason of delay and/ or laches on the
part of the writ petitioners, the parties altered their
positions and/or third parties interests have been
created, public interest litigations may be summarily
dismissed. Delay although may not be the sole ground
for dismissing a public interest litigation in some cases
and, thus, each case must be considered having regard
to the facts and circumstances obtaining therein, the
underlying equitable principles cannot be ignored. As
regards applicability of the said principles, public
interest litigations are no exceptions. We have
heretobefore noticed the scope and object of public
interest litigation. Delay of such a nature in some cases
* 12 * PIL : 71/2010
is considered to be of vital importance. (See Chairman
& MD, BPL Ltd., vs. S.P. Gururaja and others, (2003) 8
SCC 567).
343. In Narmada Bachao Andolan v. Union of India
[(2000) 10 SCC 664), this Court held:
"..... Any delay in the execution of the
project means overrun in costs and the decision
to undertake a project, if challenged after its
execution has commenced should be thrown out
at the very threshold on the ground of laches if
the petitioner had the knowledge of such a
decision and could have approached the Court at
that time. Just because a petition is termed as a
PIL does not mean that ordinary principles,
applicable to litigation will not apply. Latches is
one of them."
8. We find much force in the argument of Mr. Bharucha. We
notice that there is no rejoinder to the facts stated by respondent
no.1- NSCI that the work of construction of stadium had
commenced in the year 2004 and it went on for 7 years. The
location of the stadium being a very prominent one, it could not
have been missed by anyone travelling by Dr. Annie Besant Road.
In the circumstances, the claim of the petitioner that it's members
learnt about it from a newspaper report in February 2010 is
difficult to believe. The petition is thus liable to be dismissed on
this ground alone. Nonetheless in deference to the extensive
arguments advanced on merits of the disputes raised in the
* 13 * PIL : 71/2010
petition, we propose to consider the petition on merits also.
9. On merits, the petitioner contends that the land in question
was in non-development zone and therefore the Municipal
Corporation could not have granted any building permission for
FSI of 1.00. The permission granted by respondent no.4 was for
repairs/reconstruction of the authorised building and permission
was granted for existing FSI norms and without change in
existing use. However, the open to sky stadium which was
accessible to public at large is demolished and respondent no.1
NSCI has constructed and developed the closed stadium and
basement by giving total disregard to the Environment Protection
Act, 1986, CRZ Notification, MRTP Act and Development Control
Regulations. It is submitted that closed stadium cannot be used
by the public at large as it was used earlier and thus, the public
at large has been deprived of a recreation ground which was
available to it since the year 1943. In the old stadium, people
could play outdoor games such as hockey, football and cricket and
conduct athletics. Now, the open ground has been reduced to a
substantially smaller area and it could not be made playable for
outdoor games of football, hockey, cricket and athletics as the
* 14 * PIL : 71/2010
minimum areas required for these sports cannot be made for the
present stadium. The central arena is 75 mts. diameter and that
too concrete, on which outdoor games cannot be played. The
petitioner alleges that the concrete arena is infact made for the
purpose of holding film award shows and entertainment shows.
10. The petitioner contends that construction of basement by
respondent no.1, NSCI is violative of Clause-5 of the lease deed as
also CRZ regulations. It is next submitted that the plot under
reference is reserved in the revised development plan for
recreation ground but still the proposal was submitted by showing
the plot to be under residential zone to avail the FSI of
residential zone.
11. The petitioner alleges that respondent no.1, NSCI has
constructed the stadium and the club house for commercialization
of stadium though no commercial activity can be allowed in CRZ
II (Green Zone) as per notification dated 19th February, 1991 and
the lease deed. Reliance is placed on the Architect's report to
show that substantial portion of the stadium will be used for
commercial activities.
12. The first objection of the petitioner relates to violation of
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FSI rules. This objection is two-fold. First objection is about the
index of floor space applicable to the land and the second is
about the calculation of the area available for construction based
upon the FSI applicable to the land. The petitioner alleges that
the area statement submitted along with the plans for
construction is incorrect.
13. The petitioner contends that though as per the Coastal
Zone Management Plan, 0.15 FSI is permitted under the CRZ
notification of 1991, respondent no.1 has utilized one FSI claiming
benefit of notification dated 15th September, 2000. Paragraph 3(3)
of CRZ notification of 1991 relied upon by the petitioner, reads
as under :
"FSI upto 15% shall be allowed in respect of parks,
playgrounds, regional parks and other open spaces
falling in CRZ-II. Use of such vacant places shall be
restricted to construction of civil amenities, stadium,
gymnasium etc. meant for recreational/related activities.
Residential/commercial use of such open space shall
not be permissible."
According to the petitioner, Mumbai Municipal Corporation by its
letter dated 4th February, 2002 had in fact rejected the proposal of
respondent no.1, NSCI claiming benefit under the notification on
the ground that the same is not applicable to the case since the
* 16 * PIL : 71/2010
plot of land in question falls in CRZ area. However, admittedly
after the proposal of respondent no.1, NSCI was rejected by the
Municipal Corporation, the Architect for respondent no.1 NSCI had
applied to the Urban Development Department of Government of
Maharashtra for "No-Objection Certificate" from the point of
view of Coastal Regulation Zone/CRZ, for reconstruction of the
property of SVP Stadium. The Urban Development Department
by the letter dated 29th November, 2002 addressed to the Architect
of respondent no.1, NSCI granted `No -Objection' in the
following terms :
" As per the proposal of sanctioned Development
Plan of G/S ward of Brihanmumbai Municipal
Corporation this plot earmark for existing Sardar
Vallabbhai Patel Stadium and partly reserved for Bus
bay and partly reserved for proposed D.P. Road. As per
the Coastal Zone Management Plan (CZMP) approved
by MOEF, Govt of India on 19/1/2009, the land under
reference falls in CRZ-II Category.
. As per the MOEF's Notification dated 19th
February, 1991 in CRZ-II area reconstruction of
authorised bldg. is permitted subject to existing FSI
norms and without change in the existing use.
. Accordingly, I am directed to inform you that
the Govt. has no objection to redevelop the land under
reference with project cost exceeding Rs.5 crores, from
CRZ point of view, subject to condition that
development on the land shall be as per the MOEF
* 17 * PIL : 71/2010
Notification dated 19/2/1991 and subsequent
modification therein & Development Control Regulations
prevailing as on 19/2/1991."
In the circumstance, there can be no substance in the complaint
of the petitioner, of illegal use of FSI i.e. FSI higher than that
available over the land.
14. This brings us to the grievance of the petitioner about
calculation of the total area available for construction on the land.
The petitioner at paragraph 4.15 of the petition, refers to two
proformas, proforma-A and proforma-B. Mr. Menenzes, the learned
counsel for the petitioner, submits that the method or procedure
adopted by the Architect of respondent no.1, NSCI for calculation
of the total area available for construction under the two
proformas is incorrect, it is not the procedure prescribed by law.
He further submits that where a statute prescribes a certain
procedure for something, the same must be adhered to and there
can be no deviation therefrom. In this connection, he relies upon
two decisions of the Apex Court in Haresh Dayaram Thakur V/s.
State of Maharashtra and Others reported in (2000) 6 SCC page
179 and Kuwar Pal Singh by lrs. V/s. State of U.P. and Others
reported in (2007) 5 SCC page 85. In the decisions cited, the
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Apex Court holds that where any statutory provision provides a
particular manner for doing a particular act, then that thing or
act must be done in accordance with the manner prescribed
therefor in the Act.
15. The calculation mentioned in the petition as proforma-A is
as follows : The entire plot of land of SVP Stadium, admeasures
77,005.81 sq.mts out of which, a portion admeasuring 6757.22
sq.mts is covered by hutments. After deducting this area, the land
in possession of respondent no.1 would be 70,248.59 sq.mts. After
further deductions for, D.P. Road, Bus-bay area and setback area
the total land left in the hands of respondent no.1 would be
60,765.89 sq.mts. On this land, respondents no.1 and 8 showed
existing built up area as of 34,643.75 sq.mts., by combining the
area of the SVP Stadium of 33719.10 sq.mts and that of
administrative building of 924.65 sq.mts. Respondent no.1, NSCI
proposed to pull down the existing construction of 34643.75 sq.
mtrs. for erection of enclosed stadium and a warm-up building
together admeasuring 26433.904 sq. mtrs. Mr. Menenzes, argues
that, the SVP Stadium being open to sky, respondent no.1,NSCI
could not have claimed the area covered by the Stadium.
* 19 * PIL : 71/2010
Therefore, the present construction, according to him, is way
beyond the construction legally permissible on the land.
16. The calculation mentioned in proforma-B is about the net
area permissible for ancillary uses, which is 15% of the area of
the plot of land. With the area of 70,248.59 sq. mtrs. of the plot of
land, the net area permissible for ancillary uses would be 10537.29
sq. mtrs. Since respondent no.1, NSCI is already using 10330.68 sq.
mtrs. as the built up area, the balance that becomes available to
them would be 206.61 sq. mtrs.. Adding to this, the area of 924.65
sq. mtrs. of the demolished administrative building, an area of
1131.26 sq. mtrs. was shown available for ancillary use. According
to the petitioner, this calculation was incorrect. Respondent no.1,
NSCI could not have taken into account ground floor of the
ancillary structure for the purpose of calculation as the same was
already covered in the total plot area of 70248.59 sq.mts. What
was available for them was only the area of first and second
floor of the building, that is two-third of 924.65 sq.mts. Out of
this, respondent no.1 proposed canteen of 1,116.80 sq.mts thereby
leaving balance of only 14.46 sq.mts for ancillary use.
17. Respondent no.1, NSCI as well as, the building
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construction regulating authorities i.e. respondents no.2, 3 and 5
dispute that the earlier Stadium being open to sky cannot be a
Building. There is nothing indicated by the petitioner from any
of the building constructions rules and regulations to indicate that
SVP Stadium cannot be said to be a Building. As regards the
area available for ancillary uses, respondent no.1, NSCI denies that
the ancillary structure was situate on or was part of the plot
admeasuring 70,248.59 sq. mtrs. It denies that the ground floor of
the ancillary building already having been taken into account in
the total plot size of 70248.59 sq. mtrs. ought to have been
deducted from the area covered by the ancillary building. It
denies only 2/3rd of the area of ancillary building i.e. 2/3rd of
924.65 sq. mtrs. should have been considered for calculations. We
have carefully gone through the record and the documents
produced before us and are satisfied that the proposal for
reconstruction sent out by respondent no.1 was routinely
considered by all the relevant authorities. There is nothing to
even suggest that the proposal was hurriedly considered or that
the proposal was approved for any extraneous reasons. Therefore,
we find no merit in the grievance aired.
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18. The second violation alleged on part of respondent no.1 is
construction of basement in CRZ-II area. The petitioner contends
that there is an express provision in the Indenture of lease dated
11th May, 1993 against excavation. The same reads as follows :
"5. Not to make any excavation upon any part of the
land hereby demised nor remove any stone ravel clay
earth or other material therefrom."
It is contended that there is an express prohibition against
excavation and no provision is made for permission for extraction
upon ground in the said Indenture. Though there is no provision
at all to make a basement in the CRZ area, still the Municipal
Corporation has permitted and respondent no.1 has constructed
the basement. It is further contended on behalf of the petitioner
that the extraction of ground water is also banned in the CRZ
areas for making basement. It is permitted only for construction
of hotel in the CRZ-III areas alone. It is not permitted in CRZ-II
or CRZ-I areas. For extraction of water in CRZ-III areas,
permission of ground water authorities is required to be taken.
19. The lease-deed dated 11th May, 1993 permits respondent no1,
NSCI to undertake construction activities on the said plot.
Respondent no.1, NSCI contends that no construction activities
* 22 * PIL : 71/2010
can be carried out without some excavation of the land. Further
in view of the requisite sanction from respondent no.2 Municipal
Corporation in this regard, the question of violation of Clause-5 of
the lease-deed does not arise. It is the case of Respondent no.1,
NSCI that there was no extraction of ground water in the present
case and therefore there was no question of violation of the CRZ
Notification or obtaining any permission of the ground water
authorities. We see that there is nothing on record to indicate
that there was any extraction of water at the time of its
excavation of land for construction authorities. For the purpose
of construction of a building some excavation at the site is
inevitable. It has been rightly submitted by Mr. E.P. Bharucha, on
behalf of respondent no.1, NSCI that the purport of Clause-5 of
the lease-deed is completely missed by the petitioner. What is
sought to be prevented by the clause is pure and simple
excavation of soil and simplicitor transfer of the soil to another
place. In our opinion, the interpretation sought to be given by
the petitioner upon Clause-5 of the lease-deed regarding ban on
excavation is not correct. It's interpretation does not go hand in
hand with the permission for construction granted to respondent
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no.1.
20. The third violation alleged is about the commercial
activities planned in the newly constructed stadium. The petitioner
contends that the the Coastal Zone Management Plan for
Maharashtra does not permit any residential or commercial use of
open space. Respondent no.1-NSCI in its affidavit-in-reply at
para-28 states that, it is yet to finally determine the precise user
or layout of the newly constructed area. It makes a statement
that any user will be in strict accordance with the terms of the
lease deed and subject to the conditions therein. In it's affidavit
in rejoinder, the petitioner alleges that part of the ground floor
has been given on 3 years lease to MOCHA/Coffee Shop which
denotes commercial use of the premises. Mr. Bharucha states that
the Coffee shop is now closed for general public and is open only
for members of respondent no.1, NSCI. We are inclined to accept
the statements made on behalf of respondent No.1, NSIC, on both
the past user as well as the future user of the premises.
21. The petitioner next contends that the Notification dated 19th
Feb 1991 does not permit any construction activity in CRZ-II
area. It permits only reconstruction of the authorised building
* 24 * PIL : 71/2010
and such reconstruction is subject to existing FSI norms. The
reconstruction is also permitted subject to condition that there
will be no change in the existing use. The petitioner alleges that
the construction in the present case is a completely new
construction and not reconstruction of the existing structure. It is
pointed out on behalf of the petitioner that the SVP Stadium was
open to sky and what is constructed now is a close-door Stadium.
There is no doubt that earlier Stadium was open to sky.
However, the term `reconstruction of the building' is not expected
to mean construction of replica of the earlier structure. As long
as the structure constructed is for Stadium for sports, its
reconstruction in another form cannot be complained of.
22. Lastly, it is submitted that respondent no.1 could not have
changed the existing use of SVP Stadium. Mr. Menenzes, submits
that the existing use of SVP Stadium was as under :-
"An Olympic Oval (Stadium) suitable for national and
international context, athletics, cycling, hockey, football,
wrestling and other games as may be approved by the
Corporation from time to time."
The Stadium was also to be open for use of the school children,
registered sports organizations etc. on the non-event days.
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Further, the Indenture required that the Stadium should be made
available atleast on 15 Special events in a year for
activities/events to be conducted by the Municipal Corporation or
any other organization on the direction of the Municipal
Commissioner. The lease provided for the rates to be charged for
the events which are as under :
(i) Sports activities arranged/conducted by Bombay
Municipal Corporation shall be free of charge.
(ii) Sports activities arranged by the organization/bodies
other than Bombay Municipal Corporation shall be
charged regular charges of the club.
(iii) The use of the Olympic Oval (Stadium) by the
public or other Clubs on non-event days shall be
regulated by the National Sports Club of India in
accordance with rules to be framed by the Club and
approved by the Municipal Commissioner.
The petitioner alleges that in the present case, respondent no.1
has not only constructed closed stadium but also reduced the size
of the stadium. Consequently the playground has literally vanished
and in its place small size cement concrete closed ground has
come into existence. Therefore, no children or public at large can
play any game in the newly constructed stadium. As such the
* 26 * PIL : 71/2010
public at large has lost its recreation ground, as well as, Stadium.
Mr. Menenzes, wants this Court to apply `public trust doctrine to
the facts of the present case for issuance of demolition of the
construction made by respondent no.1. He refers to the decision
of the Apex Court in the case of Fomento Resorts And Hotels
Limited and another V/s. Minguel Martins and Others. reported
in (2009) 3 Supreme Court Cases 571 and in particular para-65
which reads as under :
65. We reiterate that natural resources including
forests, water bodies, rivers, seashores, etc. are
held by the State as a trustee on behalf of the
people and especially the future generations.
These constitute common properties and people
are entitled to uninterrupted use thereof. The
State cannot transfer public trust properties to a
private party, if such a transfer interferes with the
right of the public and the Court can invoke the
public trust doctrine and take affirmative action
for protecting the right of people to have access
to light, air and water and also for protecting
rivers, sea, tanks, trees, forests and associated
natural ecosystems.
23. Respondent no.1 contends that SVP Stadium has never been
a public recreation ground. It was never open for use to the
general public in the sense that anybody could simply walk into
the stadium and use the facilities for sports. It was always meant
* 27 * PIL : 71/2010
for its members and it's use by non-members is regulated by the
the use as mentioned herein above. Therefore, there is no
question of the general public being deprived from any
recreational ground.
24. In order to appreciate the concern for general public shown
by the petitioner and the reply of respondent no.1, NSCI thereto,
reference must be made to the terms of the lease deed dtd. 11th
May 1993. As already mentioned earlier, the recital to the lease
deed lists various constructions in existence on the plot of land
since the year 1958. The list includes Stadium, Swimming Pool,
Badminton hall, Tennis Court, Club House, Administrative building
etc. The lease deed does not contain an absolute bar against
erection of new building or pulling down of the existing building.
These activities can be undertaken with previous consent in
writing of the Commissioner or City Engineer for the purpose as
provided by Clause 3. The use of the building on the land is
prescribed by Clause 19, which reads as under :
"19. To use the buildings for the time being on the
demised land only for:-
i) An Olympic Oval (Stadium) suitable for
National and International context athletics,
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cycling, hocky, football, wrestling and other
games as may be approved by the Corporation
from time to time; AND
ii) A Club House with residential rooms,
garages, servants quarters, swimmng pool,
badminton and tennis courts, recreation, squash
courts, Billiards, Table Tennis and any other
permitted sports and club activities.
AND not to use the said premises or any part thereof
or permit the same to be used for any business, trade,
occupation or purposes whatsoever other than as
aforesaid without the consent in writing of the
Commissioner and not at any time to permit stables
factories or shops on the demised land in particular
not to use the demised premises of any part thereof
for sale, or consumption of opium, ganja, bhang or
other intoxicating drugs be country or foreign and
whether the sale be by retail or wholesale AND not
to do or suffer to be done on the said premises
anything which may be or become nuisance injuries
or offensive to the Corporation or the Owners or
occupiers of this or any other property in the
neighbourhood. The club shall be permitted to run
liquor bar at such plans approved by Municipal
Commissioner for the some of members of club
exclusively and the club will have to pay Bombay
Municipal Corporation scheduled charges in this
regard.
The next relevant clause would be Clause 12, which reads as
under:
'12. That the Club House shall be for that use of the members
of the National Sports Club of India only but the Olympic
Oval (Stadium) be open for the use of School children,
interred Sports organisation, etc. on non-event days AND
whereas Stadium should be made available at least on
* 29 * PIL : 71/2010
fifteen special events in an year for activities/events to be
conducted by the Bombay Municipal Corporation or any
other organisation on the protection of Municipal
Commissioner, the Club shall charge the rate for time
events as below :
i) Sports activities arranged/conducted by Bombay Municipal
Corporation shall be free of charge
ii) Sports activities arranged by the organisation/bodies other
than Bombay Municipal Corporation shall be charged
regular charges of the club.
iii) The use of the Olympic Oval (Stadium) by the Public or
other clubs on even days shall be regulated by the National
Sports Club of India, in accordance with rules to be framed
by the Club and approved by the Municipal Commissioner.
Clause 15 of the deed permits use of the Stadium for purposes
other than sports activities subject to prior permission of the
Municipal Commissioner. Clause 2A of the deed mandates
respondent no.1, NSCI to layout and maintain a garden
admeasuring 2216.62 sq. yards at North and lawn near Stadium of
the benefit of the public. Further the open space having width of
150 feet along Lala Lajpatrai Marg was required to be developed
as a garden for the use of public. However, this space can be
used for car parking by the members for club functions. The
space can also be used for conducting marriages and social
functions of the members themselves and the members of their
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family on payment of charges.
25. Thus perusal of the lease deed is sufficient to show that
the Stadium was meant for use by members of respondent no.1,
NSCI with further specified use permitted by others. The entry of
the general public is limited to the gardens maintained by
respondent no.1, NSCI. There can also be social events conducted
in the premises subject to the conditions set out in the
leasedeed. As regards the use of the Stadium by schools,
respondent no.1 has placed on record the relevant extracts from
the minutes of the meeting of the Regional Committee of
respondent no.1 held on 30th August 2011 regarding the charges
for the use of the swimming pool, stadium and its sporting
facilities. As per the said resolution, respondent no. 1 will not
charge any amount for the activities arranged or conducted by
the Municipal Corporation of Greater Mumbai or for the sports
activities. It is further stated that respondent no.1 will also not
charge any amount from the Municipal Corporation schools for
the use of swimming pool though the same are not part of the
stadium or the school catering to children with special needs,
requiring the use of the swimming pool. As regards the other
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schools which do not fall under the above categories, respondent
no.1 will charge Rs.6,000/- per day plus taxes for the use of the
swimming pool.
26. The above facts show that the use of the Stadium by
respondent no.1, NSCI is not contrary to the terms of the lease
deed. As regards the sports activities of Hockey, Football, Wrestling
and cycling etc. are concerned none of the associations concerning
these sports have aired any grievance. Besides respondent no.1
NSCI as the Sports Club in expected to be alive to the different
sports activities gaining popularity from time to time and mould
it's activities within the bounds of the lease deed. It is not
expected to shut it's eyes to different newer sports coming up
and becoming popular. But at the same time, it must be said
here by way of a note of caution that respondent no.1, NSCI
while conducting it's various activities must never lose sight of
it's objects which are the purpose of its existence and promote
outdoor and indoor games, sports for its members and public at
large.
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27. For all the above reasons, we dismiss the petition. Parties
shall bear their own costs.
[Smt. R.P. SondurBaldota, J] [Chief Justice]
