Indian Church Trustees Through ... vs State Of Maharashtra And 3 Ors
2022 Latest Caselaw 12295 Bom

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  vai

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  ORDINARY ORIGINAL CIVIL JURISDICTION

           Digitally signed

VASANT
           by VASANT
           ANANDRAO             REVIEW PETITION (LODGING) NO.59 OF 2019
ANANDRAO
           IDHOL
           Date:
                                                  IN
IDHOL      2022.12.01
           14:58:32
                                     WRIT PETITION NO.2197 OF 1998
           +0530                                 WITH
                                    WRIT PETITION NO.1963 OF 2000


                Prabhu Yeshu Janmotsav,
                A Public Charitable Trust                       ...Petitioner
                      V/s.
                State of Maharashtra & Ors.                     ...Respondents

                                                WITH
                               REVIEW PETITION (LODGING) NO.87 OF 2019
                                                 IN
                                    WRIT PETITION NO.2197 OF 1998

                Indian Church Trustees, through Its Bishop
                Anilkumar M. Lund & Anr.                        ...Petitioners
                      V/s.
                State of Maharashtra & Ors.                     ...Respondents


                Mr.Soli Cooper, Senior Counsel with Mr.Ankur Shah and Mr.Yohan
                Cooper and Mr.Jatin Sheth for the Petitioner. In PRWL No.59 of 2019.

                Mr.Mayur Khandeparkar with Mr.Joshua Abhay Patnigere for the
                Petitioners in RPWL No.87 of 2019.

                Mr.Milind More, Addl. Government Pleader with Mr.Himanshu Takke,
                AGP for the State - Respondent No.1 in both the Review Petitions.


                Mr.Anil Y. Sakhare, Senior counsel with Mr.Yashodeep Deshmukh,
                Ms.Rupali Adhate i/b M/s.Sunil Sonawane for MCGM - Respondent
                No.2 in PRWL No.59 of 2019.

                Mr.Rajan Jaykar with Mr.Vaibhav Bajpai with Ms.Dimple Merchant,

                                                 1/14
                                                         906-rpwl59-19c.doc

Ms.Juni Shah i/b M/s.I.V. Merchant & Co. for the Respondent No.3 in
both the Review Petitions - Monitoring Committee.

Mr.Y.R. Mishra with Ms.Rina Mishra, Mr.Upendra Lokegaonkar for the
Respondent No.4 in both the Review Petitions.

Ms.Indrani Malkani - Representative of the Respondent No.3
Committee present in Court.

Mr.Imran Khan, Junior Engineer "D" Ward - Maintenance Department
- MCGM present in Court.

                     CORAM : R.D. DHANUKA &
                             S.G. DIGE, JJ.

DATE : 29TH NOVEMBER, 2022.

P.C. :-

1. By these review petitions, the review petitioners seek a

modification of the order dated 21st June, 2018 passed by the Division

Bench of this Court and seek a larger area to the extent of 25,000 sq.

mtrs. at Girgaum Chowpatty to organize and celebrate the

Christmas Music Festival as compared to the area designated i.e.

300 x 150 sq. ft. equivalent to 4180.3 sq. mtrs. permitted by an order

dated 21st June, 2018.

2. Before we consider the rival submissions made by all the

parties, we make it clear that at this stage we are not disposing off

these two review petitions filed by the review petitioners seeking a

modification of the order dated 21st June, 2018 but are passing

interim orders and would consider the review petitions at later stage.

3. The review petitioner in Review Petition (Lodging) No.59

of 2019 have been organizing the Christmas Music Festival since

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1965 and is a registered public charitable trust. The review petitioners

in Review Petition (Lodging) No.87 of 2019 are registered trusts, who

have filed this review petition for similar reliefs.

4. The review petitions are filed on various grounds as

summarized in paragraph 4 of the Review Petition (Lodging) No.87 of

2019. It is the case of the review petitioner in Review Petition

(Lodging) No.59 of 2019 that when the said order was passed by this

Court in the writ petition, the petitioner was not heard. Mr.Cooper,

learned senior counsel for the petitioner in Review Petition (Lodging)

No.59 of 2019 submitted that even prior to the date of the said order,

which the petitioners seek a modification, the Collector had granted

permission to hold the same event by permitting a larger area to the

extent of 25,000 sq. mtrs. at Girgaum Chowpatty. He submitted that

even after the passing of the order dated 21st June, 2018 passed by

this Court, the petitioners have been granted permission twice by this

Court in view of the liberty granted by this Court in the said order.

5. Learned senior counsel invited our attention to the orders

passed by this Court on 9th December, 2019 in Writ Petition (Lodging)

No.3443 of 2019 and the order passed by another Division Bench of

this Court on 11th December, 2018 in Writ Petition (Lodging) No.4071

of 2018 filed by the petitioners. He submitted that in both these

orders, this Court has clearly observed while granting permission to

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hold the Christmas Music Festival on the area of 15,000 sq. mtrs.

that there were no complaints made against the petitioners while

holding the event. The petitioners had been maintaining complete

cleanliness during the course of the event as well as thereafter.

6. It is submitted by the learned senior counsel that this

Court in the said order dated 21st June, 2018 had accepted the

guidelines submitted by the respondent no.4 - Committee and

permitted deviation of the said order in future as per the requirement

of the parties holding such event permissible under those guidelines.

7. It is submitted by the learned senior counsel that as on

today, the requirement of the petitioners would be for the area

admeasuring 25,000 sq. mtrs. at Girgaum Chowpatty considering the

expected members of the community at around 25,000. He submitted

that the programme would be only for around five hours on 11th

December, 2022. He submitted that the other programmes permitted

by this Court by accepting the guidelines of the respondent no.4 -

Committee are held for more than a day, whereas in this case the

programme would be only for about 5 hours and thus to

accommodate about 25,000 persons, the requirement of the

petitioners would be for a larger area and to the extent of 25,000 sq.

mtrs. He submits that prior to the date of the said order dated 21 st

June, 2018, 25,000 persons were already permitted by the Municipal

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Corporation and the Collector.

8. Learned senior counsel, on instructions also made a

statement that there is no question of any commercial venture at

Girgaum Chowpatty by the petitioners during the course of the event.

His client would maintain cleanliness and would deploy number of

private security guards. Learned senior counsel also invited our

attention to the alleged violation pointed out by the Municipal

Corporation in the letter dated 27th December, 2019 addressed by the

Municipal Corporation to the Chairman of the review petitioner and

submitted that each of the violations alleged by the Municipal

Corporation are factually incorrect. He explained before this Court

that the alleged violation pointed out by the Municipal Corporation,

even otherwise are petty in nature and cannot be considered as

violation. He further assures this Court that if the permission is

granted by this Court to hold the event on a larger area, the

petitioners would take all the necessary precautions to obviate these

allegations in the future.

9. It is submitted by the learned senior counsel that since

25,000 persons are expected to attend this event, it would not be

possible to accommodate them in the smaller area as permitted by

this Court earlier. He submitted that not only the young members of

public but also senior citizens, women and children would attend the

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event. The petitioners are seeking a larger area to obviate any

stampede on the date of the event. There would be no noise

pollution if the permission is granted by this Court.

10. Mr.Khandeparkar, learned counsel for the review

petitioners in Review Petition (Lodging) No.87 of 2019 invited our

attention to the order dated 21st June, 2018 passed by this Court and

submitted that this Court was conscious of the fact that the said

order may be deviated in the future based on the requirement at the

time of seeking such permission from this Court. He adopted the

submissions made by Mr.Cooper, learned senior counsel in Review

Petition (Lodging) No.59 of 2019.

11. Mr.Sakhare, learned senior counsel for the Municipal

Corporation vehemently urged that this Court while passing the order

dated 21st June, 2018 had accepted the guidelines suggested by the

respondent no.4 - Committee which is comprising of the

Environmentalist and experts. The recommendations made by the

Committee shall be honoured by this Court while considering the

permission sought by the petitioners. He submitted that the

petitioners have no vested right to seek any such permission. He

submitted that both the orders relied upon by the petitioners, which

were passed by this Court while granting permission to hold such

event in the area of 15,000 sq. mtrs. make it clear that those orders

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would not be treated as a precedent.

12. Firstly, learned senior counsel invited our attention to the

communication dated 27th December, 2019 from the Municipal

Corporation to the Chairman of the petitioners pointing out various

alleged breaches committed by the petitioners while holding the event

permitted by this Court on 14th December, 2019. He vehemently

urged that there is nothing to show on record that the foot fall of the

event has been about 25,000 in the past. He relied upon the report

submitted by the Police Inspector of D.N. Marg Police Station dated

27th January, 2020 stating that in the event of 15th December, 2019,

about 7500 to 8,000 persons were present.

13. Mr.Jaykar, learned member of the respondent no.4 -

Committee vehemently urged that the guidelines framed by the

respondent no.4 - Committee has been accepted by this Court. He

invited our attention to the points filed by the Committee as well as

supplementary report and submitted that if the permission as sought

by the review petitioners is granted, a large portion of Girgaum

Chowpatty would be completely blocked by these petitioners which

will be to the extent of about 25,000 sq. mtrs. He adopted the

submissions made by Mr.Sakhare, learned senior counsel for the

Municipal Corporation insofar as the violations pointed out by the

Municipal Corporation alleged to have been committed during the

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event of 2019 by the petitioners. He submitted that various vanity

vans were parked by the petitioners at the beach. Commercial

advertisements of political parties were displayed. He submitted that

though the commercial advertisements were not permitted by this

Court under the guidelines formulated by the Committee, the

petitioners had displayed such commercial advertisements. The

entire area was barricaded by the petitioners as a result of which the

view of Girgaum Chowpatty was restricted.

14. Mr.Khandeparkar, learned counsel for the review

petitioners in his rejoinder arguments submitted that the petitioners

are not seeking relaxation of any other requirement for the purpose of

holding such event for a larger area. He submitted that this Court

was conscious of the fact that in future the permission would be

deviated by the parties for future events at Girgaum Chowpatty for

the designated area as per the requirement of the day. He also

submits that the barricades that were put up by the petitioners were

for better security arrangement. There were entry points put up by the

petitioners so as to make the arrangement for security guards with

metal detectors. He vehemently denied the submission made by

Mr.Jaykar, learned senior member of the Committee that by putting

up three feet barricade, the view of the Girgaum Chowpatty would

be restricted.

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15. By an order dated 21st June, 2018 passed by the Division

Bench of this Court in Writ Petition No.2197 of 1998 filed by Adarsh

Chowpatty Pragati Mandal & Ors. vs. State of Maharashtra &

Another, this Court while accepting the guidelines submitted by the

respondent no.4 - Committee, issued various interim directions. This

Court made it clear that three events which were covered by the

guidelines should be conducted only on the designated area of 300 x

150 sq. ft. as shown in the plan annexed to the first supplementary

report of the Monitoring Committee. This Court held that no deviation

shall be permitted without express permission of this Court. Learned

senior counsel for the respondents thus could not dispute that

deviation can be permitted by this Court on express permission of this

Court, pursuant to the directions issued by this Court in paragraph 23

of the said judgment.

16. We shall now consider the case of the petitioners

whether or not the petitioners have made out a case for grant of such

permission for a larger area. Our attention is invited to the orders

passed by this Court on 11th December, 2018 and 9th December,

2019. The objections which are raised by the respondents in these

review petitions were also raised before this Court when this Court

disposed off the Writ Petition (Lodging) No.4071 of 2018 filed by the

petitioners. Though both the orders make it clear that the permission

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granted by this Court to hold the Christmas Music Festival on the

area of 15,000 sq. mtrs. would not be treated as a precedent, the said

order does not preclude this Court from modifying the order, if case

is made out for such modification in the facts of this review petition

independently. By the said order dated 11th December. 2018, this

Court took cognizance of the undisputed fact that the petitioners are

holding the Christmas Music Festival for more than 50 years at

Girgaum Chowpatty. This Court noticed that the claim of the

petitioners and the intervenors that approximately 25,000 people

assemble for the said festival was also not specifically denied. This

Court also took a note that in this festival, children and elderly people

are also involved. The petitioners were not heard when the interim

directions were passed by this Court.

17. We also take a note that other two festivals i.e. Ram

Leela and Krishna Leela are spread over several days, unlike the

Christmas Music Festival, which is only for a day. We are inclined to

accept the statement made by Mr.Cooper, learned senior counsel for

the petitioners that the event proposed to be organized on 11th

December, 2022 would be an event for about 5-6 hours.

18. This Court by an order passed in Writ Petition (Lodging)

No.3443 of 2019 after considering the similar arguments which are

advanced by the respondents and the petitioners in these review

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petitions, took cognizance of the fact that the Collector of Mumbai

had allowed the Christmas Music Festival to be held on an area of

18,000 sq. mtrs. in 2016 and on an area of 25,000 sq. mtrs. in 2017.

Not a single complaint of nuisance being created in any manner, or

qua breach of security at the festival or any individual being deprived

of access to the Girgaum Chowpatty beach, or of any litter being

created by the individuals attending the said Christmas Music Festival

has been received over these years.

19. We accept the submissions made by the learned senior

counsel for the petitioners that Christmas Music Festival would be

attended by senior citizens as well as children also and the event

would be organized in the designated area that would be permitted by

this Court. In our view, Mr.Cooper, learned senior counsel and

Mr.Khandeparkar, learned counsel for the review petitioners are right

in their submissions that about 25,000 numbers of public from the

community cannot be accommodated in the area permitted by this

Court by an order dated 21st June, 2018, and would create a

possibility of stampede.

20. Insofar as the violations alleged by Mr.Sakhare, learned

senior counsel for the Municipal Corporation in the letter dated 27 th

December, 2019, relied upon by him and Mr.Jaykar, learned member

of the respondent no.4 - Committee are concerned, Mr.Cooper,

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learned senior counsel for the review petitioners explained the

alleged violations to impress this Court that there were no violations

committed. He also denied, on instructions from his client, that there

were any political banners were put up by his clients.

21. Insofar as the parking of vanity vans at the site of

Girgaum Chowpatty is concerned, he submitted that during the

Ganpati festival, the Municipal Corporation permits a large number of

heavy vehicles on the beach for limited hours. He submitted that the

said allegations made in the said letter dated 27th December, 2019

are even otherwise without any basis.

22. We are inclined to accept the submission of Mr.Cooper,

learned senior counsel of the review petitioner that sufficient number

of private security guards would be deployed by the review petitioners

in both the petitions at the time of the event to obviate any law and

order situation. The review petitioners would also maintain complete

cleanliness at the time of the event and even thereafter before

handing over the area allowed to be used for the purpose of this

event by cleaning it at the costs of the petitioners. The barricades that

would be put up by the petitioners at the time of the event would not

obstruct any view.

23. We are inclined to modify the directions at serial no.(i) of

paragraph 23 of the order dated 21st June, 2018 passed by this Court

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in Writ Petition Nos.2197 of 1998 and 1963 of 2000 relate to the

petitioner trust and relax only for this year.

24. The petitioner trust is permitted to hold the Christmas

Music Festival on the area of 15,000 sq. mtrs. It is made clear that

this order is passed only based on the peculiar facts and

circumstances of this case and pending disposal of the review

petitions filed by the review petitioners which would be heard shortly.

This order should not be treated as a precedent. It is made clear that

in future if any such application for relaxation is made, the same

would be considered on the facts of that case and on its own merits.

25. The appropriate authority shall forthwith demarcate the

area of 15,000 sq. mtrs. and show for the Christmas Music Festival

to be held on 11th December, 2022.

26. It is made clear that the permission is granted to the

petitioners subject to the following orders :-

i). The petitioners shall ensure that no commercial

advertisements shall be displaced.

ii). The petitioners shall take all necessary permissions from

the local authorities.

iii). The petitioners shall comply with the various

environmental rules.

iv). The petitioners shall take all the necessary precautions

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by deploying private security guards on the date of the event to

obviate any law and order situation.

v). The other issues raised in the review petitions would be

dealt with at the time of hearing of the review petitions. It is made

clear that all the conditions imposed by the authorities while granting

permission to hold such event shall be scrupulously followed by the

petitioners. It is made clear that the representative of the respondent

no.4 - Committee, representative of the Collector, representative of

the Municipal Corporation and of the concerned police station can

visit the site on the date of event and take photographs.

vi). Parties to act on the authenticated copy of this order.

27. Place both the review petitions on board for hearing and

final disposal on 20th January, 2023.

28. The respondents are permitted to file an affidavit in reply

in both the review petitions within four weeks from today. Rejoinder, if

any, shall be filed on or before 16th January, 2023.

S.G. DIGE, J.)                                  (R.D. DHANUKA, J.)