Bombay High Court
Zoru Bhathena vs The State Of Maharashtra Through The ... on 25 January, 2024
Author: Gs Patel
Bench: G.S.Patel
Satyen Kapadia vs The State of Maharashtra & Ors
904-oswpl-1857-2024++J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1857 OF 2024
Satyen Kapadia,
Age: 54 years, Occupation: Business off
Mumbai, Indian Inhabitant, residing at, 37
Usha Kiran, 15 Carmichael Road,
Mumbai 400 026. ...Petitioner
~ versus ~
1. The State of Maharashtra,
through the Government Pleader,
Original Side, High Court, Bombay
2. The Chief Minister,
Government of
Maharashtra,
6th Floor, Mantralaya,
Mumbai 400 032.
3. Municipal Corporation of
Greater Mumbai (MCGM),
Municipal Building, Head Office,
Mahanagar Palika Marg, Fort,
Mumbai 400 001.
4. The Municipal
Commissioner Greater
Mumbai,
Municipal Corporation of Greater
Mumbai, Mahapalika Marg,
Mumbai 400 001.
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5. Royal Western India Turf
Club Ltd,
a company incorporated under the
Indian Companies Act, 1913, with its
office at Mahalakshmi Racecourse,
Mumbai 400 034. ...Respondents
WITH
WRIT PETITION (L) NO. 2168 OF 2024
Zoru Bhathena,
Age: 48 years
Occupation: Business,
Indian Inhabitant residing at T-149
Meherabad, Azad Road, Juhu Koliwada,
Mumbai 400 049. ...Petitioner
~ versus ~
1. The State of Maharashtra,
through the Government Pleader,
Original Side, High Court, Bombay
2. The Chief Minister,
Government of
Maharashtra,
6th Floor, Mantralaya,
Mumbai 400 032.
3. Municipal Corporation of
Greater Mumbai (MCGM),
Municipal Building, Head Office,
Mahanagar Palika Marg, Fort,
Mumbai 400 001.
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4. The Municipal
Commissioner Greater
Mumbai,
Municipal Corporation of Greater
Mumbai, Mahapalika marg,
Mumbai 400 001.
5. Royal Western India Turf
Club Ltd,
a company incorporated under the
Indian Companies Act, 1913, with its
office at Mahalakshmi Racecourse,
Mumbai 400 034. ...Respondents
WITH
WRIT PETITION (L) NO. 2400 OF 2024
1. Dinshaw Rusi Mehta,
Rusi Mehta Building,
3rd Floor, 49A Bhulabhai Desai Road,
Mumbai 400 026.
2. Hormuz D Mehta,
Spenta, 5th Floor, Malabar Hill,
Mumbai 400 006.
3. Darayus D Mehta,
Mohammedbhoy Mansion,
Kemps Corner, Hughes Road,
Mumbai 400 007. ...Petitioners
~ versus ~
1. The State of Maharashtra,
through the Government Pleader,
Original Side, High Court, Bombay
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2. The Chief Minister,
Government of
Maharashtra,
6th Floor, Mantralaya,
Mumbai 400 032.
3. Municipal Corporation of
Greater Mumbai (MCGM),
Municipal Building, Head Office,
Mahanagar Palika Marg, Fort,
Mumbai 400 001.
4. The Municipal
Commissioner Greater
Mumbai,
Municipal Corporation of Greater
Mumbai, Mahapalika marg,
Mumbai 400 001.
5. Royal Western India Turf
Club Ltd,
a company incorporated under the
Indian Companies Act, 1913, with its
office at Mahalakshmi Racecourse,
Mumbai 400 034. ...Respondents
A PPEARANCES
for the petitioner Mr Janak Dwarkadas, Senior
in wpl/1857/2024 & Advocate, with Navroz
wok/2168/2024 Seervai, Senior Advocate,
Dinyar Madon, Senior
Advocate, Shyam Mehta,
Senior Advocate, Sharan
Jagtiani, Senior Advocate,
Kunal Dwarkadas, Rishika
Harish, Aditya Bapat, Suraj
Iyer & Gauri Joshi, i/b Ganesh
& Co.
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for the petitioner Mr Ravi Kadam, Senior Advocate,
in wpl/2400/2024 with Zal Andhyarujina,
Senior Advocate, Cyrus
Ardeshir & Ziyad Madon, i/b
Zain AK Najam-Es-Sani.
for respondent- Dr Birendra Saraf, Advocate
state in all matters General, with PH Kantharia,
GP, Jyoti Chavan, Addl. GP &
Jay Sanklecha.
for respondent - Mr Harish Salve, Senior Advocate,
MCGM in with Chirag Shah, Utsav
wpl/2400/2024 Trivedi, Joel Carlos & Rupali
Adhate, i/b Sunil Sonawane.
for respondent - Mr Mukul Rohatgi, Senior
MCGM in Advocate, with Anil Singh,
wpl/1857/2024 Senior Advocate, Ranjit
Thorat, Senior Advocate,
with Chirag Shah, Utsav
Trivedi, Devanshi Popat, Muthu
Thangathurai, Joel Carlos &
Rupali Adhate, i/b Sunil
Sonawane.
for respondent - Mr Mukul Rohatgi, Senior
MCGM in Advocate, with Chirag Shah,
wpl/2168/2024 Utsav Trivedi, Devanshi Popat,
Muthu Thangathurai, Joel
Carlos & Rupali Adhate, i/b
Sunil Sonawane.
for respondent no. Mr Tushad Cooper, Senior
5, rwitc, in all Advocate, with Hrushi
matters Narvekar, Sameer Tapia,
Siddhi Doshi & Rohan Marathe,
i/b ALMT Legal.
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present in person Mr Swapnil Mundhe, Sub-Engineer
(Estate Department), G/S
Ward.
Mr Ulhas Deo, Assistant Engineer
(Estate Department), G/S Ward.
CORAM : G.S.Patel &
Kamal Khata, JJ.
DATED : 25th January 2024
ORAL JUDGMENT (Per GS Patel J):-
1. Yesterday, when these three Petitions were before us what
transpired fell well within that delicious expression of a 'kerfuffle',
because it was argued that at least two of these Petitions were not
within our roster assignment. That issue is now resolved by an
administrative direction, which now assigns all three matters to our
Bench. There may still be arguments to be made on maintainability,
merits, locus and so on but those are for another day.
2. A brief description of these three matters will be necessary
but they share two things in common. All three Petitions are most
identical in terms of their prayers, the annexures, most of the
averments, and even the font.
3. They also deal with the same subject matter and that is the
famous Racecourse at Mahalaxmi, Mumbai. This is a vast tract of
land of 211 acres just off Hornby Vellard. Most of the land is owned
by the State Government. Part is owned by the Municipal
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Corporation of Greater Mumbai ("MCGM"). For the longest time,
it has had almost no built constructions other than viewing stands, a
club house, stables, and a restaurant or two. Parts of the area
(though not all) are publicly accessible. There are restrictions on
racing days and during racing hours. By this we only mean that there
is no entrance fee (no one requires membership to visit the
Racecourse area for a walk). The stables, the members' enclosure
and other areas are not open to the public.
4. The challenge in the Petition is essentially to a 6th December
2023 communication. We have to find a neutral word to describe
this because the Petitioners say it is an 'order' from the highest
level, i.e., the Hon'ble the Chief Minister, which it directs that a
meeting be held by the Royal Western India Turf Club ("RWITC")
(of which one group of Petitioners are members) to hold a Special
General Meeting to consider various terms and conditions for a
renewal of a lease that expired in 2013. The earlier lease was for the
entirety of this area. The proposal is for a much reduced area. Other
terms and conditions are to be voted on by the RWITC in a special
meeting. There is also a mention in this communication of 6th
December 2023 of the lands not proposed to be covered by a lease
renewal being taken up for something described as an 'international
theme park/public garden'. Nobody at this stage is able to tell us
what an 'international theme park' is or even looks like. But that,
too, may not matter much today. The apprehension in all three
Petitions is that the land which is not brought into a renewed lease
or some portion of this excluded area will be taken up for
'development'. That expression has a wide connotation in planning
law. Land that is permanently appropriated under statute as an
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Existing Open Space ("EOS") is, the Petitioners apprehend, likely
to be diverted to built forms. This, it is argued, violates the
fundamental rights of the individual Petitioners and is also
contended to be against the public interest.
5. Before us, there are two or three issues even today. First, it is
clear to us that in exercise of our jurisdiction under Article 226 of
the Constitution of India we cannot possibly issue a mandamus to
the executive to take a decision in a particular manner.
Correspondingly, we cannot possibly direct the executive not to
decide that which is within its remit to decide. The question of the
terms of the lease and matters such as the area, the duration, who
gets to decide life membership, where the club house should be,
where the stables should be shifted and what the cost of the new
stables should be are not, we believe, matters that should concern a
writ court. These concerns are at odds and cannot be conflated with
the other concerns regarding the preservation of open spaces and
the town and country planning process in regard to the utilisation or
preservation of existing open spaces. Mr Dwarkadas for one of the
Petitioners maintains that there is a case to be made out on
legitimate expectations. We shall see.
6. For our purposes today what is relevant is the statement that
Dr Saraf, the learned Advocate General, is instructed to make no
matter what the wording of the 6th December 2023 communication.
He states on instructions that the 6th December 2023
communication is not in itself a decision. It records that a proposal
has been made. Where that proposal emanated from is not relevant.
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That proposal required a decision to be taken by the RWITC
because it was once the lessee (at least until 2013), of the entirety of
this land. Many things are possible, Dr Saraf submits. The proposal
may not even be approved by RWITC. It may be approved but the
ultimate decision is yet to be taken by the State Government when
approved by RWITC. That decision of either the RWITC or of the
State Government cannot be forestalled by a Writ Court under
Article 226 of the Constitution of India. Indeed, he submits, even if
the proposal is passed by the General Body of the RWITC the
decision that the Government may take is still entirely at large. The
Government has not committed, Dr Saraf says, to renewing the
lease on the terms that are contained in the 6th December 2023
communication. It is for this reason that Dr Saraf maintains that all
three Petitions are entirely premature at this stage. He is joined in
this submission by Mr Salve, Mr Rohatgi and Mr Singh for the
MCGM.
7. We are not inclined to pre-empt the decisions that may be
taken by the General Body of the RWITC or by the State
Government.
8. Mr Seervai for the Petitioner in Writ Petition (L) No. 2168 of
2024 maintains that since there are allegations of a certain stripe in
these Petitions, the mere statement of the Advocate General will not
suffice. He relies on the decisions of the Supreme Court in CS
Rowjee v State of Andhra Pradesh & Ors,1 a decision by a five Judge
Bench of the Supreme Court. The case involved allegations of mala
1 AIR 1964 SCC 962.
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fides or improper motives on the part of persons in authority and the
Supreme Court said that persons and authorities should place on
record their version or denials. Reliance is also placed on the
decision of the Supreme Court in RP Kapur & Ors v Sardar Pratap
Singh Kairon & Ors, in which serious allegations were made against
the chief minister.2 The Supreme Court held that an affidavit was
necessary clarifying his stand against those allegations. As against
this, Dr Saraf relies on the decisions of the Supreme Court itself in
Joginder Singh Wasu v State of Punjab,3 and of a full Bench of this
Court in DR Patil v State of Maharashtra & Ors.4
9. We do not believe that Mr Seervai's submission can be
accepted in a universal or general sense. For it is also the duty of the
Court to see the nature of the averments and allegations made. It
can hardly be suggested that by the mere making of an allegation
with nothing further, the authority of the foremost law officer to
make a statement that binds the Government is thoroughly eroded.
We have not expressed a view on the allegations of mala fides. We
decline to do so today. The Petitioners' allegations will not force an
affidavit to be filed and render insufficient the statement on
instructions of the Advocate-General. It is only when the Court
finds those allegations to have heft (not merely when they are made)
that the dicta in Rowjee or Kairon will operate. In both decisions,
there was an express finding returned that the allegations were
2 AIR 1961 SC 1117.
3 (1994) 1 SCC 184.
4 2010 (1) Mh LJ 765: 2009 SCC OnLine Bom 2022: (2010) 1 AIR Bom R
781.
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indeed serious, i.e., that left unanswered on merits, they might well
have been accepted. We are nowhere near that stage today.
10. We will not do our Advocate General the discourtesy of
disregarding the statement he makes today. We accept his
submission that the statement he makes is on instructions at the
highest levels. That is enough for us and nothing further be said in
the matter.
11. Mr Kadam for the Petitioner in Writ Petition (L) No. 2400 of
2024 attempted a submission that the RWITC General Meeting
should not be held at all, and that e-voting should not be permitted.
There are many difficulties in accepting this submission. Although
Mr Kadam says that even a dispute between a member and the club
of a which is the member which is maintainable in a Writ Petition
under Article 226, we have our greatest reservations about this. In
any case, the statement by Dr Saraf will sufficiently cover this aspect
of the matter as well. We do not even know today what the result of
that Extraordinary General Meeting will be or how the voting will
take place. Members may have their own views. They will express
them, and the results will speak for themselves.
12. We are not staying the RWITC meeting or the e-voting.
13. We are also not preventing the State Government from taking
an appropriate decision in such manner and for such reasons as it
deems fit.
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14. The question is whether these Petitions should now be
disposed of or be kept pending. The Petitioners of course say that
the Petitions should be kept pending. The Respondents say
otherwise.
15. There has already been enough difficulty in getting these
Petitions tagged together and assigned. We also see no reason why
three-volume Petitions should be disposed if they are likely to be
filed again, though that is an outcome that today we cannot possibly
predict. No harm is going to be caused to either side if these
Petitions are simply kept pending but this is clearly on the
understanding that the pendency of these Petitions will not affect
the decision-making process either way. We are not to be
understood as having rejected the Petitioners' submissions nor
having rejected the proposal by the RWITC nor having accepted nor
rejected anything stated in the 6th December 2023 communication.
16. All contentions are expressly kept at large irrespective of the
pendency of these Petitions. We clarify that the only reason to keep
these Petitions pending is, quite literally, for administrative
convenience and nothing further so far as this Court is concerned.
We have expressed no view on the rival contentions on merits at this
stage.
17. We are also unable to fix any particular date within which the
State Government must take a decision one way or the other.
Indeed, if we might be permitted the liberty, its decision may well be
not to take any decision at all.
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18. Accordingly, we cannot possibly fix the next date, but we
grant liberty to any of the parties before us to apply.
19. The administrative order by the Hon'ble the Chief Justice
requires the Registry to check the Petitions for filing defects. We are
told that this has been done. We require those filing defects to be
cured or addressed at the earliest possible and in any event before
the matters are listed again before the Court.
(Kamal Khata, J) (G. S. Patel, J)
25th January 2024
