Bombay High Court
C.R. Dalvi And Ors. vs Municipal Corporation And Ors. on 4 April, 1986
Equivalent citations: 1986(3)BOMCR624
Author: S.P. Bharucha
Bench: S.P. Bharucha
JUDGMENT S.P. Bharucha, J.
1. This petition concerns the August Kranti Maidan in Bombay. It is one of the city's playground, so designated in the existing and proposed Development Plans.
2. Until 1981 the August Kranti Maidan (now called "the said maidan") was by the Municipal Corporation of Greater Bombay (the 1st respondent) to be used every year for a fair. The residents of buildings surrounding the said maidan complained. They were assured by the Corporation that it would not be permitted to be so used any more. In September 1985 the Maharashtra Rural Games Association (the 4th respondent) was permitted by the Corporation to hold what it termed a sports festival on the said maidan. It was noted from the advertisement that the Association issued that it was likely to be more in the nature of a commercial exhibition. Upon protests, the permission given to the Association was revoked by the Corporation. The Association filed a writ petition in this Court (being O.O.C.J. Writ Petition No. 2093 of 1985) challenging the revocation on the ground that no hearing had been given to it. A stay order was obtained but, in October 1985, the permission given to the Association lapsed. Since the Association did not vacate the said maidan, some residents of buildings surrounding the said maidan filed this writ petition. It seeks a direction that the Corporation should evict the Association from the said maidan and the wider prayer that the Corporation should be restrained from giving permission for the holding of any functions, programmes, exhibitions, erections, festivals, carnivals or fairs on the said maidan or allowing it to be used for commercial purposes. On 8th November, 1981 an ad interim order was passed whereby the Corporation was directed to remove the Association from the said maidan and it was restrained from giving permission for the purposes aforestated.
3. The Association has not displayed any interest in this petition after the passing of the ad interim order. The petition survives in respect of the wider prayer that is sought.
4. The Dada, learned Counsel for the petitioners, drew my attention to the existing and proposed Development Plans, where on the said maidan is shown shaded in green along with other playgrounds, recreation grounds, parks, gardens, welfare centres, swimming pools and reservoirs. Mr. Dada referred to the relevant provisions of the Maharashtra Regional and Town Planning Act, 1966, section 22(c) thereof requires that a Development Plan shall generally indicate the manner in which the use of the land covered thereby shall be regulated. In particular, it shall provide, so far as may be necessary, for, inter alia, proposals for designation of areas for open spaces, play-grounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries and dairies. By reason of section 31(6), the Final Development Plan is binding on the Corporation. Under the provisions of section 42 it is the duty of the Corporation to take such steps as necessary to carry out the provisions of the Development Plan.
5. In Municipal Corporation for Greater Bombay v. The Advance Builder (India) Pvt. Ltd., , the Supreme Court observed that since development and planning was primarily for the benefit of the public, the Corporation was under an obligation to perform its duty, in accordance with the provisions of the Town Planning Act.
6. To the affidavit filed on behalf of the Corporation a circular dated 10th April, 1981 is annexed. The circular directs the Corporation's Ward Officers not to allow the use of the Municipal playgrounds for holding fairs, exhibition or similar other purposes. It also directs that permission for the use of playgrounds other than the one stated in the first enclosure hereto should not be given. The first enclosure lists 41 playgrounds, including the August Kranti Maidan, and gives the square area of each. There are playgrounds having areas as small as 930 sq. meters and there is one playground which has an area as large as 43,000 sq. meters. The area of the August Kranti maidan is shown to be 24,471 sq. meters. The second annexure to the circular is a statement showing the charges or fess recoverable by the Corporation for the hire of playgrounds. We are not concerned with the charges or fees. What we are concerned with are the purposes for which permissions are proposed to be given by the corporation for the use of the playgrounds. The purposes listed in the second enclosure include the meetings of political parties and trade unions; religious functions such as Ganesh Utsav, Navratri Utsav, Ram Leela and Durgapooja; functions in connection with the Jayantis or Punyatithis of national leaders; functions for celebrating Independence Day, Republic Dayand Maharashtra Day; entertainments such as Loknatyas, Tamashas and drama; circuses; film shooting; and jatras (fairs). The second enclosure also contemplates that the playgrounds can be given out on hire for more than one day.
7. Mr. Dada drew my attention to the definition of playground in the Oxford English Dictionary. It is defined to be "a piece of ground used for playing, especially one attached to a school; hence a place of recreation, however extensive."
8. It was Mr. Dada's submission that the Corporation was obliged to ensure that the said maidan, designated as a playground under the existing and proposed Development Plans, was used only by children for play. In his submission, the Corporation was not entitled to permit the said maidan to be utilised for the purposes mentioned above.
9. Mr. Dalal, learned Counsel for the Corporation, submitted that account had to be taken of the other purposes for which the use of open land became necessary. He drew my attention to section 317 of the Bombay Municipal Corporation Act whereunder even a street may be used for the temporary erection of a booth on occasions of ceremonies and festivals.
10. In my view, a plot of land reserved as a playground under the Development Plans cannot be utilised for any purpose other than the play of children and similar recreational activities. There are not any open spaces in the city where children can play. Such playgrounds as there should be kept available for them. At the same time, some latitude must be permitted having regard to the same scarcity of open spaces.
11. The directions I purpose to give cannot having regard to the interest of the general public, be confined only to the August Kranti Maidan but shall operate in regard to all plots of land designated as playgrounds in the existing and proposed Development Plans.
12. Directions of the Municipal Corporation of Greater Bombay regarding the use of playgrounds under the current and proposed Development Plans:-
A. Playgrounds not listed in the second annexure to the Municipal Corporation's Circular No. MDB/8480 dated 10th April, 1981 shall at all times be reserved exclusively for the play of children and similar individual recreational activities. No part of these playgrounds shall be hired out for any purpose or be allowed to be used for any other purpose.
B. Playgrounds listed in the aforesaid annexure having a square area of 5000 sq. meters or less shall at all times be reserved exclusively for the play of children and similar individual recreational activities. No part of these playgrounds shall be hired out or be allowed to be used for any purpose other than sports or physical training.
2(a) Half the square area of playgrounds listed in the aforesaid annexure having an area of more than 5000 sq. meters shall at all times be reserved exclusively for the play of children and similar individual recreational activities. No part of this area of these playgrounds shall be hired out or be allowed to be used for any purpose other than sports or physical training.
(b) The Municipal Corporation may give on hire the balance half of these playgrounds for the purposes set out in the aforesaid annexure, but not for the purposes of circuses, film shootings or jatras (fairs).
(c) Such hire or use as is permissible under sub-clause (b) shall be for a period not exceeding one day.
(d) For functions organised on the occasions of Independence Day, Republic Day, Maharashtra Day and similar national events, and the Jayanti or Punyatithis of national leaders, the Corporation may give on hire or allow to be used the entire areas of all playgrounds listed in the aforesaid annexure, including those having an area of 5000 sq. meters or less.
13. Rule accordingly. No order as to costs.