Bombay High Court
Jamshed Kanga & Others vs The State Of Maharashtra & Ors on 10 June, 2011
Author: D.G. Karnik
Bench: Mohit S Shah, D.G. Karnik
1 PILWP 133/2006
abs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PIL WRIT PETITION NO.133 of 2006
Jamshed Kanga & others ... Petitioners
versus
The State of Maharashtra & ors, ... Respondents
...
Mr. Vivek Menon with Mr. Gautam Patel and Mr. T. Jariwala
i/b Thakore Jariwala & Associates for the petitioners.
Mr. D.J. Khambata, Additional Solicitor General with Mr.
C.S. Balsara i/b A.S. Dayal Associates for respondent no.7.
Mr. Ravi Kadam Advocate General with Mr. K.R. Belosey
with Mr. N.P. Pandit, A.G.P. for the State.
Mr. K.K. Singhvi, Senior Advocate for the BMC.
Mr. G. Hariharan for respondent no.4.
Mr. Janak Dwarkadas, Senior Advocate with Mr. D.D.
Mehta i/b Madekar & Co. for the applicants (interveners).
CORAM : MOHIT S SHAH, C.J. &
D.G. KARNIK, J
DATE OF RESERVING THE ORDER : APRIL 20, 2011
DATE OF PRONOUNCING THE ORDER: JUNE 10,2011
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2 PILWP 133/2006
JUDGMENT:(Per D.G. Karnik, J.)
1. By this petition, the petitioners challenge the order dated 9 July 2009 passed by the then Chief Minister Mr. Sushilkumar Shinde allowing an appeal under section 47 of the Maharashtra Regional Town Planning Act, 1966 (for short "the MRTP Act") and thereby granting permission to the respondent 7, the Western India Football Association (for short "WIFA") permission to develop a plot of land bearing C.S. No. 4, Fort Sub-Division, Mumbai (commonly known as "the Cooperage plot") by carrying out construction to the extent of 12052 sq. m (about 1,29,700 sq. feet) consuming 0.5 FSI of the total recreational ground admeasuring about 28,412 sq. m. The petitioners also seek a direction to the respondents restraining them from permitting in any manner the use of Cooperage plot in the Cooperage area for non-sporting activities such as holding of wedding receptions and other social functions unrelated to sports. The petitioners have also challenged the vires of section 91AA(2) of the Bombay Municipal Corporation Act, 1888 which in the year 1996 was renamed as Mumbai Municipal Corporation Act, 1888 (for short "the MMC Act").
::: Downloaded on - 09/06/2013 17:20:03 ::: 3 PILWP 133/20062. The petition has been filed in the public interest by the citizens living around and in the vicinity of the cooperage plot who have formed an association called the Oval Cooperage Residents Association (for short "the OCRA") . The petitioners 2 to 4 are members / office bearers of the OCRA. The petitioner 5 is a non-
government, non profit organisation which seeks to protect, conserve and promote India's natural and culture heritage. It's first Chairman was former Prime Minister of India late Mr.Rajiv Gandhi. Late Ms. Pupul Jaykar, late Mr. Madhavrao Scindia and late Mr. Mulk Raj Anand in their life time were its members. Petitioners 6 and 7 are the co-
operative housing societies of the residents in the locality.
Respondent 1 is the State of Maharashtra, respondent 2 is the municipal corporation and respondent 3 is the Commissioner of Police, Mumbai. Ministry of Environment and Forests is joined as respondent 4 and the Municipal Heritage Conservation Committee is joined as respondent
5. Collector of the City of Mumbai is respondent 6 and the WIFA who is proposing to carry out the construction is respondent 7.
::: Downloaded on - 09/06/2013 17:20:03 ::: 4 PILWP 133/2006Basic Facts
3. In the early Eighteenth Century, the Cooperage ground was a part of "The Esplanade", a vast area/maidan that stretched from Azad and Cross Maidan (north) to the Oval and Cooperage Maidan (south). In 1860s, the Esplanade was divided into 4 major sections viz. The Cooperage, the Oval maidan, the Cross maidan and the Azad maidan. Between the years 1904 and 1933 the Cooperage was developed by the Improvement Trust (set up by the Government in the year 1988 with the mandate to de-congest the city) with a large area reserved as a recreational ground which was opened to public. In the year 1933, the MMC Act was amended to introduce section 91A to 91C therein and under sub-section (1) of section 91A, all the estate, right, title and interest in the Cooperage and other lands and properties of the Improvement Trust including the lands described in Schedules W, X and Y vested in the Mumbai Municipal Corporation.
4. It appears that the original Cooperage was thereafter divided into four parts, ::: Downloaded on - 09/06/2013 17:20:03 ::: 5 PILWP 133/2006
(i) the southernmost part is occupied by the Bandstand with traffic park, playgrounds and parking lot,
(ii) the second part to the north of and adjoining to the Bandstand is occupied by the Sailor's Home comprising of a club house for non officer ranks of the Indian Navy.
This part is partly built up with surrounding open ground,
(iii) the third part to the north of and adjoining the Sailor's Home is occupied by the Maharashtra State Lawn Tennis Association and consists of a small club house and tennis courts,
(iv) the northernmost part consists of open land admeasuring about 28189 sq. meters and is in occupation of the respondent 7 since July 1969 under a lease. This portion forms the subject matter of the petition and is hereinafter referred as "the Cooperage ground".
5. On 3 July 1969, Government of Maharashtra granted a lease in respect of the Cooperage ground to the respondent 7 WIFA commencing from the date of handing over of the possession and ending on 31 December 2003 on ::: Downloaded on - 09/06/2013 17:20:03 ::: 6 PILWP 133/2006 a rent calculated at the rate of Rs.1/- per sq. yard per month for the built up areas, 37 paise per 10 sq. yard per day for areas with semi permanent structures and 10 paise per sq. yard per annum for unbuilt areas. It appears that some part of the larger Cooperage was also let out to the Indian Navy for the Sailors' Home. It appears that a contention was raised that the State Government had no power to grant a lease of the larger Cooperage plot or any part thereof and allowing the construction of any structure thereon and, therefore, section 91AA was introduced into the MMC Act by the legislature by the Amending Act no.
XX of 1952. Sub-section (1) of section 91AA permitted the State Government to grant a lease of plot no.3 of the larger Cooperage plot to the Indian Navy for construction of a club house for ratings of Indian Navy or any other similar purpose. Sub-section (2) empowered the government to lease out the Esplanade ground, which forms a part of the larger Cooperage plot, for construction of a football stadium with ancillary structures for a term ending on and inclusive of 31 December 2003 or such later date as the State Government may specify.
6. In April 1995, the Cooperage ground was notified as ::: Downloaded on - 09/06/2013 17:20:03 ::: 7 PILWP 133/2006 being part of Oval sub-precinct and the same was listed as Item No.633 (14) under the Heritage Regulations for Greater Mumbai. On 12 July 1999, respondent 2 issued a notification inviting objections and suggestions from the public and for notifying the list of Heritage structures. It is, however, not clear whether further action was taken in pursuance of the said notification.
7. On 15 September 2000, respondent 1 issued a notification by which it proposed to increase the FSI for gymnasia, club, pavilion or stadia from 0.5 to 1.00 on 50% of the area of the land reserved as Recreational Grounds (RG). On 9 July 2002, respondent 7 prematurely surrendered the lease of the Cooperage ground granted to it under the lease deed dated 3 July 1969 which was due to expire on 31 December 2003 and on the very day respondent 1 granted a fresh lease of the very Cooperage ground to respondent 7, represented by its President Mr. Praful Patel for a period of 30 years commencing from 17 June 2000 on a yearly rent of Rs.3,17,082/-. The lease permitted construction of a permanent stadium and other ancillary structures on the Cooperage ground. On 11 December 2002, respondent 7 submitted to the respondent ::: Downloaded on - 09/06/2013 17:20:03 ::: 8 PILWP 133/2006 2 Municipal Corporation its proposal for development of the Cooperage ground for construction of a football stadium, a club house and other ancillary structures having a total built up area of 12,052 sq. m (roughly equivalent to 0.5 of the FSI of the total ground). By a letter dated 10 December 2002, the respondent 2 (through Assistant Engineer, Building Proposals) informed the respondent 7 the rejection of the building proposal on the following grounds:
(i) The plot was reserved for the public purpose of recreation ground (R.C.) in the revised development plan of "A" ward sanctioned by the government.
(ii) The land falls within 500 meters of the high tide line and the Cooperage ground was included in CRZ-II in the Coastal Zone Management plan sanctioned by the Ministry of Environment and Forests, Government of India.::: Downloaded on - 09/06/2013 17:20:03 ::: 9 PILWP 133/2006
The impugned decision
8. Aggrieved by the refusal to sanction the plan, the respondent 7 WIFA filed an appeal under section 47 of the MRTP Act to the Government of Maharashtra. The appeal was heard by the then Chief Minister Mr.Sushil Kumar Shinde, who by his order dated 9 July 2003 allowed the appeal and directed the respondent 2 to approve the redevelopment proposal of respondent 7 with 0.5 FSI on the Cooperage ground. That decision is impugned in this petition.
Contentions of the petitioners
9. Learned counsel for the petitioners submitted that the Cooperage ground is required to be kept open for the use of the citizens and residents of the locality and the grant of permission by the respondent 1 for construction which is essentially going to be a club house and an attached football stadium is illegal and void. The open spaces in Mumbai are awfully short and further diminution to open spaces and recreational grounds by allowing construction of a football stadium with a club house would further diminish the open spaces which act as lungs of a city. A common index to judge the adequacy of open ::: Downloaded on - 09/06/2013 17:20:03 ::: 10 PILWP 133/2006 spaces in a city is the ratio of open spaces for every 1000 citizens. The ideal ratio, submitted the counsel for the petitioners, is 4 acres per 1000 persons. London has a ratio of 4.84 acres per 1000 people while New York has a ratio of 5.33 acres. In contrast, Mumbai has the ratio of 0.03 acres of open space available for every 1000 people.
The development plan for Greater Mumbai in 1947 had recommended a ratio close to 4 acres per 1000 persons but regrettably the target was abandoned in subsequent plans and the ratio has suffered further reduction due to dereservation of public spaces at the behest of private commercial interests. For challenging the decision of the impugned order and grant of the permission for construction of a club house, the counsel urged the following contentions:
(i) The right to public open spaces and access to recreational grounds is an integral part of the right to life under Article 21 of the Constitution of India which includes right to healthful and wholesome living. By diverting open space of the Cooperage ground for construction of a club house, the respondents are violating the fundamental rights of citizens under Articles 19(1)(d) and 21 of the ::: Downloaded on - 09/06/2013 17:20:03 ::: 11 PILWP 133/2006 Constitution of India. Article 48A sets out a directive principle of State policy requiring the State to endeavour to protect and improve the environment. Article 51A imposes a fundamental duty on every citizen of India to safeguard public property and to protect and improve the natural environment (clauses (i) and (g)). By filing the petition, the petitioners were performing their public duty of protecting and improving the natural environment by preventing unlawful construction of a football stadium with a club house. While allowing construction of a football stadium in a residential area, the necessary factors such as traffic management, security, crowd management ability, appropriate arrangement for ingress and egress from the stadium especially on a match day, the resultant stress on the infrastructure such as communication system, sanitary facilities etc. had not been examined at all.
(ii) The decision of allowing the construction of stadium with a club house was contrary to the provisions of the MRTP Act, 1966 and the Development Control Regulations for Greater Mumbai, 1991 (for short "the DC Regulations, 1991"). The development plan for island city of Mumbai was sanctioned and published pursuant to the suggestions ::: Downloaded on - 09/06/2013 17:20:03 ::: 12 PILWP 133/2006 and objections invited from the public in which the Cooperage ground was shown as an R.G. (Recreation Ground) area. The publication of plan amounts to a representation to the public at large that the Cooperage ground is reserved as a recreation ground (R.G.) and this representation as well as the DC Regulations had an overriding effect over any private lease or agreement to the contrary. Any condition in the lease deed granted by the respondent 1 State in favour of the respondent 7 WIFA permitting development contrary to the DC Regulations was void. Any change in the DC Regulations could be made only by following the procedure under section 37 of the MRTP Act and as the development plan has not been modified under section 37 of the MRTP Act, the grant of permission for construction of a club house with 0.5 FSI was illegal and void.
(iii) Permission was contrary to the notifications for Coastal Regulation Zone (for short "the CRZ"). The Cooperage ground is near the southernmost tip of the island city of Mumbai. It falls within 500 meters of the High Tide Line (HTL) of the sea on both sides, i.e. it falls within 500 meters of HTL of Western as well as Eastern ::: Downloaded on - 09/06/2013 17:20:03 ::: 13 PILWP 133/2006 sea. As such, no permission for construction of building could be granted in violation of CRZ Rules and notifications. Even as per the contention of respondent 7 (as recorded in the impugned order of the Chief Minister dated 9 July 2003), the FSI norms as of 19 February 1991 are applicable to the Cooperage ground. According to respondent 7 WIFA, the DC Regulations of 1991 were not applicable and the DC Regulations of 1967 were applicable. Even if this contention of respondent 7 WIFA was accepted, under DC Regulations of 1967 read with the then development plan of 1967, the Cooperage ground was designated as green area with nil FSI. Therefore, even under the DC Regulations of 1967 FSI of 0.5 could not have been available to the respondent 7. This submission was made without prejudice to the contentions of the petitioners that under the DC Regulations of 1991 and in particular explanation (iv)(a) to Regulation 9, the FSI available in respect of recreation ground was maximum 15% and that too on 10% of the land which could be used for the amenities. The order for sanction of plan for 0.5 FSI was illegal.
(iv) The respondent 7 WIFA was misutilising the lease ::: Downloaded on - 09/06/2013 17:20:03 ::: 14 PILWP 133/2006 granted to it by the respondent 1 State by letting out the Cooperage ground for non-sport activities like marriage receptions. With the construction of proposed club house, earning of respondent 7 would increase manifold with restaurant, banquet hall, hotel rooms and other commercial uses which do not even qualify even as an ancillary use to a stadium. The respondent 7 WIFA would collect fees for membership in lacs of rupees and would generate income in hundreds of crores on a measly annual lease rent of Rs.3,17,000/-. The lease granted was malafide as the Chairman of respondent 7 WIFA is a leader of Nationalist Congress Party which formed part of the coalition government at the relevant time (grant of lease) and even today.
10. Turning to the first contention of the petitioners, it cannot be doubted that the right to life conferred under Article 21 of the Constitution of India has been given extended meaning by the Supreme Court in numerous cases. The right to life does not only mean a right of a physical existence but a right to live with human dignity and meaningfully and includes a right to live with an opportunity for development of human potentials to fullest ::: Downloaded on - 09/06/2013 17:20:03 ::: 15 PILWP 133/2006 extent. We are, however, not convinced that by allowing construction of a football stadium with a club house attached to it would anyway infringe the right to life and right of having an opportunity of development of all or any aspects of human life. Sport is a part of development of human body and mind. Clause (f) of Article 39 of the Constitution of India provides that the State shall direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity. Promoting sport especially amongst children and providing them with a facility of a good, if not world class, stadium for developing the skills of play of football is in consonance with the directive principle laid down in clause (f) of Article 39 of the Constitution of India. Of course, the State also has a responsibility of protecting the environment. Several measures have been taken by the State like issuing of CRZ notifications, passing of Town Planning Acts and Development Control Regulations for the purpose of orderly development. Any development would have the effect of affecting environment albeit to some extent. The MRTP Act, the Development Control Regulations for different areas framed under the MRTP Act and the CRZ ::: Downloaded on - 09/06/2013 17:20:03 ::: 16 PILWP 133/2006 Regulations take care to balance the need to protect the environment and also the need for orderly development affecting environment minimally. Any person who complains that any decision of the State or a municipality permitting development is likely to affect his right to life under Article 21 of the Constitution of India by causing pollution to the environment or otherwise would be required to prove it. He can do so firstly by establishing that any rule or notification or development control regulation issued for CRZ management is infringed by such permission. If such infringement is proved, then the permission for development will be struck down not only on the ground that it infringes the law or the rule but is likely to affect his right to life because the law or the rule has been framed so as to protect his right to life, i.e. to live in a healthy environment. In the present case, the impugned order does not violate the MRTP Act, the DC Regulations or the CRZ Regulations. No material was placed on record to show that permission to construct a stadium with an attached club house in any way would so damage the environment as to affect the right to life under Article 21 of the Constitution of India. A mere reference to the statistics as to the open spaces in London and in New ::: Downloaded on - 09/06/2013 17:20:03 ::: 17 PILWP 133/2006 York and other cities of the world vis-a-vis the open spaces in Mumbai cannot be a ground to strike down the building permission and development of any open space on the ground that open spaces in Mumbai or any other city in India are far less than the open spaces in London and New York. In paragraph 9 of the petition, the petitioners themselves have conceded that the development plan for Greater Mumbai in 1947 had recommended a ratio of close to 4 acres open space per 1000 persons, but regrettably the target was abandoned in the subsequent plans. The planning authority which consists of experts have not fixed any specific ratio of open spaces in a city per 1000 population. In the absence of adequate material, we cannot hold that a city requires a particular percentage of open spaces and that grant of building permission in the present case would result in diminution of open space to such an extent as to affect the right to life under Article 21 of the Constitution of India. At this stage, we would like to record the statement made before us by Mr. Khambata, learned Additional Solicitor General appearing for the respondent 7 that the respondent 7 would keep the Cooperage ground (except the club house) open for use by all the residents in the locality and all citizens without any ::: Downloaded on - 09/06/2013 17:20:03 ::: 18 PILWP 133/2006 hindrance or obstruction except on the match days, i.e. the days on which football matches are being played on the ground.
11. The second contention of the petitioners is that the proposed construction is contrary to the Development Control Regulations for Greater Bombay, 1991. In particular, our contention was invited to explanation (iv) to Regulation 9 of the DC Regulations. Regulation 9 specifies the purposes for which the land situated within the municipal limits of Greater Bombay can be used.
Permissible uses of a land, the persons or the authority who may develop and the conditions subject to which the development of a land is permissible are given in a tabular form below Regulation 9. At the end of the table, there is an explanation. Clause (iv) of the explanation reads as under:
"(iv) (a) In case of development of lands for Swimming Pools, Recreation Grounds and Playgrounds, Construction for ancillary uses only may be permitted (in a suitable location so as to keep as much of the remaining space ::: Downloaded on - 09/06/2013 17:20:03 ::: 19 PILWP 133/2006 open) upto 15% on 10% of the land for the said amenities.
(b) In case of development of lands for Gymnasia, Gymkhana, Club, Pavilion, Stadia on sites reserved / designated / earmarked / nominated as such (existing or proposed) FSI of 1.00 shall be allowed on 50 per cent of the area of the land for the said amenities."
Counsel for the petitioners submitted that in case of recreation grounds and playgrounds, construction for ancillary uses can be permitted only upto 15% of the FSI on 10% of the land as provided under clause (a) of explanation (iv). In the present case, the permission has been granted for construction of 0.5 FSI which is far in excess of 15% or 0.15 FSI permissible under explanation
(iv) to the Regulation 9. Building permission granted by the Chief Minister is, therefore, contrary to the DC Regulations and needs to be struck down.
12. Per contra, Mr. Khambata, learned Additional Solicitor General appearing for respondent no.7, submitted ::: Downloaded on - 09/06/2013 17:20:03 ::: 20 PILWP 133/2006 that in view of section 91AA of the MMC Act, development of the Cooperage ground is permissible irrespective of any restriction under the MRTP Act or any development plan sanctioned thereunder. Sub-section (2) of section 91AA of the MMC Act reads as under:
"91AA. Power to grant lease of Plot No.3,
the Cooperage Plot, or part thereof.
(1) ....
(2) Notwithstanding any thing contained in sub-section (2) of section 91-A or sub-section (1) of this section or in the Maharashtra Regional and Town Planning Act, 1966, or the provisions of any Development Plan thereunder, it shall also be lawful and shall be deemed to have been lawful for the State Government to lease a part of the Cooperage Plot for a term ending on and inclusive of the 31st December, 2003 or such later date as the State Government may specify for the construction of a football stadium, with ancillary structures for gymnasium, indoor games, residential quarters, club-house, dormitory, canteen, library, conference rooms, ::: Downloaded on - 09/06/2013 17:20:03 ::: 21 PILWP 133/2006 show rooms and similar purposes and the provisions of the first proviso in sub-section (3) of the said section 91-A shall not apply to the part of the said Plot leased for the above purposes, so long as such lease remains in force and has not been determined or has not been surrendered or otherwise terminated in accordance with law."
Sub-section (2) begins with a non-obstinate clause and inter alia provides that notwithstanding anything contained in the Maharashtra Regional Town Planning Act or the development plan thereunder it shall be lawful for the State Government to lease a part of the Cooperage plot for the construction of a football stadium with ancillary structures for gymnasium, indoor games, residential quarters, club house, dormitory canteen, library, conference rooms, show rooms and other similar purposes and the first proviso in sub-section (3) of section 91A shall not apply to the part of the said plot leased for the aforesaid purpose so long as the lease remains in force and has not been determined or has not been surrendered in accordance with law.
::: Downloaded on - 09/06/2013 17:20:03 ::: 22 PILWP 133/200613. In our view, sub-section (2) of section 91AA of the MMC Act permits the State grant of lease of the Cooperage ground for the purpose of construction of football stadium with ancillary structures mentioned above, irrespective of any restriction for construction of a club house and ancillary structures under the MRTP Act or the DC Regulations framed thereunder. The effect of sub-section (2) of section 91AA of the MMC Act is to remove the restrictions on the development imposed under the MRTP Act and the DC Regulations, where a lease (of the Cooperage ground) has been granted by the government for construction of a football stadium with ancillary structures. In case of a lease granted by the government in accordance with sub-section (2) of section 91AA of the MMC Act, construction of a football stadium with ancillary structures shall be governed by the terms of the lease and is not to be treated as prohibited by the MRTP Act or the DC Regulations. Clause 2(d) of the lease deed specifically permits respondent 7 to build, construct or erect on the demised land (the Cooperage ground) a permanent stadium and other ancillary structures such as dormitory, library, conference rooms, gymnasia, canteen, courts for ::: Downloaded on - 09/06/2013 17:20:03 ::: 23 PILWP 133/2006 indoor games, residential quarters, club house and other amenities subject to the prior approval in writing of the architect to the government. Clause 2(e) of the lease deed provides that the construction of no building shall be commenced unless the plans have been previously approved in writing by the architect to the Government of Maharashtra. The lease deed thus contemplates prior permission of the architect to the Government of Maharashtra to be obtained before commencement of the construction. In our view, in view of sub-section (2) of section 91AA of the MMC Act, permission for development of the Cooperage ground can be granted notwithstanding any provision to the contrary in the MRTP Act and the DC Regulations but subject to the prior approval of the architect to the Government of Maharashtra.
14. In our view, the explanation (iv) to Regulation 9 of the DC Regulations would not be applicable to the construction of the football stadium with ancillary structures on the Cooperage plot and the construction and development would be only subject to the prior approval of the architect to the Government of Maharashtra in view of sub-section (2) of section 91AA of the MMC Act and the lease deed ::: Downloaded on - 09/06/2013 17:20:03 ::: 24 PILWP 133/2006 dated 9 July 2002 executed in pursuance thereof.
15. We must, however, add that while in view of sub-
section (2) of section 91AA of the MMC Act, the question of permissibility of construction of stadium and other ancillary structures on the Cooperage ground is to be decided irrespective of any provisions contained in MRTP Act and the Development Control Regulations, building plans have to be submitted to the competent authority under the Development Control Regulations for approval for the purpose of compliance with Development Control Regulations prescribing in various parameters for construction of building/s.
The learned counsel for respondent no.7 also did not dispute the above proposition.
16. The third contention that the permission granted is violative of CRZ Notification has no force. Permission for the proposed reconstruction of the existing football stadium on the Cooperage ground (CS No.4 Part) has been granted by the Ministry of Environment and Forest vide its letter dated 30 November 2005, a copy of which is annexed ::: Downloaded on - 09/06/2013 17:20:03 ::: 25 PILWP 133/2006 by the petitioners themselves as Exhibit-K to the petition.
The letter states that the Ministry after examining the proposal accords clearance under the Coastal Regulation Zone Notification, 1991 for the project (reconstruction of existing stadium) subject to the terms mentioned therein.
Inviting our attention to conditions 1 and 2 contained in the letter, counsel for the petitioners submitted that the proposed construction violates conditions 1 and 2 which read as under:
"1. The Floor Space Index (FSI) to be used for the project should not exceed the FSI as existed on 19.2.1991.
2. The proposed development should be taken up on the landward side of the existing (constructed prior to 19.2.1991) authorised structure/road."
17. Counsel submitted that condition 1 specified that the FSI to be used for the project should not exceed as existed on 19 February 1991. He further submitted that the FSI as on 19 February 1991 was only 0.15, that is to say only 15% ::: Downloaded on - 09/06/2013 17:20:03 ::: 26 PILWP 133/2006 of the total land area. The proposed construction has an FSI of about 0.5, that is 50% of the land area and, therefore, condition 1 is violated. This contention was also raised before the Chief Minister in the appeal under section 47 of the MRTP Act. The same has been dealt with in his order as follows:
" The FSI prevalent for stadia and clubs on 19th Feb. 1991 was either that prescribed in the D.C. Regulations sanctioned in the year 1967 and in force till 25th March 1991 or those published by the Stat Government vide notification No. TPB 4387/716/UD-11 (RDP) dated the 12th June 1989.
In both these sets of Regulations of 1987 and 1989, the FSI prescribed for stadia and clubs as well as that for other users mentioned in the lease deed of the demised land is 1.33 in the island city. What the Govt. notification of 15th September 2000 has done is to decrease this 1.33 FSI. Reduction of FSI values prevailing on 19th Feb. 1991 in CRZ is not violative of the CRZ Notification. Hence the plans for 0.50 FSI may be approved."::: Downloaded on - 09/06/2013 17:20:03 ::: 27 PILWP 133/2006
18. It was not shown to us that FSI permissible as per the DC Regulations of 1967 which were in force on 19 February 1991 was only 0.15. In the circumstances, the contention that the first condition imposed by the Ministry of Environment and Forest while granting CRZ clearance cannot be accepted.
19. At this stage, we would like to record the statement made by Mr. Khambata, learned Additional Solicitor General, appearing for respondent no.7 that respondent no.7 Association shall not put up any construction or to submit any plans for construction on the Cooperage ground in excess of FSI of 0.50.
20. The second condition provides that the development should be taken up on the landward side of the existing (constructed prior to 19 February 1991) authorised structure/road. Counsel for the petitioners pointed out that the Cooperage plot falls in a narrow strip at the southern side in the island city of Mumbai. There is a sea on the eastern as well as western side of the Cooperage ground within a distance of 500 meters. In our view, for ::: Downloaded on - 09/06/2013 17:20:03 ::: 28 PILWP 133/2006 construction on the eastern side of the Cooperage plot, the condition 2 would be referable to the eastern sea and in respect of construction on the western side of the Cooperage plot the reference would be to the western sea.
So construed, the proposed construction would not be violative of condition 2 because so far as the construction on the western side of the Cooperage ground is concerned, it would be on the roadward side of the western road.
Similarly, the construction on the eastern side of the Cooperage ground would be on the roadward side of eastern road. The southern tip of the island city of Mumbai is developed. Constructions have been made all over in the southern tip around the Cooperage ground.
There are constructions between the sea and the Cooperage ground on the eastern as well as western side.
In fact, the buildings of the petitioners 6, 7 and 8 societies have also been constructed between the western sea and the Cooperage plot. The said buildings are in existence for many years. The locality is completely developed. The allegation of the petitioners is that there is congestion of traffic which would further increase if a football stadium is allowed to be constructed as large number of vehicles of the visitors would come in. This destroys the argument of ::: Downloaded on - 09/06/2013 17:20:03 ::: 29 PILWP 133/2006 the petitioners that the area does not fall under CRZ-II area. In our view, the Cooperage plot falls under CRZ-II area and the development therein is permissible subject to the permission of the Ministry of Environment and Forest which, as stated earlier, has already been obtained.
21. The last contention of the petitioners that respondent 7 is misusing the Cooperage ground in breach of the conditions of the lease by letting out the Cooperage ground for non-sport activities like marriage receptions.
Even if we assume it to be true, that would not affect the validity of the building permission. If the Cooperage plot is being used for non-sport activities like marriage functions contrary to the provisions of the lease deed dated 9 July 2002, the respondent 1 State would be entitled to terminate the lease. It would be open to the petitioners to make an application to the State for termination of the lease if there is any misuse of the Cooperage ground and any of the terms and conditions of the lease deed dated 9 July 2002 are violated. If such an application is made, we have no doubt that the State Government shall consider it in accordance with law. The building permission which is granted in accordance with law while the lease is ::: Downloaded on - 09/06/2013 17:20:03 ::: 30 PILWP 133/2006 subsisting cannot be faulted on the ground of alleged violation of the terms of the lease deed. The last contention also therefore has no merit.
22. Before we part, we must mention that no other contentions were urged. Though the petition challenges the constitutional validity of section 91AA of the MMC Act, no arguments were addressed to us about its constitutional validity.
23. For these reasons, subject to the finding given in paragraph 15 and the statements recorded in paragraphs 10 and 19 herein above, there is no merit in the petition.
For the sake of convenience, we reproduce the statements made in paragraphs 10 and 19 and the finding in para 15 below:
(i) That the Cooperage ground (except the club house) would be open for use to the public on all days of the year except the match days, i.e. the days on which the matches are being played on the Cooperage ground.
(ii) That the respondent 7 shall not in future put up any ::: Downloaded on - 09/06/2013 17:20:03 ::: 31 PILWP 133/2006 construction nor submit any plans for construction on the Cooperage ground in excess of FSI of 0.50.
(iii) While the question of permissibility of construction of stadium and other ancillary structures on the Cooperage ground is to be decided irrespective of the provisions contained in the Maharashtra Regional and Town Planning Act and the Development Control Regulations, the building plans will have to be submitted to the competent authority under the Development Control Regulations for approval for the purpose of compliance with Development Control Regulations prescribing various parameters for construction of the building. This position is not disputed by the learned counsel for the respondent 7.
By recording these statements and finding, we dismiss the writ petition.
CHIEF JUSTICE D.G. KARNIK, J.
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