Wednesday, December 7, 2022

Bombay High Court dismisses PIL against playground been used for commercial activity

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The Bombay High Court dismissed a Public Interest Litigation (PIL)  raising a grievance that a playground has been permitted to be used by the public authorities with commercial interest in mind, although the law is well settled that a playground cannot be used for any purpose other than games and sports activities.

According to the PIL filed by one Vinayak Yasvant Sanap ,  a function is scheduled to be organized between 26th September 2022 and 6th October 2022 and that members of the public would be allowed entry in such function only upon payment of charges. This, according to the petitioner, is absolutely illegal and contrary to public interest, since a playground has to be kept accessible to the public without any charge and this noble object is sought to be frustrated.

Preliminary objections to the maintainability of the petition have been raised by the respondents.  

Appearing on behalf of the State, Abhay L.  Patki, Additional  Government Pleader has invited the  attention of the Court to section 37-A of the Maharashtra Regional & Town Planning Act, 1966  and has submitted that  allotment of the vacant space in question, which is undoubtedly reserved for a playground, has been made in terms thereof. Since section 37-A is not under challenge, he contends that the action impugned cannot be branded by the petitioner as illegal.

It is further submitted by  Patki and the  Mukesh M. Vashi (Counsel for the event organizer)  that an allotment of the playground has been made in favour of one Sai Ganesh Welfare Association, Borivli , however, neither is such allotment under challenge in the petition nor is the said Sai Ganesh Welfare Association, Borivli a respondent in the petition.  Vashi has joined  Patki in contending that there is no challenge to the vires of section 37-A of the Act.
It has further been shown to the Court  by  Vashi from one of the documents in the compilation tendered across the Bar that the initial announcement with regard to the function was made on 26th August 2022. According to him, since then all arrangements have been completed for organizing the function to celebrate Navratri and this belated attempt by the petitioner to stall the function without seeking relief against similar events/functions, which are organized all over Mumbai during Navratri, tends to suggest that the petition has been moved with ill-motives.   

Vashi also contended that a similar function organized in 2019 at the same playground went unchallenged by the petitioner. It is, therefore, not open to the petitioner to approach the Court now, since the leave obtained by him from the Court earlier cannot be availed at any time of his choice.  

Mayur Vinod Faria  , advocate for the petitioner, however, has sought to contend that section 37-A of the Act is not applicable in the present case nor has the petitioner any illmotives in mind. According to him, the petitioner is interested in protecting the playgrounds and that commercial exploitation of   a playground for purposes other than sports activities ought to be interdicted by the Court in the exercise of its extraordinary writ jurisdiction.

The Division Bench of Chief Justice Dipankar Datta and Madhav J. Jamdar noted  that there is no challenge to the vires of section 37-A in the PIL , although the non-obstante clause therein would override inter alia any judgment and order passed by the Court restraining the use of a land for a purpose different from that for which it has been reserved in the development plan. In the absence of any challenge to the vires of section 37-A of the Act, the Court need not examine whether the legislature has the power or competence to enact such a law or, in the alternative, whether such a law falls foul of Article 14 of the Constitution.

Since it has been contended by Mr. Patki that power under section 37-A was exercised in the present case and there is no material on record to suggest to the contrary, the Court  proceed on the premise that section 37-A is a valid piece of legislation which was invoked for the purpose of grant of permission to Sai Ganesh Welfare Association to have the event/function organized.  

Further the High Court  did not find any reason to accept the contention of Faria that section 37-A has no application on facts and in the circumstances. It would be evident from section 37-A that permission for temporary change of user could be obtained inter alia in respect of religious functions. 

“It does not require elaboration that Navratri is indeed a festival which is dear to the people of this region and is celebrated with passionate religious fervor. Any event or function to    celebrate such a religious festival could be comprehended within the term ‘religious function’, as appearing in section 37-A of the Act. Permission granted cannot be faulted on the ground that section 37-A of the Act is inapplicable”, the Bench observed.

The Bench further noted that the petitioner has not arrayed Sai Ganesh Welfare Association as a respondent. Allotment having been made in favour of Sai Ganesh Welfare Association, any order of the nature claimed by the petitioner in this petition would have the effect of prejudicing the interest of Sai Ganesh Welfare Association. Non-rejoinder of party is another substantial ground for which this petition ought to fail , held by the Bench.
Finally, the High Court takes judicial notice of the fact that such events/functions are organized all over Mumbai during Navratri. At the same playground, a similar function (which is scheduled to commence from 26th September, 2022) was organized in 2019. For the next two years, no function could be organized due to the pandemic.  
Faria does not dispute that a similar event/function was organized in 2019. The leave that was granted by the order dated 25th April 2019 of the coordinate Bench cannot be availed of at any time in future. It ought to have been availed of in 2019 itself. The petitioner cannot choose to approach the Court at his sweet will in 2022 when all arrangements have been made or are supposed to have been made. The petitioner seems to have targeted only the present event/function of which the respondent no.3 is the organizer. In our considered opinion, singling out one particular event/function out of many smacks of want of bona fide and, therefore, the petition would not deserve any consideration , further observed the Bench.
“The aforesaid reasons are apart from the fact that the petitioner has approached the Court belatedly. The petitioner claims to be a journalist. In the present case, it is claimed that initial announcement with regard to the event/function was made on 26th August 2022 on the media. If indeed such claim is true, we see no reason as to why the petitioner did not approach the Court earlier to 13th September, 2022. We also find that despite the Municipal Corporation having been made a respondent in the petition, a complaint is made by Ms. Mastakar, learned advocate for the Corporation that copy of the petition memo has not been served. Be that as it may, it would be iniquitous and harsh if we were to interdict the event/function, if at all, at such a belated stage’, the order reads.

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