JAMSHED KANGA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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 ).

(2.) 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 nongovernment, 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 cooperative 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.

(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.