MALABAR HILL CITIZENS FORUM SOCIETY, MUMBAI AND ANOTHER Vs. ASSISTANT MUNICIPAL COMMISSIONER, MUMBAI AND OTHERS

JUDGEMENT

(1.) Our attention was invited on the earlier date i.e. on 12th January, 2018 to the order of the Apex Court dated 8th January, 2018 in Special Leave Petition (Civil) Diary No.39943/2017 by which a request was made to this Court to hear and dispose of Notice of Motion No.405/2017 within a period of ten days. When the Notice of Motion was listed on 12th January, 2018, considering the fact that arguments will have to be canvassed in the Notice of Motion on the merits of the Public Interest Litigation, we were of the view that even the main Public Interest Litigation (PIL) will have to be decided along with the Notice of Motion and, therefore, by a specific order passed on 12th January, 2018, we put the parties to the notice that even the main PIL will be taken up for final hearing along with Notice of Motion. The connected petition being Writ Petition No.1706/2017 also relates to the same property. Only for the purpose of perusal of the documents on record therein that the said writ petition was ordered to be placed along with PIL.

(2.) The subject-matter of the present PIL is the land which is the subject-matter of leave and licence agreements dated 4th July, 1985 and 28th February, 1987 executed by and between the first respondent the Mumbai Municipal Corporation and the first petitioner. With a view to appreciate the controversy, a brief reference to the terms and conditions incorporated in both the agreements will have to be made. As can be seen from the first agreement dated 4th July, 1985, the same is in respect of a garden on the reclaimed land at Nepean Sea Road admeasuring about 65, 000 sq.meters (for short "the said land"). Clause-1 of the said agreement provided that the first respondent shall allot to the licencee (first petitioner) the said land for developing and maintaining the garden. Clause-2 of the said agreement provided that the first petitioner shall not fence the said garden of the height more than two/three feet and the same shall be in accordance with the rules under the Traffic Regulations. The licence fee/ royalty was agreed at Re.1. It was also provided that the first petitioner will pay the first respondentMunicipal Corporation other charges as may be fixed by the Corporation from time to time. Clauses-7 and 8 of the said agreement read thus:

(3.) By a Government Resolution dated 14th April, 1980 (Exh.B to the petition), the said land was transferred to the first respondent-Corporation for being developed as a Maidan (ground), Garden, Green Area and a portion for a Fire Brigade Station. The terms and conditions on which the said land was transferred to the first respondent-Corporation by the State Government have been set out in the Resolution. There are other conditions incorporated in the said Government Resolution. On the basis of the said two agreements, it is the case of the petitioners that the first petitioner has developed a park and sports complex. The park is known as Priyadarshini Park.