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Judgment
Anoop V. Mohta, J.—Rule, returnable forthwith.
Heard finally, by consent of the parties.
The Petitioners have invoked Article 226 of the Constitution of India and prayed as under:-
a) That this Hon''ble Court may be pleased to issue a writ of Certiorari, or a writ, order or direction in the nature of Certiorari setting aside and quashing the allotment letter dated 06.02.2003, agreement dated 08.08.2003 and agreement dated 11.06.2012 marked as Exhibit D, F and L and agreement dated 8.1.2014 annexed at Exhibit T-1;
b) That this Hon''ble Court may be pleased to issue a writ of Mandamus, or a writ, order or direction in the nature of Mandamus directing the Respondent Municipal Corporation to take back possession of the said plot alongwith the constructions from Respondent No. 1;
c) That appropriate actions be directed as against Respondent No. 4 and also the officers of Respondent No. 2 and Respondent No. 3 who are found guilty of manipulation, arbitrariness and violation of laws and Constitution;
d) That the possession of the land admeasuring approximately 42290.60 sq. meters bearing CTS No. 128-A/59/1 at Mahavir Nagar, Kandiwali (W) be restored back to the Respondent No. 2;
e) That Respondent No. 2 be directed to manage and operate the land admeasuring approximately 42290.60 sq. meters bearing CTS No. 128-A/59/1 at Mahavir Nagar, Kandiwali (W);
f) That the land admeasuring approximately 42290.60 sq. meters bearing CTS No. 128-A/59/1 at Mahavir Nagar, Kandiwali (W) be directed to be kept open for the public at all times;
Petitioner No. 1 is a registered political party registered with the Election Commission of India. Petitioner Nos. 2 to 9 are the members of Petitioner No. 1 and are working on various social issues as person and as representatives of Petitioner No. 1. Petitioner Nos. 2 to 9 are resident of Mumbai, are aware of the sports activities of Respondent No. 1.
Respondent No. 1-the Mumbai Cricket Association ("MCA"), is a registered Public Charitable Trust and is well-known governing body for the game of cricket in Mumbai and Thane Regions. MCA comprises of over 350 Cricket Clubs operating in Mumbai and Thane. The only activity of MCA is promotion and regulation of the game of cricket. MCA is a non-profit organization. MCA has been filing and continues to file its Income Tax returns as a non-profit organization. The issue regarding Income tax exemption is sub-judice.
Respondent No. 2 is a Municipal Corporation of Greater Mumbai, ("MCGM") a statutory body formed under the Mumbai Municipal Corporation Act, 1888. Respondent No. 3 is the State of Maharashtra (The State).
To decide the issues so raised, it is relevant to note the basic events and the backgrounds, which are as under:-
The plot in question reserved by MCGM for the playground (The playground) (PG) admeasuring approximately 42290.60 sq. meters bearing CTS No. 128-A/59/1 at Mahavir Nagar, Kandiwali (W), Mumbai ("the plot"). The details of the plot and the permissions BUA are as under:-
1 Plot area as per handed over to MCA : 399950.60 sq. m.
2 33% area allowed for development for club : 13183.70 sq. m.
3 67% area open for playground : 26766.90 sq. m.
4 Permissible B.U.A. Of Club house : 5992.59 sq. m.
5 Permissible Ground Floor area : 3995.06 sq. m.
6 Permissible 1st Floor area : 1997.53 sq. m.
As per the approved plan the plinth area is 3885.82 sq. m. i.e. 9.73% of the plot area. As per approved plan the built up area proposed is 5883.04 sq. m. i.e. 14.73% of the plot area.
On 9 May 2000, a policy guidelines for allowing development of land were framed vide CR No. 154 of 2000 and approved by MCGM. On 15 May 2000, the State Government stayed order dated 9 May 2000.
On 5 February 2003, MCA addressed a letter to MCGM for allotment of the plot for development and maintenance of the plot, as there was a shortage of cricket grounds in the suburbs and it was necessary to organize coaching classes of cricket for the youngsters. On 6 February 2003, a letter issued by the Assistant Commissioner that the plot had been inspected and it could be considered for allotment to MCA. On 3 March 2003, the office of Superintendent of Garden, MCGM issued a letter dated 10 February 2003 to MCA stating that the Additional Municipal Commissioner has sanctioned the allotment of land on adoption basis for a period of 5 years.
On 8 August 2003, an agreement was executed between MCA and MCGM for allotting the plot for beautification, maintenance and management on adoption basis. On 6 October 2003, MCA requested MCGM to allow them to a develop cricket academy cum sports recreation complex on the plot. On 9 March 2004, the proposal was issued by the Superintendent of Gardens to the Improvement Committee for the allotment without inviting any applications. On 20 January 2005, MCGM passed resolution No. 1045 to allot the plot on care-taker basis to MCA, pending preparation of fresh guidelines and sanction for the same by MCGM. On 9 February 2005, MCGM intimated MCA that by resolution dated 20 January 2005, they have accorded their proposal to permit MCA to develop the plots for the purpose of creating an academy, sports cum recreation complex on "care-taker" basis.
On 2 August 2005, M/s. Shashi Prabhu & Associates submitted a proposal which was forwarded with a detailed note by the Executive Engineer. On 1 September 2005, the Executive Engineer accepted the proposal for the proposed Cricket Academy/Sport-Cum-Recreation Complex comprising of Basement+Ground+1 upper floor and the approval for various proposal was obtained. On 29 December 2005, the plans for the complex were approved. On 10 August 2006, MCGM issued Commencement Certificate in favour of MCA for development. On 18 October 2006, MCGM formulated fresh guidelines for allotment of Municipal Plots reserved for the Recreation Ground (RG)/Play Ground (PG) for development, maintenance and management. On 9 February 2007, a letter of acceptance to MCA was issued for incorporating terms and conditions as per the policy guidelines into the sanction. On 28 August 2010, the approval was granted for care-taker agreement with MCA.
On 11 June 2012 and 2 July 2012, MCA also paid Rs. 13,200/- as legal charges and Rs. 1,94,20,478/- as lease rent. On 11 June 2012, MCA executed an agreement with MCGM. On 20 June 2013, MCA requested for grant of an occupation certificate citing that the work had been completed. On 26 June 2013, the occupation certificate sought by MCA''s letter dated 20 June 2013 was denied by MCGM. On 11 July 2013, the Petitioners submitted a letter along with signatures of 1500 people protesting the conversion of playground into a club. On 30 August 2013, the occupation certificate was issued. On 9 December 2013, MCGM took over the land after a joint inventory, free of cost and free of encumbrance, from MCA and the amount spent on the development of the play-ground was to be treated as donation to MCGM. On 8 January 2014, an agreement was executed between MCA and MCGM in accordance whereof the recreation complex was handed over once again to MCA for maintaining the same on "care-taker" basis.
There is no issue that the play-ground bearing CTS No. 128-A/59/1 along with the structure so constructed thereon, after due permissions and subject to requisite sanctions, is owned by MCGM and based upon an agreement dated 8 January 2014, MCA is only a "caretaker" for all the purposes. MCA is under obligation to comply with the terms and conditions therein. There is no issue in connection with the 350 club members of MCA. Those club members inter-alia are clubs of the area covering Mumbai, Navi Mumbai and Thane District.
It is relevant to note the decision taken by the Improvement Committee on 9 March 2004 referring to the subject "Proposed Cricket Academy/Sports-cum-Recreation Complex on the plot in question" The relevant paragraphs reads as under:-
"8. Mumbai Cricket Association has agreed to abide by all the conditions that may be stipulated in the guide-lines being formulated for allotment of plots on care taker basis. Hence, if the request of the organization for permitting the proposed development on the plot under reference is to be acceded to, pending approval of Corporation for the guide-lines, we may be deviating only from the procedure of allotment i.e. allotting the plots by making public advertisement. M.C.A. is most authoritative organization for developing the cricket pitches and promoting cricket in Mumbai and considering the fact that there are hardly any cricket pitches in suburbs and cricket is the most popular game, the proposal of M.C.A. to hand over the playground (P.G.) plot to them for development for the purpose of Cricket Academy/Sports-cum-Recreational Complex on caretaker basis deserves to be considered favourably.
Before handing over the plot to M.C.A. for construction registered undertaking and/or an agreement shall be got executed from them agreeing to comply with all the conditions stipulated in the guide-lines that may be approved by the Corporation in due course."
"10. As the aforesaid permission is proposed to be granted without undergoing the process of inviting applications from eligible organizations through public advertisement for the reasons stated above and pending approval of fresh guide-lines by improvements committee/Corporation, I see the approval of Improvements Committee/Corporation for granting permission to Mumbai Cricket Association (M.C.A.) as proposed in para 9."
This decision was further even approved by MCGM on 20 January 2005 by a resolution confirming the allotment of the plot to MCA on care-taker basis, pending the preparation of fresh guidelines. Further in the year 2003 when the play-ground in question was allotted for development and maintenance, no other applicants and/or person came forward. By following a due procedure of inviting others, MCGM granted application of MCA on 5 February 2003, and therefore, while allotting the plot, as there was no policy, MCGM allotted the land/play-ground to MCA for 5 years. Pending the policy, the decision so taken, considering the need and the application so made for development by MCA for the cricket academy, we see there was no illegality committed at that time.
The revised policy guidelines dated 22 February 2005/w.e.f. 2 December 2006 for allowing development of lands reserved for the public purpose, including Recreation Ground-RG and Playground-PG, Park, Garden etc. with Annexure brought into force. The fact of allotment on adoption basis has been endorsed. It is specifically mentioned that, "the allotment procedure mentioned in the policy guidelines shall be waived in respect of 10 organizations to whom such plots have already been allotted on caretaker basis in the past. However, the aforesaid policy guidelines, shall be made applicable to those organizations". We are inclined to observe that there is no breach of any clause and/or conditions and/or provisions of law in allotting "playground" as, even after allotment/development the elements of playground subject to certain additional facilities, still exist and are maintained.
MCA, as recorded above, prior to this date had executed the agreement for adoption, for 5 years, as no one participated, inspite of invitation, except MCA. Therefore, the allegation of not following the procedure for allotment as per the guidelines cannot be the reason, as sought to be contended by the Petitioners, to interfere with the decisions so taken, based upon the agreement of 2003. Further, the agreement of care-taker in question, based upon the unchallenged guidelines/policy, is acceptable. In the present case, we are not inclined to accept the case and submission of the Petitioners that no fair and transparent procedure was followed while allotting the playground. No case is made out to interfere with these two agreements, at the instance of the Petitioners. The care-taker agreement of 2014, is based upon the guidelines. All the clauses, have been incorporated. This binds both the Respondents.
Part IV-A (annexure) provides for development of plots reserved for RG/PG in possession of owners. As per the guidelines, which provide/permit MCA to construct the structures, pavilion, gymnasium, club houses and other structures for the purpose of sports, recreational activities and Swimming Pool etc.. By taking note of the same, MCA constructed and developed the plot based upon the due and valid sanctions and permissions. There is no issue with regard to the valid construction/development. There is no bar, whatsoever created and/or referred, to develop the plot/play-ground through a third person. On the contrary, it was permissible and through the assistance and the help of B.G. Shirke Construction Technology Private Limited, the complex and the development activities have been completed. MCA through their agency, now has been maintaining the complex and playground and taking all necessary steps. The judgment of Shri Girish Vyas and Another Vs. The State of Maharastra and Others, referred by the learned counsel appearing for the Petitioners, therefore, no way of any assistance to the Petitioners to interfere with the complex, as well as, the grounds so developed by MCA, based upon the valid permissions. The facts and circumstances are totally different. During the course of the argument, there was no case made out to demolish such development/construction.
The ultimate prayer and the submission is to open this playground for all the people at large for all the time. This submission itself, therefore, has curtailed the earlier prayers so made by the Petitioners to quash and set aside the impugned agreements, including all actions arising out of the same. Both the contesting parties, even otherwise, are bound by the conditions so put in and so mentioned in the guidelines, which take care of interest of people at large. The relevant clauses are reproduced as under:-
Part-IV (D)
Guidelines for allotting Municipal plots reserved for R.G./P.G. admeasuring area more than 15000 sq. mts. To be developed/maintained/managed by private organisations/corporate bodies on caretaker basis:-
A) .....
B) On selection of the organizations/Corporate Bodies, the plot shall be handed over to them for constructing the amenities for the designated purpose subject to the following guidelines/conditions.
i) Structures for Pavilions, Gymnasiums, Club Houses, other recreational and sports activities and swimming pool shall only be permitted on a portion of land having an area of not more than 25% of the total plot area at a suitable location.
ii) Not less than 75% of the plot area shall be kept open and developed for the designated purpose and this area shall be made available for the unrestricted but disciplined (i.e. restricted hours of entry) use of the public. The plan for development of Garden, P.G. etc. with in this 75% plot area, which is to be kept open for public, shall be got approved from S.G. In respect of landscaping and horticulture.
iii) The built up area of the permissible structure shall not be more than 15% of 75% of the total plot area restricting plinth area to 10% of 75% of the total plot area. The total area of Cafeteria/restaurant/dining hall etc. if proposed in any club house bldg. Shall not exceed 15% of the permissible BUA subject to a maximum of 250 Sq. mt. The area of Conference Hall/Sport hall etc. if proposed in the club house bldg. Shall not exceed 25% of the permissible BUA subject to a maximum of 400 Sq. mt. In any case the area in any club house bldg. for non sports activities shall not exceed 40% of the permissible BUA.
iv) Plans for development shall be got approved from Building Proposal Deptt.
v) Construction shall conform to D.C. Regulations 1991, as modified upto date and other rules and policies in force for which prior approval of concerned E.E.B.P. shall be obtained.
C) On construction of the amenities, Organisations/Corporate Bodies shall hand over the same to M.C.G.M. free of cost and encumbrances.
D, E, F) ........
G) The entire area of the amenities shall be used for the specific purpose for which it is allotted and shall not be used for any other activities. The open land may be allowed for other public functions without disturbing main activity subject to any directives of the court and in accordance with provisions of M.R.T.P. Act 1966 & Town Planning Act and subject to any conditions as may be stipulated by the M.C. And subject to payment of charges as may be fixed by M.C.
H) The plots reserved for P.G. shall be governed by provisions of Section 37A of MR & TP Act and the organisation/Corporate body shall strictly adhere to the above provisions while permitting the use of the plot/Built up premises for any functions organised on the occasions of Independence Day, Republic day, Maharashtra day and similar National events, and the Jayanties or Punyatithies of National Leaders and religious functions gathering organised on religious functions on terms and conditions as specified by Municipal Commissioner, for a period not exceeding 12 days at a time and in any case not exceeding 30 days in the aggregate in a calender year. The religious functions could include marriage function. However, no political function will be permitted.
I) In case any public amenity is to be provided in the 75% area kept open to public, at a later date, then the balance 25% of 15% of total plot area shall be constructed by the Organisation at their cost and also maintained as a public amenity during the licence period at their cost.
The fact of earlier allotment of play-ground to MCA for 5 years was definitely a relevant factor, specifically when MCGM have also approved and accepted the case of MCA for permitting them to develop the cricket academy on the play-ground. On 9 February 2007, a letter of acceptance to MCA was issued for incorporating terms and conditions as per the policy. On 28 August 2010, the approval was granted to the care-taker agreement with MCA. The necessary formalities were completed around June/July 2012 and an agreement was executed by and between MCA and MCGM, on 11 June 2014. MCA accordingly proceeded further. The development of cricket academy therefore, is well within the knowledge of everybody concerned, including the Petitioners, who are resident of India. As the work was completed, on 26 June 2013, MCA asked for occupation certificate and ultimately on 30 August 2013, the occupation certificate was granted. On 9 December 2013, subject to agreement, as recorded above, MCGM took over the land after joint inventory, free of cost and free of encumbrances, from MCA and the amount spent on development has been treated as donation to MCGM. Therefore, the fact of ownership of all the land of the play-ground and the premises on it, is of MCGM. There is nothing to accept the challenge of the construction and the development on the plot in question. All the activities in the premises are therefore, based upon the respective permission and licenses.
Agreement dated 11 June 2012, further reiterated the State Government''s stand referring to letter dated 25 February 2010, that the stay granted to the letter/policy approved by the Improvement Committee/Corporation does not apply to the playground plot allotted in favour of the party on adoption basis and subsequently converted into "care-taker basis". This definitely refers to the agreement of 2003 executed between Respondent Nos. 1 and 2 on 8 August 2003. The parties therefore, agreed and executed this agreement also. Clause 19 of the conditions is also relevant whereby, any social, commercial, political and/or any religious programmes or meetings, marriages, reception, gathering, funfair, etc. to be restricted. MCA, based upon the same, constructed/developed the complex and handed over the said playground plot to MCGM. Thereafter, the agreement of caretaker was executed and MCA has been using and utilizing the complex and playground and has been in exclusive possession since then, certainly not as the owner of the property. But, there is no bar to create and/or add members, including the club members and collect fees/amount to maintain the ground and complex in question. The object of no loss and no profit basis, in no way read to mean that, MCA is debarred from collecting membership fee and/or other amount in accordance with law, subject to maintenance of account to incur the requisite expenses and maintenance charges for the playground and complex, including the relevant staffs, electricity, water supply and all other requisite and essential things for providing and continuing the facilities as required.
Ultimately, an agreement has been executed on 8 January 2014 between MCA and MCGM, in accordance thereof the recreation complex has been handed over once again to MCA for maintaining the same on care-taker basis.
The Petitioners basic submissions are revolving around the allotment of land on adoption basis and later on care-taker basis was illegal, improper and unfair; the transfer of plot for construction purpose to B.G. Shirke Construction Technology Private Limited is illegal, and a malafide action of MCA and MCGM. The learned counsel appearing for the Petitioners has relied upon the following judgments, wherein it is observed that:-
(a) Centre for Public Interest Litigation and Others Vs. Union of India (UOI) and Others,
......This Court has repeatedly held that whenever, a contract is to be awarded or a license is to be given, the public authority must adopt a transparent and fair method for making selections to that all eligible persons get a fair opportunity of competition."
(b) Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and Others,
"67. ......The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organizations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot a land at a fixed price but in that case also the allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution."
The learned counsel appearing for the Petitioners also read and referred the following Judgments:-
a) Natural Resources Allocation, in Re, Special Reference No. 1 of 2012 (2012) 10 SCC 1
b) Manohar Joshi (Supra)
c) Royal Orchid Hotels Limited and Another Vs. G. Jayarama Reddy and Others,
d) Bonbehari V. Nimbkar and others Vs. State of Maharashtra and others,
e) Vijay Krishna Kumbhar Vs. Collector and Others,
The learned Senior Counsel appearing for Respondent No. 1, relied on the Judgment of this Court. Society for Promotion of Equality, Awareness and Rights ("SPEAR") Vs. The National Sports Club of India and Others, The learned Senior Counsel appearing for Respondent No. 1 and 2 also read and referred Judgment of Natural Resources Allocation, in Re, Special Reference No. 1 of 2012 (Supra) in support of their case.
Taking overall view of the matter and in view of above, even if considering the rival submissions so raised by the learned counsel appearing for the Petitioners, we see there is no illegality even in execution of this agreement, specifically in the facts and circumstances and the background so referred above. The submission that the selection process and the methodology so adopted by MCGM while selecting and/or allotting the plot and now handing over the whole complex on care-taker basis, is in breach of basic principle as laid down in various Supreme Court Judgments, as it is nothing but amounts to creation of rights without following due procedure, on the play-ground, is unacceptable.
Both the learned counsel have placed reliance on Natural Resources Allocation, in Re, Special Reference No. 1 of 2012 (Supra). In this matter, the Supreme Court has referred and dealt with the various other aspects of awarding the tender/contracts and observed as under:-
"107. .....The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of India."
"109. Secondly, a constitutional mandate is an absolute principle that has to be applied in all situations; it cannot be applied in some and not tested in others. The absolute principle is then applied on a case by case basis to see which actions fulfill the requirements of the constitutional principle and which do not."
"129 Hence, it is manifest that there is no constitutional mandate in favour of auction under Article 14. The Government has repeatedly deviated from the course of auction and this Court has repeatedly upheld such actions. The judiciary tests such deviations on the limited scope of arbitrariness and fairness under Article 14 and its role is limited to that extent. Essentially whenever the object of policy is anything but revenue maximization, the Executive is seen to adopt methods other than auction."
"131 Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of an industry, like in Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, , discussed above. However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criteria for alienation of all natural resources."
"150 In conclusion, our answer to the first set of five questions is that auctions are not the only permissible method for disposal of all natural resources across all sectors and in all circumstances."
One thing is very clear that, even after referring to the judgments so referred above, that auction and/or related procedure in every matter is not the mandate. It all depends upon the facts and circumstances of each case. The State''s power to negotiate with the private enterprises and/or private parties, considering the situation and the background, just cannot be overlooked. All such action of State, merely because there was no specific auction held, cannot be stated to be bad in law. In view of the background so recorded above and the typical situation so referred in the matter, we see there is no case made out to interfere with the decision so taken to allot initially play-ground and now by permitting MCA by executing specific agreement on certain condition to run the complex as "Care-taker".
MCGM, on the request of MCA, referring to the then existing policy, handed over the possession of play-ground to MCA for organizing training/coaching classes for the cricket for the youngsters of Mumbai, New Mumbai and Thane Districts, with intent to promote, organize/manage the game of cricket, specifically in suburban, area after due deliberation and approval and correspondences, entered into an agreement for maintenance and management of PG (Play-ground) as no other associations came forward though invited on adoption basis, on 8 August 2003. The clause to keep the play-ground open for the general people irrespective of caste, creed, colour, religion and/or sex, prescribed by MCGM. It was also permitted to put gates and timing boards at appropriate places and size. The possession was accordingly handed over/taken. MCA accordingly started maintaining the same.
The issue of new policy guidelines was pending with the Government in this regard, still to act fairly and in transparent manner after inviting the offers from the various registered trust for beautification and maintenance and management, as no one turned up and ultimately, entered into the agreement with MCA. The Agreement of adoption preamble reads as under:-
"Have invited the offers from the various Registered Trust for taking P.G. Plot for beautification, maintenance and management on adoption initially for one year from 22nd April 2003 to 21 April 2008 and not exceeding five years". This agreement shows that the basic formalities were completed by MCGM before allotting the plot to MCA. The Petitioners, by a simple denial, who have no personal knowledge of those observations and facts, referring to some observations in subsequent correspondences, without supporting by any contra material, unable to dislodge the case of fair and transparent selective process so adopted. There is nothing illegal in following such procedure, specifically when the application was with specific purpose to develop the cricket game and all related aspects for the people at large. MCA was in possession and maintaining the same as the contract was for the 5 years. The change of policy and the decision so taken pending the same, could not have been utilized by overlooking the agreement of 2003 with MCA and the existence of actual physical possession and development by MCA. Ultimately, MCGM, pending the adoption agreement of 5 years, firstly, through the Improvement Committee taken the decision and ultimately MCGM has accepted the said proposal and confirmed to promote the cricket academy and sports-cum-recreation club.
The objection that no procedure was followed of inviting applications from eligible organizations, through public advertisement as recorded in Improvement Committee''s resolution dated 9 March 2004, cannot be read in isolation without referring to the events starting from the grant of allotment of the play-ground to MCA on adoption basis. It is difficult to dissect those material evidence to read and to accept the contention that due procedure was not followed of inviting the applications. After going through the averments so made and the findings so recorded in the correspondences and the reasons behind accepting the proposal for cricket academy by MCGM, in view of para 8 so recorded above, just cannot be overlooked, specifically to the well-known and highest cricket body in Maharashtra (MCA), and also as there was no application and/or competitors, at any point of time, offers and/or objected and even intended to develop such academy. We see no fault or default of MCGM in permitting MCA to start cricket academy on certain terms and conditions being otherwise eligible associations on "care-taker" basis.
The last agreement dated 8 January 2014 entered into between the parties further shows that MCGM and MCA have taken care and interest of people at large and so also the interest of development of the cricket game in the academy of cricket. They have acknowledged the ownership of the constructed complex and the playground of MCGM, apart from the obligation to management and maintenance of the amenities in all aspects, which is always subject to maintaining of accounts. The interest of people, as well as, MCGM employees have been taken care of.
The basic clauses, covering the interest of the people at large, are as under:-
"8. The party of the Second Part shall maintain the entire area of the reservation including the portion which is to be kept for the unrestricted but disciplined use of public as per the requirements of the M.C. and shall bear the cost of the Management and maintenance of the said amenities. The Party of the First Part shall not be liable for management and maintenance of the said amenities. They shall display a big board at a prominent place with littering not less than 6'' in height mentioning the facilities provided to the Citizens by the Party of the First Part."
"12. The Party of the Second Part shall keep open the amenities for General Public irrespective of caste, creed, colour, religion or sex as may be decided by the Party of the First Part from time to time."
"31. The Party of the Second Part shall permanently display a board at a prominent place, showing the R.G./P.G. area available for the unrestricted but disciplined use of the public and the hours of entry etc. as also various schemes available to general public as per the proposal."
"32. The Party of the Second Part shall make the facilities available for various activities to municipal schools in the locality free of cost for a maximum of 15 days in a year."
"37. Municipal Councillor will be given membership of any open club in Mumbai on Municipal lands only during their tenure of Councillorship."
"40. The plots reserved for P.G. shall be governed by provisions of Section 37(A) of M.R. & T.P. Act and the Party of the Second Part shall strictly adhere to the above provisions while permitting the use of the Plot/built-up premises for any functions organized on the occasions of Independence Day, Republic Day, Maharashtra Day and similar national Events, and the Jayanties or Punyatithies of National Leaders and religious functions gathering organized on religious functions on terms and conditions as specified by Municipal Commissioner, for a period not exceeding 12 days at a time and in any case not exceeding 30 days in the aggregate, in a calender year. The religious functions could include marriage function. However, no political function will be permitted."
"41. In case any public amenity is to be provided in the 75% area kept open to public, at a later date, then the same shall be constructed by the Party of the Second Part at their cost and also maintained as a public amenity during the licence period at their cost."
We are inclined to observe that MCA is under obligation to comply with the conditions so incorporated by MCGM, including permitting the members of public, non-members to use the playground but in disciplined manner, subject to taking care of protection of the pitches so constructed and so also the surrounding area of the pitches, as the same is necessary also to maintain the ground, as well as, the game of cricket and specifically it goes to the national and/or international stage, including the regular and respective training for the same. Therefore, subject to disciplined timing and requisite security, though it is difficult to accept the case of the Petitioners, to keep this play ground open to all public at large all the time, the non-members or people at large need to be permitted to use and utilize the play-ground for cricket.
The submission that such restriction only for cricket, in no way stated to be a policy decision is also not acceptable for simple reason and basically in the background that the basic purpose of the plot as announced remained intact i.e. RG play ground. The restriction so put, even if any, and when it is for the cricket academy, we see no fault can be found in this approached policy, as nothing wrong to grant and/or allot such plot for specific game and/or sports. This mechanism is in no way stated to be foreign and/or illegal in any way. MCGM, being the owner, considering the background, if have taken decision by passing resolution, in no way can be stated to be bad in law for, to interfere with, at the instance of the Petitioners at such belated stage.
It is relevant to note that the requirement of game of cricket, which includes requisite playground and duly constructed/developed pitch/pitches and regular maintenance of the same. For any academy and basically for such cricket practice and training, the requisite permanent facilities are required for day to day matches, including the arrangement for good foods, beverages and drinks etc. for national and international matches. The requisite and necessary arrangement for the same is therefore, cannot be objected by any one. For day and night matches and even otherwise, for other general matches the requisite rest room, toilet and other facilities are also essential part, not only for the players but, for other players, coaches, officers and the officials. Therefore, the provisions to grant such permission, in no way can be stated to be contrary to any policy guidelines and/or law having once taken decision and agreed for the same to permit MCA initially on adoption, and later on caretaker basis, to use and utilize the Complex and playground for development of cricket, it is well within the framework of law and the record. MCA, a recorded above, came forward to develop and maintain the playground for cricket purpose being sound financial position agreed to develop the amenities and requisite complex. MCGM therefore, taking note of this also permitted MCA to continue and to develop the complex for the cricket on the condition so referred in the guidelines, which covers the permission to develop the structure.
The allotment was of the year 2003. The construction commenced since 2005. The Completion Certificate is dated 10 August 2006. The Occupation Certificate is dated 30 August 2013. On 9 December 2013, MCGM took the land after joint inventory. Lastly, on 8 January 2014, the agreement in question executed between MCA and MCGM. The Petitioners have filed this Petition on 27 July 2013, and now listed for final hearing. The Petitioners'' absence of any personal knowledge of allegation, conduct and the background of litigation are also relevant factors, when it comes to the question of interference under Article 226 of the Constitution of India, though it is a Public Interest Litigation. We come to a conclusion that there is no illegality, which is of such nature to declare the whole action taken by MCGM illegal and contrary to the provisions of Section 92(dd) of MMC Act and/or Rule 9(h) of the Development Control Rules, specifically when the ownership and the control of the Play-ground, subject to conditions, are with MCGM.
There is no question of accepting the case of the Petitioners that MCGM acted arbitrarily/discriminately and/or misused their powers and entered into such agreement, favouring only MCA, having noted that after due consideration and deliberation, and considering the need and requirement to develop the cricket academy in the suburban areas and as MCA, as noted already, being well-known and recognized Cricket Association decided to grant/allot the plot for such academy. This in no way can be stated to be misuse of powers and/or treating equal unequally. There was no applications, as stated, by any other cricket associations moved and made for the plot. On the contrary, as recorded even for the maintenance, no other Associations came forward, except MCA in the year 2003. The development, therefore, of the property/plot/playground to support the game of cricket and for that acceptance of proposal of MCA, in our view, is well within their power and authority. There is nothing contrary to the law and/or any declared policy, specifically when the policy itself is never under challenge by the Petitioners or any other.
The cricket is a game of all and played by all. The requisite play-ground is also in demand by all. The balance needs to be struck. Sport is played not only in making it as a career but it is conducive to general well being as well. Participating in sports promotes healthy life style, encourages various character building values. In city of Mumbai there is a chronic shortage of playgrounds. Recognizing these facets, MCGM has rightly insisted on a condition that the playground should be kept open, albeit, in a disciplined manner, to general public. This stipulation is rooted in public interest and, to our mind, is the most important term of the agreement. It is this term that balances the equities of the case.
As MCGM has acted in public interest to give the playground to MCA on caretaker basis, MCGM is under obligation to see that the condition regarding playground to be kept open to general public is strictly adhered to, as this condition is also in public interest. When confronted with the statement made by MCA in the affidavit in reply that, only a ''part'' of the ground will be kept open to public, the learned senior counsel for MCGM categorically submitted that MCGM does not accept this stand and will insist that the playground as provided in the agreement, in a disciplined manner, is kept open to general public. We accept this statement. The learned Senior Counsel for MCA also reiterated the commitment to abide by the conditions of the agreement. We accept this statement too.
Therefore, considering the overall view of the matter, we are inclined to dismiss the Public Interest Litigation/Petition. However, it is made clear that MCA is under obligation to comply with all the conditions so put in by MCGM.
Resultantly, the following order:-
ORDER
a) The Public Interest Petition is dismissed.
b) Rule stands discharged accordingly.
c) There shall be no order as to costs.