Bombay High Court Declines To Interfere With Site Chosen For Balasaheb Thackeray Memorial, Says It Falls Outside Scope Of Judicial Review
The Bombay High Court has dismissed a batch of Public Interest Litigations challenging the decision to establish the Balasaheb Thackeray Rashtriya Smarak at the site of the Mayor's Bungalow in Shivaji Park, Dadar. The Court held that the choice of site, formation of the managing trust, and other consequential actions were well within the State's policy domain and followed due process.
The Division Bench of Chief Justice Alok Aradhe and Justice Sandeep V. Marne delivered its verdict in four PILs filed opposing the State Government's decisions and statutory amendments enabling the memorial's construction.
The petitioners argued that the change of use of Mayor's Bungalow has been effected in gross violation of the provisions of the MRTP Act. They contended that the notification dated 22 January 2019 illegally effected zoning of the land from 'Green Zone' to 'Residential Zone' without prior public notification or consultation.
Rejecting these contentions, the Court held that the choice made by the State Government, with the approval of the landowner (MCGM), to set up the Memorial at Mayor's Bungalow falls in the realm of policy, in which the Court would be loath to interfere.
“Once the Petitioners do not dispute that a memorial to honour late Balasaheb Thackeray deserves to be set up, the choice of site made by the State Government and MCGM for setting up of the Memorial is something which would fall outside the scope of judicial review by this Court,” the Court observed.
The Court remarked that matters of policy must be left to the Governments. Courts will not and should not substitute their own judgment for the judgment of the executive in such matters, unless it is noticed that the decision of the executive infringes a fundamental right.
The Court found that the process of amending the Development Plan and changing land use from Green Zone to Residential Zone was procedurally valid and followed all requirements under the MRTP Act. It also ruled that the amendment to the MMC Act enabling a nominal rent lease was within legislative competence and not manifestly arbitrary.
On the objection to the statutory amendment, the court observed that the petitioners have failed to plead, much less establish, any manifest arbitrariness in enacting Section 92(dd-1) of the Mumbai Municipal Corporation Act. On the issue of change of reservation of the plot of land in question, the court observed “mere change in designation of a plot does not alter the character of Development Plan and therefore does not amount to a change in the Development Plan”.
On the composition of the Trust, the Court noted that, considering the purpose of the trust, there is no arbitrariness in including three out of the 11 members of the Shiv Sena political party.
Accordingly, all PILs were dismissed.
Case Title: Jan Mukti Morcha & Ors. v. State of Maharashtra & Ors. [PIL (L) No. 81 of 2017, PIL No. 40 of 2019, PIL (L) No. 51 of 2017, PIL No. 9 of 2019]