Safiya Malik

The High Court of Judicature at Bombay Division Bench of Chief Justice Alok Aradhe and Justice Sandeep V. Marne has dismissed multiple Public Interest Litigations challenging the establishment of the Balasaheb Thackeray Rashtriya Smarak at the site of the Mayor’s Bungalow, Shivaji Park, Dadar, Mumbai. The court held that the decision of the State Government and the Municipal Corporation of Greater Mumbai (MCGM) to set up the memorial fell within the realm of policy and did not warrant judicial interference.

The Bench declined to entertain challenges to the Government Resolution approving the memorial, the amendments to Section 92 of the Mumbai Municipal Corporation Act, the change in land use from Green Zone to Residential Zone, and the composition of the trust overseeing the project. The Court observed that "the decision to choose the site of Mayor’s Bungalow for setting up the Memorial is a well-considered decision, not warranting interference by this Court in exercise of power of judicial review."

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All petitions were dismissed, with the Court affirming that there was no procedural impropriety in any of the impugned actions and that the memorial had been substantially completed, further rendering judicial interference unwarranted.

The public interest litigations were filed challenging various actions by the State of Maharashtra and the MCGM concerning the construction of the Balasaheb Thackeray Rashtriya Smarak at the location of the Mayor’s Bungalow in Shivaji Park, Dadar, Mumbai. The petitions broadly contested the following: (i) the Government Resolution dated 27 September 2016 approving the memorial and establishing a trust; (ii) the amendment to Section 92 of the Mumbai Municipal Corporation Act, 1888 (MMC Act), specifically the insertion of clause (dd-1); (iii) the notice dated 7 September 2017 for changing the reservation of the plot; (iv) the Notification dated 22 January 2019 sanctioning the change in land use; and (v) the Cabinet decision dated 20 December 2018 granting stamp duty exemption to the trust.

A High-Power Committee (HPC) was constituted by the Government of Maharashtra through a Government Resolution dated 4 December 2014. Its mandate included identifying suitable land, generating funds, and recommending actions for the memorial. On 19 May 2015, the HPC recommended the Mayor's Bungalow as the most suitable location from a list of eight sites. It also proposed the formation of a public trust registered under the Maharashtra Public Trusts Act, 1950, and suggested that the land be leased by MCGM to the trust for 30 years at a nominal rent of one rupee per annum.

The site selected for the memorial includes CTS No. 501 and 1495, with a total area of 11,323 sq. mts. and a constructed portion of 1,085.54 sq. mts. A portion measuring 362.85 sq. mts. was already leased to Keralia Mahila Samajam. The HPC noted that the land fell within a Green Zone under Development Control Regulations 1991 (DCR 1991) and was unreserved in the draft Development Control and Promotion Regulation 2034 (DCPR 2034), where it appeared in residential and commercial zones. The site also fell within Coastal Regulation Zone-II (CRZ-II) and could be developed per DCR 1991.

Following the HPC’s recommendations, the Government Resolution dated 27 September 2016 approved the memorial at the Mayor’s Bungalow and the formation of a public trust. To facilitate this, an Ordinance dated 3 January 2017 amended Section 92 of the MMC Act by adding clause (dd-1), empowering the Municipal Commissioner to lease the property to the trust at nominal rent. This was later formalized by the Mumbai Municipal Corporation (Amendment) Act, 2017.

The Municipal Corporation adopted resolutions on 13 January 2017 and 27 February 2017, authorizing the land allocation. Subsequently, the State Government communicated the lease terms, requiring changes in land reservation, and approvals from the Heritage Committee and Maharashtra Coastal Zone Management Authority (MCZMA). A notice under Section 37(1AA) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act), was published on 7 September 2017 proposing to modify the land reservation.

Eighteen objections and suggestions were received, fifteen of which supported the modification. Pankaj Rajmachikar, a petitioner, submitted objections. The Deputy Director of Town Planning submitted a report on 11 December 2017. The final Development Plan-2034 was sanctioned on 8 May 2018, with a corrigendum on 29 June 2018 and final sanction to the land-use change on 22 January 2019, altering the designation from Mayor's Bungalow to Balasaheb Thackeray Smarak and zoning from Green to Residential.

The trust’s composition was approved under the Government Resolution dated 27 September 2016, including politicians and bureaucrats. Construction of the memorial was undertaken by the trust, Balasaheb Thackeray Rashtriya Smarak Samiti.

Petitioners argued the amendment to Section 92 of the MMC Act was arbitrary and challenged the lack of statutory public hearing after the corrigendum dated 29 June 2018. Allegations included that the HPC was influenced by Mr. Subhash Desai, later appointed lifetime Secretary of the trust. The trust was described as dominated by Shiv Sena members and Thackeray family members. Objections were also raised regarding the allocation of Municipal Gymkhana land for a new Mayor’s residence, affecting public amenities.

The State countered that the memorial decision was a policy matter and that procedures under the MRTP Act were properly followed. The change in zoning was duly notified, objections were invited and considered, and the proposal was cleared by planning authorities and the MCZMA. The trust was a public body under the Maharashtra Public Trusts Act, and the lease followed legislative procedure.

The Court noted that "the decision to choose the site of Mayor’s Bungalow for setting up the Memorial is a well-considered decision, not warranting interference by this Court in exercise of power of judicial review." It stated that such matters lie within the realm of policy, and courts "will not and should not substitute its 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."

"When it comes to setting up of memorials for leaders and persons revered for their contribution, it is also well settled that such act constitutes a public purpose and decision of the executive to set up a memorial to commemorate such persons, is a matter of policy of the State."

The Court cited the Supreme Court judgment in Kanaiyalal Maneklal Chinai v. State of Gujarat, which upheld land acquisition for a memorial to Mahatma Gandhi as serving a public purpose.

Regarding the trust, the Court observed, "only three out of the 11 members apparently are members of the Shiv Sena political party and two out of them are actually family members of Late Balasaheb Thackeray... we do not find any arbitrariness in the decision of the State Government to choose three members of Shiv Sena political party and two members of family of late Balasaheb Thackeray to be the part of Board of Governors/Trustees."

It dismissed the argument of arbitrary appointment by stating that remedies exist under the Maharashtra Public Trusts Act for any grievance.

On the amendment to Section 92 of the MMC Act, the Court recorded that the challenge lacked grounds: "In absence of challenge to the legislative competency of the State Legislature to enact the amended provision and on account of failure to establish manifest arbitrariness, we are not inclined to entertain the challenge to the validity of Section 92 (dd-1) of the MMC Act."

The change of land use and zoning was upheld as procedurally compliant. "Suggestions and objections were invited. Another modification effected is to change the zoning of the land from Green Zone to Residential Zone... We are unable to trace any procedural impropriety in effecting such change."

On allegations about loss of public amenity in converting the Gymkhana, the Court noted, "Provision of residence to the Mayor, a first citizen of a city, is also a public purpose."

The Court observed that the heritage structure of the Mayor’s Bungalow had been preserved. "Mr. Khambata has taken us through the photographs of the site, which shows that the grandiose structure of Mayor’s Bungalow has not only been kept intact, but has been restored. Its heritage significance is not disturbed."

Lastly, the Bench noted that "the work of setting up of the Memorial is virtually complete by now" and that further intervention would be unwarranted.

The Court dismissed all the petitions. It stated: "We do not find that any valid ground of challenge is made out in any of the petitions to the decision of the State Government and MCGM in establishing the Memorial. The petitions must fail. They are accordingly dismissed without any order as to costs."

On the challenge to site selection: "We find that the decision to choose the site of Mayor’s Bungalow for setting up the Memorial is a well-considered decision, not warranting interference by this Court in exercise of power of judicial review. We accordingly repel the objections sought to be raised by the Petitioners about selection of site of Mayor’s Bungalow for setting up of the Memorial."

Regarding Section 92 (dd-1): "Petitioners have failed to plead, much less establish, any manifest arbitrariness in enacting Section 92(dd-1) of the MMC Act."

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On the composition of the Trust: "Since the memorial is to honour late Balasaheb Thackeray, we do not find any arbitrariness in the decision of the State Government to choose three members of Shiv Sena political party and two members of family of late Balasaheb Thackeray to be the part of Board of Governors/Trustees."

On the land use change: "The above changes are effected after following due procedure prescribed in the MRTP Act and we are unable to trace any procedural impropriety in effecting such change."

Regarding MCZMA clearance: "Since the MCZMA land at which the Memorial is being set up comes in CRZ-II, the project is cleared by the MCZMA from environment point of view. Therefore, there is no violation of environment norms in setting up the Memorial."

Advocates Representing the Parties:
For the Petitioners: Mr. Sunip Sen, Senior Advocate with Ms. Rujuta Patil and Mr. Yohaan Shah; Dr. Uday Warunjikar; Mr. Santosh Daundkar (Petitioner-in-person)

For the Respondents: Mr. Darius J. Khambata, Senior Advocate with Mr. Joel Carlos; Smt. P.H. Kantharia, Govt. Pleader with Mrs. Jyoti Chavan; Mr. Milind More, Addl. GP; Mr. A.Y. Sakhare, Senior Advocate with Ms. Chaitalee Deochake; Mr. Vishal Kanade

Case Title: Jan Mukti Morcha & Ors. v. State of Maharashtra & Ors.

Neutral Citation: 2025: BHC-OS:9753-DB

Case Number: PIL(L) No. 81 of 2017, PIL No. 40 of 2019, PIL(L) No. 51 of 2017, PIL No. 9 of 2019

Bench: Chief Justice Alok Aradhe and Justice Sandeep V. Marne