PRADEEP BHAGWANRAO KULKARNI v. THE STATE OF MAHARASHTRA THROUGH MINISTRY OFURBAN DEVELOPMENT AND OTHERS
Legal Reasoning
938-PIL-42-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADPUBLIC INTEREST LITIGATION NO. 42 OF 2024PRADEEP BHAGWANRAO KULKARNI VERSUS THE STATE OF MAHARASHTRA THROUGH MINISTRY OFURBAN DEVELOPMENT AND OTHERS .…Mr. Pradeep B. Kulkarni, Party-in-person Ms Neha Kamble, AGP for the Respondent – State Mr. A. P. Bhandari, Advocate for Respondent No.2 Mr. Sachin Deshmukh, Advocate for Respondent No.3 .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE:06.09.2024PER COURT :- 1.We have heard the learned Advocates for therespective sides, for quite some time. The pleadings set out in thisPublic Interest Litigation, give us a feeling that the Petitioner has apersonal interest in this Petition. 2.The Petitioner has put forth prayer clauses (B) and(C), as under:- 1 of 8 (( 2 ))938-PIL-42-2024“(B)By issuing appropriate writ, order or direction, therespondent No.2 be directed not to start food park asmentioned in Tender notice dated 23.02.2024 in the BalasahebThakre Botanical Garden situated in N-8, CIDCO, Aurangabad.(C) By issuing appropriate writ, order or direction, therespondent No.2 be directed not to start any such activity in thepublic garden, park and ground which would pollute theenvironment and release the Hazardous waste.”3.The Petitioner is a practicing Lawyer in this Court. Hishouse is located at Plot No.4, Shivdatta Housing Society, N-8, CIDCO,Chhatrapati Sambhajinagar (Aurangabad), which is said to beabutting the Balasaheb Thakre Botanical Garden, N-8, CIDCO,Chhatrapati Sambhajinagar. This aspect has been suppressed fromthe Court. It was the Municipal Corporation, that has pointed outthat this Public Interest Litigation has the trappings of a personalinterest and that the Petitioner's home is within the area where theBalasasaheb Thakre Botanical Garden is situated. He has certaingrievance against the activity in the said park and, therefore, he haspreferred this Petition, as Party in Person. 2 of 8 (( 3 ))938-PIL-42-20244.We have perused the photographs at page Nos. 27 to 29.On page No.27, an entrance gate is constructed by the MunicipalCorporation and the sign board indicates as ‘Shiv Sena PramukhShriman Balasaheb Thakre Botanical Garden’. There are innumerablemulti-storey buildings inside the gate on both the sides of the walkingpath, which actually is a common path that takes the public at large,deep inside the area where a park is situated. This is visible from thefirst two photographs on page No.27. 5.Much ado has been made by the Petitioner in person andwhich apparently aims to misguide us that the Botanical Gardencommences from the very gate in a street having the banner of ShivSena Pramukh Shriman Balasaheb Thakre. A single glance at boththe pictures would indicate that it is just a protective gate that hasbeen installed abutting the main road and it is only for identificationpurpose that the column and beam structure has been erected whichin Marathi is normally known as, "Kaman". The kiosks which aresought to be made functional, are way out of and away from theactual park/Garden. On page No.28, the kiosk appears to be on theperiphery outside the park. There is a walking track and an open air 3 of 8 (( 4 ))938-PIL-42-2024gym. A shed has been erected next to the open air gym for thepurpose of enabling the residents, who visit the park, to do yoga andexercises. 6.The learned Advocate for the Corporation has tenderedan affidavit in reply along with the colour pictures which are placedat page Nos.55 to 57. It is evident that the kiosks are nearer to theKaman and even beyond these kiosks, there are several multi-storeybuildings deep inside. All these structures are beyond the park.7.The Corporation states in the affidavit-in-reply that theBotanical Garden is adjacent to the Nehru Garden. The garden wasmaintained by the CIDCO Authorities and subsequently, transferred tothe Corporation, which now maintains it. At the entrance of thegated column (Kaman), a path is created in the lane between twocolonies, to take the visitors around 300 to 400 meters inside, towhere the park is actually located. At the entrance which is abuttedby multi-storey buildings on both the sides, a “Khau Galli” has beenstarted and which is far away from the park and nearest to the mainroad on which the Kaman is erected. 4 of 8 (( 5 ))938-PIL-42-20248.The party in person has relied upon the judgmentdelivered by the Hon'ble Supreme Court in M.C. Mehta Vs. KamalNath 1997 (1) SCC 388 and he refers to paragraph 34 and a portionof paragraph 35, which read as under:-“(34) Our legal system based on English Common Lawincludes the public trust doctrine as part of its jurisprudence.The State is the trustee of all natural resources which are bynature meant for public use and enjoyment. Public at large isthe beneficiary of the sea- shore, running waters, airs, forestsand ecologically fragile lands. The State as a trustee is under alegal duty to protect the natural resources. These resourcesmeant for public use cannot be converted into privateownership.(35)WE are fully aware that the issues presented in this caseillustrate the classic struggle between those members of thepublic who would preserve our rivers, forests, parks and openland sin their pristine purity and those charged withadministrative responsibilities who, under the pressures of thechanging needs of an increasing complex society, find itnecessary to encroach to some extent open lands heretoforeconsidered in-violate to change. The resolution of this conflictin any given case is for the legislature and not the courts. …….”9.He has then relied upon the judgment delivered by theHon'ble Supreme Court in M.I. Builders Private Limited Vs. RadheyShyam Sahu and others, AIR 1999 SC 2468. In the said matter, theissue was that the authorities had constructed an undergroundshopping complex in a park. A high power committee was appointed. 5 of 8 (( 6 ))938-PIL-42-2024The decision was placed before the Executive Committee as well asthe general body of the Corporation. Both approved the constructionof an underground shopping complex, though the subject of ashopping complex was not placed on the agenda of their meeting.Taking into account these factors, the Hon'ble Supreme Court referredto M.C. Mehta Vs. Kamal Nath (supra) and observed as under:-“On a consideration of the relevant cases cited at the bar thefollowing propositions may be taken as well-established; State-owned or public-owned property is not to be dealt with at theabsolute discretion of the executive. Certain precepts andprinciples have to be observed. Public interest is theparamount consideration. One of the methods of securing thepublic interest, when it is considered necessary to dispose of aproperty, is to sell the property by public auction or by invitingtenders. Though that is the ordinary rule, it is not an invariablerule. There may be situations where there are compellingreasons necessitating departure from the rule but then thereasons for the departure must be rational and should not besuggestive of discrimination. Appearance of public justice is asimportant as doing justice. Nothing should be done whichgives an appearance of bias, jobbery or nepotism.”10.There can be no debate as regards the prohibition onsetting up of a shopping complex or a commercial complex inside apark or a water body. As like in the case of M.I. Builders (supra), ashopping mall being constructed below the park by digging the underground area, has been deprecated. 6 of 8 (( 7 ))938-PIL-42-202411.In the case before us, a protective gate has been erectedat the entrance of the N-8 area, abutting the main road. As oneenters from the said main gate, there are multi-storey buildings andcolonies, on both the sides, that have been settled since decades. Thelane/path between the two colonies and the multi-storey buildings, isconverted into a walking path and paver blocks have been laid. Thiswalking path is actually an entrance to the park which is more than400 meters inside and with multi-storey buildings on both the sides.The Petitioner's (party in person) house is also located in one of thesaid colonies. The kiosks are right at the main gate, which is morecloser to the main road and far away from the park. 12.In the light of these facts, we do not find any reason toentertain this Public Interest Litigation. When residents are residingin multi-storey buildings in colonies adjacent to the area for decades,having legally erected their constructions, these kiosks which are rightat the entrance of the main gate would apparently not pose anythreat, much less, release ‘hazardous waste’ as is claimed by thePetitioner. Nevertheless, if in future, the Petitioner notices that insidethe actual area of the park, if a botanical garden is set up and if there 7 of 8
Decision
(( 8 ))938-PIL-42-2024are any commercial activities in future in the heart of the BotanicalGarden, the Petitioner would be at liberty to point out such instances. 13.In view of the above, this P I L Petition is disposed off. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 8 of 8