HC accepts Maharashtra AG’s Statement, Keeps Racecourse-Theme Park Petitions in abeyance

The Bombay High Court on Thursday said it will “not do our advocate general the discourtesy of disregarding” his statement that no decision has been taken on building a 120-acre theme park at Mahalaxmi Racecourse in south Mumbai.

The HC is hearing petitions filed by some persons claiming to be environmentalists against what they say is an “arbitrary, capricious and patently illegal” decision taken by the Maharashtra government in a meeting on December 6, 2023 to build a theme park on the racecourse land.

The petitioners have claimed the meeting was attended by Chief Minister Eknath Shinde, top officials of the Brihanmumbai Municipal Corporation and functionaries of the Royal Western India Turf Club Limited (RWITC), which operates the racecourse on land leased from the state.

The racecourse is one of the remaining large open spaces in the metropolis and converting it into a theme park would be an environmental disaster, as per the three petitions filed last week.

The HC division bench of Justices Gautam Patel and Kamal Khata, while hearing the petition on Thursday, said it is clear to it “cannot possibly issue a mandamus to the executive to take a decision in a particular manner”.

“For our purposes today, what is relevant is the statement of Dr Birendra Saraf, Advocate General. He states on instructions that the December 6, 2023 communication is not in itself a decision. It records that a proposal has been made. Where that proposal emanated from is not relevant,” the court noted.

“The government has not committed, Dr Saraf says, to renewing the lease on the terms that are contained in the December 6, 2023 communication. It is for this reason that Dr Saraf maintains that all three petitions are entirely premature at this stage,” the court added.

The HC said it was not inclined to pre-empt the decisions that may be taken by the RWITC general body or the state government. It also refused to accept the petitioner’s submission that “mere statement of the advocate general will not suffice” since there are allegations of a certain stripe in the petitions.

The HC said the petitioner’s submission cannot be accepted “in a universal or general sense”, adding it is the duty of the court to see the nature of the averments and allegations made.

“It can hardly be suggested that by the mere making of an allegation with nothing further, the authority of the foremost law officer to make a statement that binds the government is thoroughly eroded. We will not do our Advocate General the discourtesy of disregarding the statement he makes today,” the HC said.

“We accept his submission that the statement he makes is on instructions at the highest levels. That is enough for us and nothing further be said in the matter. We have not expressed a view on the allegations of mala fides. We decline to do so today,” the HC said.

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Refusing any immediate relief, the bench said it was not staying the RWITC meeting or the e-voting.

“We are also not preventing the state government from taking an appropriate decision in such a manner and for such reasons as it deems fit,” the bench said.

The court, however, kept the petitions pending for “administrative convenience”.

“All contentions are expressly kept at large irrespective of the pendency of these petitions. We clarify that the only reason to keep these petitions pending is, quite literally, for administrative convenience and nothing further so far as this court is concerned. We have expressed no view on the rival contentions on merits at this stage,” the bench said.

The court said it was not able to fix any particular date “within which the state government must take a decision one way or the other”.

“Indeed, if we might be permitted liberty, its decision may well be not to take any decision at all. Accordingly, we cannot possibly fix the next date, but we grant liberty to any of the parties before us to apply,” the HC said.

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