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BDPPS IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION (L) NO.33 OF 2016

Loksatta Movement & Anr. …... Petitioners.

V/s

The State of & Others …...Respondents. ­­­ Mr. D. H. Mehta, Senior Counsel, with Mr. Arshil Shah, Ms. Ankita Verma, Dhaval Mehta, a/w Rima Paradkar i/b D. M. Legal Associates, for the Petitioners.

Mr. Rohit Deo, Acting Advocate General, a/w Ms. Geeta Shastri, Addl. G.P., Mr. A.B. Vagyani, GP for Respondent No. 1. Mr. S. S. Pakale a/w Trupti Puranik, for the Respondent – BMC.

Mr. S. B. Pawar a/w Swati Sawant, Nikita Jacob i/b S. K. Legal Associates, for Respondent No. 2.

Mr. Abhijeet Kulkarni for Respondent No.5. Mr. Rafique Dada, Sr. Counsel a/w Indranil Deshmukh, Ms. Ayesha Talpade i/b M/s. Cyril Amarchand Mangaldas, for Respondent No. 6 (BCCI). Mr. Rafique Dada, Sr. Counsel a/w A. S. Khandeparkar, V. V. Warerkar i/b Warerkar & Warerkar, for Respondent No. 7. Mr. Vineet Naik, Sr. Counsel a/w Sukand Kulkarni, for Respondent No. 8. BombayMr. Vedchetan Patil, for Intervenor – Gournet Renaisance Pvt. Ltd. High Court Mr. Milind Sathe, Sr. Counsel a/w Firdosh Pooniwala, Ms. M. D' Souza i/b A. S. Dayal & Associates, for Intervenor / Applicant ( Wins Sports Pvt. Ltd.). Mr. Janak Dwarkadas, Senior Counsel with Mr. Nimay Dave with Mr. Yogendra Singh i/b Ans Legal for New Rising Promoter Pvt. Ltd. [Rising Supergiants)

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Dr. Sanjay LakhePatil, Applicant/ Intervenor present. Mr. S.N. Pillai for Intervenor/Applicant

CORAM: V. M. KANADE & M.S. KARNIK, JJ.

DATE: 13th April, 2016

P.C.:­ (Per V.M. Kanade, J.)

1. Heard Mr. Mehta, the learned Senior Counsel appearing on behalf of the Petitioners, Mr. Dada the learned Senior Counsel appearing on behalf of Respondent No.6 and 7, Mr. Milind Sathe, the learned Senior Counsel appearing on behalf of the Intervenor – Indiawin Sports Pvt. Ltd., Mr. Dwarkadas, the learned Senior Counsel for the Intervenor ­ New Rising Promoter Pvt. Ltd and Mr. Vineet Naik, the learned Senior Counsel appearing on behalf of Respondent No.8. We have also heard Mr. Deo, the learned Acting Advocate General appearing on behalf of the State and the learned Counsel for the Corporation. Application for intervention also has been filed by one Dr. Sanjay LakhePatil and the learned Counsel Mr. S.N. Pillai and we have also heard them.

Bombay2. Petitioner No.1 claims High to be a Non­Profit Court and voluntary Association which has undertaken various social movements. Petitioner No.2 is also a Non­Profit and voluntary Association registered with the Registrar of Societies, . Both these Petitioners have filed this Public Interest Litigation under Article 226

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of the Constitution of India seeking appropriate writ, order and direction directing Respondent Nos. 6 to 9 to alter their Venue of IPL, 2016 and hold their games outside the Maharashtra. Petitioners are also seeking further directions to Respondent Nos. 1 to 3 to take appropriate steps and follow the provisions of the Maharashtra Water Resources Regulatory Authority Act, 2005 (For short “MWRRA Act, 2005”) and for other consequential reliefs.

3. Mr. Mehta, the learned Senior Counsel appearing on behalf of the Petitioners submitted that the Petitioners were constrained to file this Petition after they came to know that almost 60 lakhs liters of water was being used for maintaining pitches in , Pune and . He submitted that Respondent Nos. 6 to 9 propose to hold IPL matches at three Venues in Maharashtra viz. Mumbai, Pune and Nagpur. He submitted that it is a common knowledge and common ground that State of Maharashtra is going through a worse kind of drought and is facing acute water shortage as the level of water in Dams is depleted to a considerable extent and in Marathwada most of the lakes have dried up and dam water also is not available since the last year. Same is the case of water level in Vidarbha and Pune. He invited our attention to the statistical data which has been Bombaygiven by the Petitioners in this Petition. He submitted that such kind High Court of use of water for maintenance of pitches is clearly violative of Articles 21 and 47 of the Constitution of India and also violative of the provisions of the MWRRA Act, 2005. He submitted that use of

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water for maintaining pitches on such a huge scale is also in breach of the State Water Policy which has been framed under Section 2(x) of the MWRRA Act, 2005. He submitted that the State Water Policy has been framed on the guidelines provided in National Water Policy, 1987 and 2002 and which has been reformulated in 2003 and 2011. He invited our attention to Clause 4.0 of the said State Water Policy. He then submitted that use of water on such a huge scale definitely has an impact on agriculture of the State. This water could be utilized for non­potable use in the drought affected areas.

4. Mr. Mehta, the learned Senior Counsel for the Petitioners therefore submitted that this Court may issue appropriate writ, order and direction directing Respondents 6 to 9 to shift their Venue outside the Maharashtra.

5. A detailed affidavit­in­reply has been filed by Respondent No.6 on 7th April, 2015 and further affidavit has been filed on 12th April, 2016. The State Government also has filed a reply dated 12th April, 2016. Corporation has filed its reply through the Assistant Engineer, Water Works, dated 12th April, 2016. Similarly, Respondent No.8 – The Maharashtra Cricket Association also has filed their reply dated Bombay12th April, 2016. Mr. Dada, High the learned Senior CounselCourt also has tendered further affidavit on behalf of Respondent No.6 affirmed on 13th April, 2016.

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6. The matter came up for hearing on 5th April, 2016 when we had directed the State Government to file their reply. We had also heard Respondent No.6 on that date. Thereafter the matter was again heard on the next two days and on 7th April, 2016 when no reply was filed by the State Government, we had directed the State Government and the Corporation to file a detailed affidavit­in­reply informing the Court on certain aspects namely:­

(i) State Government shall make an inquiry and find out whether water which is supplied for the benefit of maintaining pitches for IPL matches is potable or non­potable.

(ii) What is the stand of the State Government regarding IPL matches which are held in Maharashtra which is presently facing acute water shortage and whether any permission of the State Government was sought before organizing these matches.

Bombay(iii) Whether theHigh State Government Court proposes to take any steps for curbing the use of 40 to 60 lakhs litres of water for maintaining the pitches and whether they

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propose to impose any ban on holding these IPL matches in Maharashtra.

(iv) The policy which the State has formulated for the supply of potable and non­potable municipal water to the people in Mumbai, Thane and Kalyan and also other parts of Maharashtra.

(v) Whether there is any contingency plan prepared by the State Government in the event further scarcity of water is created on account of delayed monsoon.

(vi) Whether any inquiry is made by the State regarding the source of water which is made available to the Tankers, which provide water at a huge premium all over Maharashtra and particularly to the Stadiums where IPL matches are held.

Bombay(vii) Whether the State proposes to issue High Court any order of requisition in respect of all wells and bore­wells situated in Mumbai and other adjoining .

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(viii) Corporation also to file an affidavit and inform this court the source of water which is made available to the Tankers, which provide municipal water in the of Mumbai.

(ix) Whether the State Government proposes to impose any restriction on the use of water during marriage ceremonies, receptions and other functions such as IPL matches which are being held in the month of April and May, 2016.

7. We had declined to grant any ad­interim relief claimed by the Petitioners on that date by observing that the Petition was filed just couple of days before the first match was to be held and we did not think it fit and proper to grant any stay to the match which was being held on 9th April, 2016 but we had suggested that Respondent No.6 and those Franchises who are organizing these matches to reconsider the situation in its proper perspective and take a decision. The matter Bombaywas then adjourned to 12 th April, 2016. High Court

8. On 12th April, 2016, we heard all the Counsels at length. It was pointed out to us on that date that one of the Franchises viz. KPH

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Dream Cricket Pvt. Ltd (Kings­XI, Punjab) has made a statement to the press that they are willing to shift the Venue from Nagpur to . We had therefore directed the Petitioners to join Kings­XI, Punjab as party­respondents.

9. Mr. Dada, the learned Senior Counsel appearing on behalf of the Respondent Nos. 6 and 7 submitted that the Royal Turf Club Ltd (For short “RWITCL”) had shown its willingness to supply sewage treated water for watering of the cricket pitches in Mumbai and Pune. He submitted that this sewage treated water was not potable and therefore could be safely used only for maintenance of the cricket pitches. He invited our attention to the letter written by Secretary, RWITCL Mumbai dated 11th April, 2016 to the Maharashtra Cricket Association, Pune. He submitted that in the said letter, the said RWITCL had agreed to provide about 7 to 8 tankers of their sewage treated water on daily basis upto end of May, 2016 to water the cricket pithces at Pune. Similar letter was written to the Secretary, Board of Control for Cricket in India, Mumbai. Mr. Dada, the learned Senior Counsel for Respondent No.6 submitted that as a result of proposal given by RWITCL, it was no longer necessary for Respondent Nos. 6 to 9 to use even non­potable water which was being supplied Bombayby tankers at Pune and Mumbai. He submitted that so far as Nagpur High Court Stadium is concerned, they did not require supply of water from external source since the wells are situated in the premises of the Stadium which provide non­potable water for watering the cricket

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pitches. He submitted that therefore principal grievance of the Petitioners did not survive. Today, during the course of hearing, he has also invited our attention to the further affidavit filed on behalf of Respondent No.6. He submitted that Respondent No.6 was willing to contribute an aggregate of Rs 5 crores to the Chief Minister's Drought Relief Fund, provided this Court gives direction to that effect so that Respondent No.6 would not face any problem from the Income­tax Department. Secondly, he submitted that Mumbai Cricket Association are willing to supply an equal quantity of non­potable water/raw water to the drought affected areas free of cost to any area within Maharashtra as may be nominated by this court. He submitted that after having given the serious thought to the suggestion made by this Court for shifting matches from Mumbai, Pune and Nagpur, according to them, it was very difficult now to shift matches since it would not only entail logistical support but also new arrangements will have to be made which is not possible at this late stage. He submitted that they had considered the option but even some of the other Cities had not accepted their proposal for shifting these matches.

10. Mr. Deo, the learned Acting Advocate General appearing on behalf of the State has invited our attention to the detailed affidavit­in­ Bombayreply filed on behalf of the State. High In para 10 of the affidavit , it is Court stated that the State Government had no objection of whatsoever to shift the IPL, 2016 matches despite the State losing revenue of approximately Rs 1,50,00,000/­ per match in the form of

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entertainment duty. In the reply, it is further stated that the State Government was not providing potable water for the purpose of maintaining cricket pitches to host IPL matches. He submitted that it was the duty of the Municipal Corporation to monitor supply of water, particularly in view of amended Article 243­W of the Constitution of India which provided that it was a sole responsibility of the Municipality to ensure implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelth Schedule. He also invited our attention to Section 63 of the Maharashtra Municipal Corporation Act, 1949 which provided matters which were to be taken care of by the Corporation. He submitted that Chapter XIII of the Maharashtra Municipal Corporation Act, 1949 contains various provisions relating to water supply and similar provisions are to be found in the Mumbai Municipal Corporation Act, 1888. He therefore submitted that supply of water was largely in the domain of the Municipal Corporation. He submitted that the State Government had directed the Corporation to make inquiry as to whether water which was being used by Respondent Nos. 6 to 9 was potable or non­potable and it had also directed the Corporation to find out the source of water which was being supplied to the Tankers. He, however, submitted that if water was supplied to Bombaythe Tankers, Clause 4.0 of the Maharashtra State Water Policy, 2003 High Court would not apply to supply of such water. Reply also tried to answer the questions which were posed by this Court to the State Government.

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11. On the other hand, Corporation has filed an affidavit dated 12th April, 2016. Affidavit does not, however, deal with some of the questions which were posed by this Court to the Corporation and it is silent on these questions and particularly on the question of source of water which is made available to the Tankers. Affidavit, however, gives details regarding water tankers which are operating in the City of Mumbai and sources from which non­potable water is made available are mentioned in para 3 of the affidavit. However, the affidavit does not deal with the principal question which was posed to the Corporation viz to give details of the source of water which is made available to tankers which provide water to Wankhede Stadium.

12. Respondent No.8 – The Maharashtra Cricket Association also in their reply have stated that they are concerned about water scarcity that has arisen in some part of the State of Maharashtra and they are not taking this litigation as as adversarial litigation. The said affidavit also makes reference to the proposal which was given by RWITCL for supply of excess treated sewage water to the Maharashtra Cricket Association on daily basis upto end of May, 2016.

Bombay13. The Intervenor – Dr. Sanjay Nilkanthrao LakhePatil invited our High Court attention to water scarcity in Maharashtra. He submitted that the State Government had not declared drought in the State, though it had declared some of the Villages as being affected by drought. In his

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additional affidavit, he has submitted that the Supreme Court also had taken a serious note about monitoring of the drought affected Sates and Districts of India and had asked the Government of India to declare the drought in major States and had also asked to treat this as a National Disaster. However, the Government of India informed the Supreme Court that this issue was in the domain of the respective States and the Centre could not give such directions to the State. We had asked the learned Acting Advocate General whether State Government was going to consider declaring of official drought in the State. He, however, submitted that the State Government had declared some of the Villages as drought affected Villages but had not officially declared drought in the State of Maharashtra.

14. Mr. Mehta, the learned Senior Counsel appearing on behalf of the Petitioners, in rejoinder, submitted that he had some material to show that sewage treated water was not safe even for being used for watering the cricket pitches since there was a possibility of even players getting infected if they came in contact with such water. Mr. Dada, the learned Senior Counsel for Respondent No.6 and 7, however refuted the said allegations and submitted that no reliance could be Bombayplaced on news­paper reports for that purpose. High Court 15. We have heard all the Counsels at length. We had given several opportunities to Respondent Nos. 6 to 9 and had asked them to consider whether they were willing to shift the Venue of matches out

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of Maharashtra. However, we were informed about their inability to do so. On the contrary, an alternative proposal has been given to us.

16. We have given our thoughtful consideration to all the submissions made by Respondent Nos. 6 to 9 and also submissions made by the learned Senior Counsel appearing on behalf of the Petitioners and the learned Acting Advocate General and the learned Counsel appearing on behalf of the Corporation.

17. There is no manner of doubt that various reports which have been placed before us by the State Government and which have appeared in the news­papers and Media and the facts and figures which have been mentioned by the Intervenor Dr. Sanjay LakhePatil in his affidavit and additional affidavit clearly indicate that in the State of Maharashtra and more particularly most of the Districts of Marathwada and Vidarbha and some of the other Districts in Maharashtra are facing severe drought as there is scarcity of water. Situation in some of the parts of Marathwada is very acute and not a drop of water is available even for the purpose of drinking or for sanitation. Reports which have been brought to our notice, indicate that all dams in Latur District have dried up and water is being Bombaysupplied through wagons and tankers. High Same is the condition in the Court Districts of Aurangabad and Osmanabad.

18. The first question which falls for consideration before us is :

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whether in such a condition, State Government can act as a mute spectator and turn a blind eye towards the use of water by some Institutions. We are disturbed by the stand taken by the State Government. From the affidavit­in­reply and the submissions made by the learned Acting Advocate General, it is clear that the State Government is trying to pass the buck and is now blaming the Municipal Corporation by relying on certain amended provisions of the Constitution viz Article 243­W. It cannot be forgotten, however, that ultimate responsibility of maintaining water supply is on the State Government. Even some of the provisions of the Municipal Corporation Act clearly give overriding power to the State Government to give directions to the Corporation and these directions are binding on the Corporation. On the one hand, State Government has filed an affidavit and has stated that it has no objection if the matches are shifted out of Maharashtra and, on the other hand, it acts as a mute spectator and does not even question Respondent Nos. 5 to 9. In the reply, they have stated that they have asked the Corporation to make inquiry. We are surprised by the stand which is taken by the State of Maharashtra. It is apparent that though they have stated in the affidavit that they have no objection if the matches are shifted out of Maharashtra, at the same time, during the course of their Bombaysubmissions, we have noticed that they have, in fact, not taken any High Court action though these facts have been brought to their notice through this PIL.

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19. The second question which falls for consideration before this Court is : whether while exercising its writ jurisdiction, this Court can give directions to Respondent Nos. 6 to 9. It is well settled by series of judgments of the Apex Court and this Court that even Respondent Nos. 5 to 9 are amenable to the writ jurisdiction of this court though they are private bodies.

20. The third question which falls for consideration before this Court is: whether merely shifting of IPL, 2016 matches would solve the problem of supply of water to the drought affected areas or whether the State Government could independently tackle this problem.

21. There is much substance in the submissions made by Mr. Mehta, the learned Senior Counsel appearing on behalf of the Petitioners. Prima facie, there is clear violation of Articles 21 and 47 of the Constitution of India and the provisions of MWRRA Act, 2005 and, secondly, there is a breach of priorities which are referred to in Clause 4.0 of the State Water Policy which has been reformulated in 2003 and 2011. Clause 4.0 of the State Water Policy reads as under:­

“4.0 Priority of Water Usage BombayWater resources shall High be allocated inCourt accordance with the following general principles: (a) Domestic use for drinking, cooling,

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hygiene and sanitation needs including live stock; (b) Agriculture and hydropower; (c) Industrial, commercial use and agro­based industrial use; (d) Environment and recreation uses; (e) All other uses,”

22. In our humble view, this Court cannot lose sight of the fact of plight of millions of people in the State of Maharashtra who are facing acute scarcity of water. It has been brought on record that animals, cattle and people are dying as a result of scarcity of water in some of the Districts and particularly in District Latur, water is being supplied twice in a month and even non­potable water is not available. Same is the condition even in Cities which are just next to Mumbai viz. Thane and Kalyan. Even the City of Pune is facing acute shortage of water. This Court, therefore, cannot act as a mute spectator and ignore the plight of the millions of people in the State of Maharashtra. It is no doubt true that merely shifting of the Venue of IPL matches alone would not solve the problem. But, in our view, this could be the beginning, so that water which is used for maintaining the cricket Bombaypitches, if it is diverted to the drought affected areas, to a large extent High Court the problem can be solved.

23. We also propose to give further directions to the State of

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Maharashtra to regulate the usage of water for the purpose of entertainment and for other functions in which water is likely to be used on a very large scale. We propose to streamline the process of conservation of water, so that even if arrival of monsoon is delayed by a month or two sufficient measures are taken for ensuring minimum water supply throughout the State of Maharashtra. Similar directions will be issued to all those Institutions and sport activities where water is being used on a very large scale on day­to­day basis. We have therefore sought further response from the State of Maharashtra.

24. Though it has been submitted before us that RWITCL would supply sewage treated water for watering the cricket pitches, in our view, it may not be possible for this Court or even the State Government to monitor the situation and to find out whether actually this is being done or not. The RWITCL is not a party to this Petition and the undertaking which is given by them does not satisfy us that they will stick to their statement. Apart from that, certain doubts have been raised about suitability of this sewage treated water for the use of maintaining the cricket pitches. However, without going into the said controversy, we are of the view that merely giving donation to the drought Relief Fund will not solve the issue. We have given several Bombaydirections to the State Government in PIL No.154 of 2015 and we High Court propose to monitor the issue of implementation of water policy even in this Petition.

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25. The submissions made by the learned Senior Counsel Mr. Dada appearing on behalf of Respondent Nos. 6 and 7 and the learned Senior Counsels appearing on behalf of other Respondents cannot be accepted because ­

(i) Proposal given by BCCI though at the first blush appears to be attractive, on closer scrutiny, it is not practicable.

(ii) There is no way to monitor the actual usage of sewage treated water being used for watering the pitches.

(iii) The State Government and BMC have tacitly supported BCCI. Under the circumstances, since there is no guarantee that sewage treated water would actually be used for watering the pitches, the said proposal given by the BCCI cannot be accepted by us.

(iv) No particulars have been given about the Bombaytreatment plant at RWITCI. High Court

(v) It appears to be yet another excuse for holding IPL tournament in Mumbai and Pune.

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(vi) There is apparently some doubt about safe usage of this sewage treated water.

(vii) Apart from difficulty of transferring the matches outside the State, there is no concrete material that transfer to other areas would entail actual financial loss to the Franchises.

(viii) Moreover, financial loss cannot be equated with hardship which is likely to be caused to the millions of people in Maharashtra and if 60 lakhs liters of water which is used for watering the cricket pitches, is transferred to the parched areas of Maharashtra, it would certainly ease the problem of water scarcity.

(ix) The factual scenario is that the large part of Maharashtra does not have a drop of water for potable and non­potable purposes Bombayand this water canHigh be transferred to Court the parched areas of Maharashtra.

(x) Merely because for other sports activities

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the water is being used, that cannot be the justification for using of water for maintaining cricket pitches. Moreover, we propose to further streamline the process by imposing further restrictions on the use of water for entertainment. We have therefore expanded the scope of the PIL and kept it for further orders on 2nd May, 2016.

(xi) Some of the shareholders of other Franchises have stated that they are willing to shift their matches from Nagpur to Mohali.

(xii) It cannot be forgotten that present situation has arisen almost after 100 years and is therefore an extraordinary situation and to tackle such situation, we need to take extraordinary measures.

(xiii) From day one of the hearing of the PIL, the stand of BCCI and IPL has been Bombayunreasonable. High Court

(xiv) Next and last but not the least, lives of millions of people have to be given priority

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over entertainment.

26. Taking an over all view of the matter, we feel that, at the most, Respondent Nos. 6 to 9 may suffer financial losses if they are asked to shift their Venue to the adjoining States. However, the harm which would be caused to the people at large if they are allowed to continue to hold their matches in State of Maharashtra is irreparable. Apart from suffering any financial loss, it is a question of realizing sensitivity of the issue and hardship which is being faced by all the citizens of this State. In such a case, we would have expected Respondent Nos. 6 to 9 to have on their own come forward and shift the Venue from the Maharashtra to other States. However, despite several opportunities being given to them, no such decision unfortunately has been taken by Respondent No.6 and the other concerned Respondents. We have, therefore, no other option but to interfere in the matter and give directions to Respondent Nos. 6 to 9 to shift the Venue of IPL, 2016 matches from 30th April, 2016 onwards to other States. We propose to give 15 days' time to them, so that during this time they can make their arrangements for shifting the Venue to other States. Respondent Nos. 6 to 9 also had given offer that they would supply water which was otherwise to be used by them for maintenance of cricket pitches to Bombaythe Villages which are nominated by the Chief Minister or by this High Court Court. We are afraid that it will not be possible for this Court and the State Government to keep monitoring such supply of water by Respondent Nos. 6 to 9 and we therefore cannot accept the aforesaid

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offer and we direct Respondent Nos. 6 to 9 to shift Venue of IPL, 2016 matches which are to be held from 30th April, 2016 onwards to the other States.

27. We must express our deep sense of appreciation to the statement made by one of the shareholders of KPH Dream Cricket Pvt. Ltd. (Kings­XI, Punjab). He has stated that commercial losses are irrelevant when we are faced with national calamity and he has stated in the interview that he was willing to abide by any orders that may be passed by this Court and was willing to shift the Venue to Mohali. We had expected same kind of response from Respondent Nos. 6 to 9. However, may be on account of prior commitments, such a statement could not be made by the said Respondents.

28. We would however like to consider the larger issues which have been raised in this Petition and for that purpose we adjourn the matter to 2nd May, 2016.

29. Parties are directed to act on the copy of this order duly authenticated by the Registry of this Court. We have passed this order in the open Court and therefore the order will have to be complied Bombaywith and an authenticated copy of High which may be made available Court within a couple of days. 30. Leave to amend is granted.

(M.S. KARNIK, J.) (V.M. KANADE, J.)

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