The Bombay High Court dismissed a writ petition challenging the communication dated 20.04.2022 by which the Nagpur Municipal Corporation directed the commencement of construction of an Elevated Storage Reservoir at the open space of the layout of Nirmal Nagari Condominium.
The Court observed that given a choice between larger public interest and alleged breach of contractual obligations by the Corporation, the larger public interest has to prevail in the matter of exercise of discretionary jurisdiction under Article 226 of the Constitution of India.
Brief Facts:
Under the Atal Mission for Rural and Urban Transformation - AMRUT, the Nagpur Municipal Corporation intended to construct an Elevated Storage Reservoir (ESR). The said ESR was to meet water scarcity. The work of erecting the said ESR was undertaken by the Contractor but on 11.03.2022, the Society raised an objection that the said construction was being undertaken without the consent of the Society. On 09.04.2022 the Corporation issued a communication to the Society seeking its no objection to erecting the ESR at open space-II. Such no objection was given by the Society. When the Contractor proceeded to start the work of construction of ESR at open space-II, an objection was raised by the members of the Condominium by stating that it was not permissible to erect the ESR at the open space-II. Since the Corporation and the Contractor did not stop the work of aforesaid construction, two members of the Condominium have filed these writ petitions raising a challenge to the communication dated 20.04.2022 issued by the Corporation by which the Contractor was directed to start the construction work of ESR at open space
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the action of the Corporation in directing the Contractor to commence the work of construction of the ESR at open space-II was without obtaining the consent of the members of the Condominium; it was not permissible for the Corporation to proceed to erect the ESR at open space-II. The no-objection stated to be given by the Society on 12.04.2022 had no legal significance since it was only the Condominium that was concerned with the issue of grant of no-objection. The members were being deprived of their undivided right in open space-II by such an illegal act.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the ESR was being constructed with a view to ensure that there was no water scarcity in the nearby localities. The said construction was undertaken so as to serve the larger public interest and the entire action was in accordance with law. The said open space was used as a playground but the same would not mean that it was reserved for playground.
Observations of the Court:
The Court noted that the members of the Condominium through the Board of Managers had consented to the transfer of 10,000 square feet of land to the Corporation for the erection of the ESR. However, according to the Condominium, the consent granted by it was conditional. The grievance of the members of the Condominium appears to be non-fulfillment of the conditions stated therein. However, the Court said, in that regard, the members of the Condominium would have a separate cause of action, if according to them the conditions stated while granting no-objection on 09.12.2021 have not been satisfied by the Corporation. The same cannot be the basis for holding that there was an absence of consent of the members of the Condominium for the erection of the ESR.
The Court observed that another aspect of the matter that cannot be lost sight of is that erection of the ESR is in the larger public interest with a view to facilitate the supply of water to residents of the Condominium as well as nearby areas. Given a choice between the larger public interest and the alleged breach of contractual obligations by the Corporation, the larger public interest has to prevail in the matter of exercise of discretionary jurisdiction under Article 226 of the Constitution of India.
The decision of the Court:
The Bombay High Court, dismissing the petition, held that there is no case made out to set aside the impugned communication dated 20.04.2022 permitting construction of the ESR at open space-II.
Case Title: Gopal Keshavdev Sharma vs The Nagpur Municipal Corporation & Ors.
Coram: Hon’ble Justice A. S. Chandurkar and Hon’ble Justice M. W. Chandwani
Case no.: WRIT PETITION NO. 2761 OF 2022
Advocate for the Petitioner: Mr. S. S. Ghate
Advocate for the Respondents: Mr. S. M. Puranik
Read Judgment @LatestLaws.com
Picture Source :
