Pune Ganesh Festival Janotsav, ... vs Pune Municipal Corporation (A ...
2003 Latest Caselaw 962 Bom

JUDGMENT

C.K. Thakker, C.J.

1. This petition is filed by the petitioners praying for an issuance of a writ of mandamus directing the Pune Municipal Corporation, respondent No. 1 herein, not to make any expenditure on cultural activities, unless and until all the statutorily imperative duties imposed upon the Corporation are completely and satisfactorily discharged by the Corporation. A prayer is also made directing the respondent-Corporation and the Municipal Commissioner to allot places belonging to the Municipal Corporation, viz., the ground opposite to Shaniwarwada, Yashwantrao Chavan Natya Gruha, Balgandharv Rang Mandir, Ganesh Kala Krida Kendra and Baburao Sanas Sports Ground, only by conducting public auction and by giving them to the person offering highest bid. Other prayers have also been made.

2. The case of the petitioners is that petitioner No. 1 is a public charitable trust. It conducts cultural activities on large scale during Ganesh Utsav. At pune, there are certain grounds belonging to the Corporation. Only at those places, such cultural activities are possible on large scale. For the year 2002-03, the petitioners were permitted to use a ground opposite to Shaniwarwada for four days. As against that, respondent No. 3, another public trust, was allowed use of Ganesh Kala Krida Kendra, Balgandharv Rang Mandir and Yashwantrao Chavan Natya Gruha by showing favourable treatment towards the said respondent.

3. The petitioners have stated that for the year 2003-04, i.e., for current year, Ganesh Utsav will start by the end of August, 2003. For allotment of Balgandharv Rang Mandir and Ganesh Kala Krida Kendra, rules have been framed by the Corporation. For other three places, however, no such rules have been framed. According to the petitioners, they made an application to the Municipal Commissioner, respondent No. 2 herein, requesting for allotment of Ganesh Kala Krida Kendra for cultural activities. A similar application was made for the ground opposite to Shaniwarwada. The said application was made to respondent No. 3, Officer-in-charge, Central Archeological Department. The Development Engineer (Sewerage Operation), respondent No. 5 herein, informed the petitioners on June 19, 2003 that the request of the petitioners for allotting the ground opposite to Shaniwarwada cannot be acceded to. No particulars, however, had been stated in the said letter. It was also not made clear as to when and in whose favour, the reservation was made. For other two places, viz., Ganesh Kala Krida Kendra and Balgandharv Rang Mandir, nothing was mentioned. The petitioners also requested the Commissioner to give the Baburao Sanas Sport Ground, but no reply was given by the respondent. The petitioners, therefore, are constrained to approach this Court.

4. Notice was issued by us on August 11, 2003, and was made returnable on August 14, 2003 in view of urgency and prayer for ad-interim relief. The respondents appeared, and affidavits have been filed by them. We have heard the learned counsel for the parties.

5. Mr. Anturkar, learned counsel for the petitioners, stated at the outset that he would be praying for relief in respect of three places viz., (i) Ganesh Kala Krida Kendra, (ii) the ground opposite to Shaniwarwada and (iii) Baburao Sanas Sports Ground. Regarding Ganesh Kala Krida Kendra, the counsel contended that rules have been framed, but they nowhere provide that the allotment should be made by inviting tenders or by giving advertisement in newspapers or by calling competitive bids from persons interested in getting such ground.

6. According to the counsel, the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as "the Act") would apply to the case on hand. The provisions of Section 79 were, therefore, required to be followed. The said section provides for "Disposal of municipal property". Clause (c) of Section 79 states that with the sanction of the Corporation the Commissioner any lease sell, let out on hire or otherwise convey any property, moveable or immoveable, belonging to the Corporation. Since the places were "let out on hire", it was obligatory on the Commissioner to follow Section 79(c) of the Act. As it was not done, the action must be held to be unlawful and contrary to law. It was also submitted that even if the above provision would not apply, in accordance with the general and well-established principles, such places must be given by inviting tenders or by giving advertisement and by accepting highest bid.

7. A grievance was also made that the impugned action has been taken with a view to favour respondent No. 3, and on that ground also, the action by respondent Nos. 1, 2 and 5 is liable to be quashed and set aside.

8. As a allotment of ground opposite to Shaniwarwada, a grievance is that no rules have been framed by the Corporation. It was submitted that in respect of the ground opposite to Shaniwarwada, an application was made by the petitioners to respondent No. 4. It ought have been dealt with and decided in consultation with Department of Archeology. The action taken by respondent Nos. 1, 2 and 5, in the circumstances, must be held to be illegal and unlawful.

9. Regarding Baburao Sanas Sports Ground, no rules have been framed by the Corporation. Respondent No. 3 made an application to the Mayor, as well as to the Commissioner, and the application was granted. No reason whatsoever has been given by respondent Nos. 1, 2 and 5 as to why the prayer of the petitioners had not been granted, and the application of the petitioners was not considered. It was, therefore, submitted that all actions taken by the respondents are arbitrary, unreasonable and are liable to be quashed and set aside.

10. An affidavit-in-reply is filed by the Joint Municipal Commissioner (Estate & Housing) of the first respondent. Regarding allotment of Yashwantrao Chavan Natya Gruha, it was stated that the petitioners had not made any application for allotment for it, and, hence, the question does not arise. As stated above, even the petitioners counsel has not pressed the relief for allotment of the said place.

11. Regarding Ganesh Kala Krida Kendra, it was stated that the third respondent made an application for allotment, which was received by the office of the deponent on September 18, 2002. It was forwarded to the Chief Manager, Culture Centre, on September 23, 2003. The submission was placed before the Municipal Commissioner, soliciting his orders, on September 25, 2002, and sanction was accorded by the Commissioner to allot the said Kendra to respondent No. 3 during Ganesh Festival of 2003. Respondent No. 3 issued a cheque on September 14, 2002 for Rs. 2 lakhs. Under Challan dated October 3, 2002, the amount was deposited in the Treasury of the Corporation. It was also stated that the third respondent made an application, which was received on September 18, 2002, along with advance amount of Rs. 2 lakhs. The remaining amount of Rs. 1,41,250 was also deposited by the third respondent. The application of the petitioners was dated September 16, 2002, but they did not make any payment towards advance either in 2002 or "till date". In the circumstances, allotment was made in favour of respondent No. 3.

12. In respect of the ground opposite to Shaniwarwada, an affidavit-in-reply is filed by the Development Engineer (Sewerage Operation) of the Municipal Corporation, wherein it was stated that since 2000, the Corporation is carrying on various cultural activities on that ground. The details have also been furnished in the affidavit-in-reply. It was also stated that for the year 2003, the programme during Ganesh Festival had already been chalked out, and the details have been mentioned in the counter.

13. As to Baburao Sanas Sports Ground, an affidavit-in-reply is filed by the Deputy Municipal Commissioner (Special), and it was stated that the application of the petitioners for allotment of ground for Ganesh Festival, 2003 was received on July 18, 2003. The third respondent made an application on July 24, 2003 to the Mayor, as well as to the Commissioner, but since respondent No. 3 wanted to conduct the sports events, a decision was taken to give it to the third respondent for sports activities. The said action is not illegal or contrary to law.

14. The third respondent also filed an affidavit, inter alia, contending that the petitioners have no right to challenge the action of the respondent-Corporation. The petition is politically motivated and the actions taken by the 1st, 2nd and 5th respondents are legal, valid and in consonance with law.

15. Mr. Goolam E. Vahanvati, learned senior Advocate, instructed by Mr. R.G. Ketkar, learned Advocate, appearing on behalf of the authorities, submitted that the actions taken by the authorities cannot be termed as contrary to law, unreasonable or otherwise objectionable.

16. Regarding Ganesh Kala Krida Kendra, the application of the petitioners was, no doubt, received, but, as stated in the affidavit-in-reply, no amount was deposited by the petitioners, and as the amount had been paid by the third respondent, a decision was taken in favour of respondent No. 3, which was legal, valid and lawful.

17. Regarding the ground opposite to Shaniwarwada, the petitioners cannot take objection as the Corporation itself will undertake all activities.

18. As to Baburao Sanas Sports Ground, Mr. Vahanvati submitted that the ground is for sports activities, and if for such activities, it has been given to respondent No. 3, the petitioners have no right to insist that ignoring the policy-decision, it must be given to them.

19. Regarding applicability of Section 79 of the Act, the counsel contended that the said provisions would not apply in the instant case, as it is not a case of lease, sale, letting out on hire or otherwise conveying property belonging to the Corporation.

20. Mr. Virendra V. Tulzapurkar, Senior Advocate, instructed by Mr. Birendra Saraf, learned counsel, appearing on behalf of respondent No. 3, supported Mr. Vahanvati, and submitted that all actions which have been taken by the authorities are legal, lawful and according to law. It is only with a view to settle political accounts with the third respondent that the petitioners have approached this Court. It was, therefore, submitted that the petition deserves to be dismissed.

21. Having heard the learned counsel for the parties, in our opinion, no case has been made out by the petitioners to interfere with the actions taken by the authorities. So far as provisions of Section 79 of the Act are concerned, in our opinion, they would not apply to the facts of the case on hand.

22. The relevant portion of Section 79 reads thus:-

"Provisions governing the disposal of municipal property:

With respect to the disposal of property belonging to the Corporation other than property vesting in the Corporation exclusively for the purposes of the Transport Undertaking the following provisions shall have effect, namely:

(a) ...

(b) ...

(c) with the sanction of the Corporation the Commissioner may lease, sell, let out on hire or otherwise convey any property, moveable or immovable, belonging to the Corporation:

..."

23. In our considered opinion, allotment of place or ground by the Corporation for few days cannot be said to be lease, sale or "letting out on hire" of (moveable or immovable) property belonging to the Corporation. Admittedly, the places are allotted only for a particular period. It is for a limited period during Ganesh Utsav of ten to fifteen days. Clause (c) of Section 79 of the Act would apply in those cases where there is 'transfer' of property by way of sale, lease, letting out on hire or otherwise conveying property by creating rights. If it is given only for few days, and that too for a particular festival, the said clause has no application. Hence, the contention that the action ought to have been taken in observance of Section 79(c) has not impressed us, and is hereby rejected.

24. In the facts and circumstances, the actions taken by the authorities cannot be said to be contrary to law or otherwise unreasonable.

25. So far as the ground opposite to Shaniwarwada is concerned, the Corporation has decided to carry out various cultural activities on the said ground. The place belongs to the Corporation. It is, therefore, open to the Corporation to undertake such activities, and the petitioners cannot raise any objection against such an action nor they can insist for allotment of that place to them. Reading the affidavit, it is clear that several steps have been taken by the Corporation, and, hence, the petitioners' grievance cannot be said to be well-founded.

26. Baburao Sanas Sports Ground is a sports ground. Keeping the said fact in mind, if the respondent-Corporation has decided to allot the said place to respondent No. 3 for sports activities, it is in consonance with the policy of the Corporation, and the action does not call for interference in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution.

27. It is true that for Ganesh Kala Krida Kendra, the petitioners had made an application. But it has come on record in an affidavit filed on behalf of the respondent-Corporation that respondent No. 3 had also made an application. Necessary payment was also made by respondent No. 3, which was not made by the petitioners. If, in the light of the said circumstance, the allotment was made in favour of the third respondent, the action cannot be held mala fide or illegal. Hence, allotment of the said place in favour of respondent No. 3 also cannot be termed as illegal.

28. Since the petitioners are unable to convince us, the petition is liable to be dismissed, and is accordingly dismissed. In the facts and circumstances, however, there shall be no order as to costs.

29. Before parting with the matter, we may observe that the allotment of the above places is not for a day or two. It is for important festivals and for few days. Though the provisions of Section 79(c) of the Act do not apply to such allotment, it would be appropriate if respondent No. 1-Corporation and the authorities under the Act would consider to frame rules/guidelines/norms for allotment of such places by inviting tenders, issuing advertisements or by adopting any other appropriate mode, method or manner so that there are competitive bids before the Corporation, and on the basis of such bids, the Corporation may be able to take proper decision in accordance with law. Such process will also ensure openness and transparency. As the action has already been taken this year and as we are of the view that the same is not unlawful, we are not interfering with it. We, however, hope that the Corporation may consider laying down proper rules/guidelines/norms for future.