Smt. Seema Savale vs The State Of Maharashtra
2012 Latest Caselaw 228 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                                         
                           WRIT PETITION NO. 8656 OF 2010




                                                
      Smt. Seema Savale                                        .. Petitioner

                    v/s.




                                               
      The State of Maharashtra
      & Others                                             ..Respondent/s




                                       
      Mr.G.S.Godbole i/b. Mr.S.R.Ronghe for the Petitioner.
                             
      Mr.V.S.Gokhale, AGP for the Respondent No.1.
      Mr.D.R.More, for the Respondent Nos.2 and 3.
                            
      Mr.S.R.Ganbavale for the Respondent No.4.


                                   CORAM : A.M.KHANWILKAR &
        

                                           R.Y.GANOO, JJ.

DATED : 19th OCTOBER, 2012

P.C. :

1. Heard Counsel for the parties. Rule. Mr.V.S.Gokhale, waives

notice for respondent Nos.1. Mr. More waives notice for respondent

nos.2 and 3 and Mr. Ganbavale waives notice for respondent no.4. By

consent, heard forthwith.

pps 1/11

2. This petition takes exception to the resolution No.987 dated

20.8.2010 passed by the General Body of the respondent no.2

Corporation. On the basis of the said resolution, notice dated

6.10.2010 bearing No. 179, came to be issued by the respondent no.3,

which was published in the local newspaper on 9.10.2010. The

petitioner prays that the respondent nos.2 and 3 be directed to

forthwith cancel and/or withdraw the said publication. The incidental

relief claimed by the petitioner is to direct the respondent no.1 not to

consider the proposal published and submitted by the respondent no.2

- Pimpri Chinchwad Municipal Corporation, for further minor

modification under Section 37(1) of the MRTP Act, 1966 on the basis

of or on the strength of the impugned advertisement being Notice

No.179 issued by respondent No.3, published in the local newspaper

on 9.10.2010.

3. The principal grievance of the petitioner, who incidentally

happens to be the Corporator in the respondent Corporation, is that, the

Agenda no.17 issued for the General Body Meeting convened on

pps 2/11

20.8.2010 was only to consider the subject of alignment of 18 meters

road passing through Survey No.344, 345, 346 and shifting of garden,

cultural centre and library in the concerned DP Plan. However, the

General Body, in the adjourned meeting passed resolution not limited

to that topic, but transcended beyond that subject and including in

respect of policy matters regarding further modification of the D.C.

Rules (No.2.5) under Section 37(1) and for reduction of premium to

be charged for development proposals for use of TDR under BRTS

Corridor. This was completely without authority of law. If that part of

the said resolution was to be quashed and set aside, it would

necessarily follow that all steps taken or intended to be taken on the

basis of such resolution are non-est in law.

4. In the context of this grievance, vide order dated 10.10.2012, we

called upon the respondents to place on record documents referred to

against subject no.17 of the Agenda of the General Body Meeting, to

justify their stand that the contents of these documents implicitly

permitted consideration of issue regarding further modification of D.C.

pps                                                                                   3/11





       Rules and    reduction of premium to be charged for development

      proposals under BRTS Corridor.         In addition, we directed the




                                                                         

Corporation to state on affidavit as to how many cases have been

processed by the Corporation by giving benefit of reduced premium

and the names of such persons. As regards the later direction, the

Corporation, in its affidavit has in unambiguous terms stated that, the

benefit under the resolution dated 20.8.2012, has not been passed on to

any person/entity so far, and the two proposals for utilization of TDR

and permission for development in the areas affected by BRTS

Corridor received in last two years have been considered on the basis

of the sanctioned Development Rules vide notification of Government

of Maharashtra, dated 3.3.2010 bearing No.TPS-1890/4/CR-

1652/09/UD-13. In view of this statement, the other aspect required to

be explained by the Corporation does not need any further elaboration.

5. Reverting back to the issue raised by the petitioner about validity

of the resolution passed in the General Body Meeting in relation to

Agenda No.17 on 20.8.2010, as aforesaid, the Agenda was limited to

pps 4/11

consider alignment of 18 meter road and shifting of garden, cultural

centre and library and not for further modification of the D.C. Rules

and reduction of premium to be paid for development proposals under

BRTS Corridor as such. The two issues are markedly different and by

no stretch of imagination can be said to be overlapping. The latter is a

policy matter, which, could not be taken up by way of a supplementary

motion.

6. The respondent Corporation, though filed reply affidavit as

desired by this Court in terms of order dated 10.10.2012, failed to

produce the three documents to which reference has been made against

Agenda No.17. Copies of those documents, however, have been

produced by the petitioner. Initially, stand was taken by the

Respondents that the said documents were presently not available with

the Secretary of the Corporation (respondent no.4). Be that as it may,

on perusing the three documents, now produced by the petitioner,

which have been downloaded from the website of the

Corporation, and the correctness whereof is not disputed by the

pps 5/11

Counsel for the respondents, the same pertain to some other subject,

other than the issue regarding further modification of D.C. Rules and

reduction of premium payable in respect of development in the areas

affected by BRTS Corridor.

7. Considering the fact that the agenda of the General Body

Meeting was specific to consideration of alignment of 18 meters road

referred to therein and shifting of garden, cultural centre and library, it

was not open to the house to consider any other substantive matter

while discussing the said subject, in the adjourned meeting, much less

take decision affecting the policy matters and which would result in

financial implications for the Corporation. This is the cardinal

principle of Law of Meetings which ought to have been observed by

the Mayor while conducting the General Body meeting.

8. Our attention has been justly drawn to amended Rule 39 in the

Additional Rules for conducting meeting of the Corporation r/w. Rule

1(m) in Chapter II of schedule D of the Act which explicitly obligates

pps 6/11

the Mayor to keep this aspect in mind. Rule 1(m) in Chapter II of

Schedule D reads thus:

"1. Provisions regulating Corporation's proceedings.

.....................

(m) any meeting may, with the consent of a majority of the councillors present, be adjourned from time to time to a later hour on the same day or to any other day, but no business shall be transacted

and, except as is hereinafter provided, no proposition shall be discussed at any adjourned meeting other than the business or proposition remaining undisposed of at the meeting from which the adjournment took place:

Provided that at any adjourned meeting at which a budget

estimate is under consideration a proposition involving any change such as is described in clause (1) may be made and discussed

notwithstanding that such proposition is not one remaining undisposed of at the meeting from which the adjournment took place, if each of the following conditions has been fulfilled,

namely:-

(i) that written notice of such proposition has been given at the meeting from which the adjournment took place;

(ii) that the adjournment has been for not less than two clear days; and

(iii) that a special announcement of the proposition has been given by the Municipal Secretary (who shall be bound to give

such announcement) in a local daily newspaper not later than the day previous to the adjourned meeting;"

9. Amended rule 39 of the Rules reads thus:

"30. Amendments. - (1) after a motion has been proposed and seconded any councillor may proposed an amendment thereto. (2) Every amendment must be relevant to the motion and may propose a variation thereof, an addition hereto or an omission

therefrom, but no amendment shall be a direct negative to the motion before the meeting or shall be the same in sustance as any motion or amendment already negatived at the same meeting, provided that when a proposal in a negative from has been moved, an amendment of the same in the affirmative from may be moved.

pps                                                                                    7/11





             (3)     Any number of amendments may be made before the

meeting, but no councillor shall propose or second more than one amendment to the same motion and no councillor, who has proposed

or seconded any motion shall propose an amendment thereto.

The mover of a motion may accept an amendment or amendments duly proposed and seconded. The motion so amended

shall than be considered as the original motion before the house."

10. Indisputably, the procedure envisaged in the abovesaid

provisions has not been observed. As a result, we have no hesitation in

quashing and setting aside the impugned resolution to the extent it

purports to deal with other matters- other than in Agenda No.17 -

relating to the D.C. Regulations governing BRTS Corridor, having

been passed without authority of law. If that part of the resolution is

quashed, it would necessarily follow that all consequential steps taken

by the Corporation or any other Authority on the basis of the quashed

portion of the resolution would be non-est in law.

11. Counsel for the Corporation was at pains to pursuade us to take

the view that instead of this court examining the matter for the first

time, may leave all questions open to be decided by the State

Government where the challenge to resolution passed by the General

pps 8/11

Body can be considered in exercise of powers under section 451 of the

Act. The argument, though attractive, at the first blush, deserves to be

stated to be rejected. For, it is "admitted position" that the Agenda No.

17 did not specifically make reference to the matters regarding further

minor modifications of the D.C.Rules regarding development

proposals for use of TDR and reduction of premium amount in respect

of the areas affected by BRTS Corridor . In absence of specific agenda

in that regard, it was not open to the General Body to examine those

matters at all, in the adjourned meeting held on 20.8.2010. It is on the

basis of that resolution, the Corporation has proceeded further and not

only issued the advertisement, but also submitted proposal for minor

modification under Section 37 of the Act to the State Government.

12. In view of quashing and setting aside of the portion of the

impugned resolution as referred to above, all subsequent actions taken

by the Corporation or any other Authority on that basis would be

rendered non-est in law and will have to be ignored. It is fairly

accepted by the Counsel for the Corporation that the proposal for

pps 9/11

further minor modification under section 37 is fully rested on the

impugned resolution and cannot be validated by any other process. In

that case, this petition ought to partly succeed.

13. In other words, the original subject No.17, for modification of

alignment of stated 18 meters road and shifting of garden, Cultural

Centre and Library, which was placed for consideration of the General

Body, in its meeting dated 20.8.2010 resolution No. 987 passed in that

behalf alone is valid and can be acted upon by all concerned. The rest

of the amendment proposed in the said resolution, relating to the DC

Regulations, governing BRTS Corridor, which has become part of

Resolution No. 987 dated 20.8.2010, the same is quashed and set aside.

14. We, however, make it clear that this decision will not come in

the way of the Corporation to reconsider the issue regarding the

further modification of D.C. Rules and reduction of premium in

respect of permission for development in the areas affected by BRTS

Corridor, in accordance with law.

pps 10/11

15. Rule made partly absolute on the above terms.

16. At this stage, Counsel for the Corporation submits that the

operation of this order be kept in abeyance for a period of six weeks

from today so that the Corporation may consider of taking the matter in

appeal before the Apex Court. We have no difficulty in acceding to this

request, but instead of staying the effect of the order passed today we

permit the respondents to maintain status quo as of today, with regard

to the part of the impugned resolution, which has been partly quashed

in terms of this decision, for a period of six weeks.

      [R.Y.GANOO, J.]                       [A.M.KHANWILKAR, J.]
     






pps                                                                                 11/11