Bombay High Court
State Of Maharashtra vs Municipal on 20 October, 2012
Bench: P.V. Hardas, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT NAGPUR
P.I.L. NO. 74 OF 2010
1. Dr. Surendra Ramlal Tiwari,
Aged about 44 yrs., Occ. Lecturer in
Physical Education in Jyoti College
of Physical Education, Higna Road,
Nagpur, r/o. Trimurty Nagar, Nagpur.
2. Trimurty Nagar (N.I.T.) Ground
Bachav Kruti Samiti, through its
Secretary, Purushottam Parmore,
Aged about years, Occ. Private,
r/o. L.I.G. Colony, Trimurty Nagar,
Nagpur.
// VERSUS //
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1. State of Maharashtra,
through its Secretary, Urban Land
Development Department,
Mantralaya, Mumbai-32.
2. Nagpur Improvement Trust,
through its Chairman, Civil
Lines, Nagpur.
3. Nagpur Municipal Corporation,
through its Commissioner, Civil
Lines, Nagpur.
4. Bhartiya Vidya Bhavan,
Munshi Sadan, Kulpati K.M.Munshi
Marg, Mumbai - 400 007, through
constituted attorney Shri T.G.L. Iyer,
Director, Bhartiya Vidhya Bhavan
Nagpur Kendra, Lala Lajpat Rai Marg,
Near Museum, Civil Lines,
Nagpur - 440 001. ........ RESPONDENTS
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-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=--
Mr.A.S.Jaiswal, Adv. for Petitioner.
Mrs. Bharti Dangre, Addl. G.P. for Respondent no.1.
Mr. S.K.Mishra, Adv. for Respondent Nos. 2 and 3.
Mr.M.G.Bhangde, Sr. Advocate with Mr.R.M.Bhangde,
Adv. for Respondent No.4.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
******************
Date of reserving the Judgment : 4.10.2012.
Date of pronouncing the Judgment : 20.10.2012.
******************
CORAM : P.V.HARDAS &
A.P.BHANGALE, JJ.
JUDGMENT ( Per A.P.Bhangale, J) :
1. Pursuant to Misc. Civil Application No.1129 of 2011
(Review Application) preferred by Bhartiya Vidya Bhavan
(hereinafter referred to as "BVB".) through its Attorney Shri
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T.G.L. Iyer, Civil Lines, Nagpur with a prayer to recall the
Judgment dated 12th October, 2011, we had heard the parties
and by order dated 26th April, 2012, we had recalled the
Judgment dated 12th October, 2011 and restored the Public
Interest Petition No.74 of 2010 for hearing afresh.
2. The challenge was to the action of local Planning
Authority - Nagpur Improvement Trust (hereafter referred to
as "N.I.T.") for allotment of the land, which was reserved in
the Development Plan for Primary School, Secondary School
and Playground to Bhartiya Vidya Bhavan, an educational
Institution/Trust. The petition was accepted as a Public
interest Litigation pursuant to orders of the learned Senior
Judge of the Bench at Nagpur dt.2.12.2010 and 6.12.2010
and notices were issued to the respondents named in the P.I.L.
3. The grievance of the BVB is that it had proposed to
start the Primary and Secondary School of CBSE pattern in
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English Medium on the ground that it is required in Khasra
No.12, mouza Bhamti (Bhamti-Parsodi Street Scheme) in the
City of Nagpur. But the entire tender process was set aside by
this Court initiated by e-tender, dated 06/09/2010. According
to the BVB, there was no challenge in the petition that the area
of the School has been increased and the area reserved for the
playground is decreased without following the procedure
according to law. According to the BVB, the Writ Petitioners
had not challenged non-communication of the decision taken
in the pre-bid meeting to the general public. According to the
BVB, the minutes of the pre-bid meeting were communicated
on the web site 'www.nittenders.com' on 01/10/2010 and the
last date for the submission of the bid was 20/10/2010.
According to the BVB, there was no challenge to violation of
the Development Plan by reduction of the playground by
allowing a restaurant in the residential Zone. The BVB
contended that the restaurant was not meant for the general
public nor for their school. It was a Canteen strictly for the
refreshment for the people coming to the playground to be
conducted by the Contractor appointed by the Nagpur
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Improvement Trust (N.I.T.). It is further contended that there
is no plan for the commercial activity. The restaurant is to
situate at the Corner occupying 90 Sq. Meters out of 13537 Sq.
Meters within the permissible Zone. According to the BVB,
there is no violation of the Development Regulations 2000 for
Nagpur City and the dominant user will not change. It is also
contended by the BVB that the public interest would not be
injured/affected by the Restaurant/canteen as it is for the
people using the playground. Further, according to the BVB,
the Writ Petitioners had not challenged the fact that the last
date for the submission of e-tender was 05/10/2010 and
opening has been on 05/10/2010, but the resolution to
participate in the tender process was made by the BVB at
Mumbai on 15/10/2010. According to the BVB, the tender
process was extended by the N.I.T. till 20/10/2010 by
publishing the corrigendum on 30/09/2010 in the newspapers
- "The Hitavada", "Lokmat Samachar", "Deshonnati", and
"Navbhrat" and the bid was submitted on-line on 19/10/2010
within the extended time. According to the BVB, the Writ
Petitioners had not raised a challenge that the names of the
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two participants were not recorded in the pre-bid meeting.
The BVB submitted that there was separate attendance sheet
for that purpose and the attendees had duly signed. Further,
according to the BVB, apart from the land area of 11136 sq.
meters, the N.I.T.'s land was also included to make it 13557
Sq. meters for the project of playground plus Garden. The
BVB submitted that the entire area is included in Project A
(playground+Garden at the periphery and left over places of
the playground). According to the BVB, total area of the
garden would be only 3460 Sq. meters. According to the BVB,
Nagpur City's Development Control Rules are not violated to
beautify the playground as the playground remains substantial
user. It is grievance of the BVB that the Public Interest
Litigation was allowed erroneously without specific challenges
from the Writ Petitioner to the construction of the School
with garden, Sports complex, playground for the School etc.
proposed by the BVB.
4. The facts, briefly stated, are as under :
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The land Khasra No. 12 of Mouza - Bhamti included in
Bhamti Parsodi Street Scheme of Nagpur Improvement Trust
(hereinafter referred to as "the N.I.T.") was reserved as per the
Development Plan sanctioned in the year 2001, as below:-
Reservation No. Purpose of reservation Area
SW 164 for Primary School 0.176 H
SW 165 for Secondary School Area 0.352 H
MSW 16 playground 1.1136 H.
Remaining reservation was for 9 meters x 12 meters wide
road and residential purpose.
5. On 27/02/2002, by a Notification, the Nagpur
Municipal Corporation (hereinafter referred to as "the
N.M.C.") was declared as the Planning and Development
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Authority. It is competent Authority to make necessary
changes in respect of planning and development in the above
Khasra. It had passed unanimous resolution on 12/04/2010 to
delete the reservation of plot nos. SW-164 and 165 and
included those plots in the MSW-16 reserved for playground
meant for the use of common people, who are residents in the
surrounding area. The notice dated 26/10/2010 was issued by
the N.M.C. in view of Section 37 of the Maharashtra Regional
Town Planning Act, 1966 (hereinafter referred to as "the
MRTP Act") for the modification of the above said reservations
accordingly. But, earlier, on 29/03/2010, the N.I.T. had
issued a notice inviting offers to develop the aforesaid plot
nos. SW-164 and SW-165 for the Primary and Secondary
School on Public-private participation basis, contrary to the
unanimous resolution passed by the N.M.C. and modification
proposed by it .
6. The petitioners before this Court argued that they
represented the residents of the area. Petitioner No.1 is a
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Lecturer while petitioner No. 2 is an association of local
residents formed for preserving the said playground. The
petitioners, who represent the residents of the area concerned,
had made representations to the Planning Authority to declare
the entire land comprising of plot nos. SW-164, SW 165,
MSW-16 of the land Khasra no. 12 in Bhamti- Parsodi Street
Scheme as a 'playground' and their prayers in the petition in
the public interest were to quash an advertisement issued on
dated 29.03.2010 with its Corrigendum issued later and the
subsequent tender notice similarly published in September,
2010 by the N.I.T. On behalf of the petitioners, it is submitted
that the Writ Petition under Article 226 of the Constitution of
India is treated as a 'Public Interest Litigation' (read with
articles 14 and 48A) and the petitioners seek to represent the
common people residing in the Bhamti area (rate & tax
payers) claimed to be deeply interested in the public utility
land, environmental protection of the area and planned and
orderly development of the City of Nagpur. Since alteration of
the sanctioned Development Plan is the subject-matter falling
within the jurisdiction of the Planning Authority under the
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Maharashtra Regional Town Planning Act, 1971,
respondent/Nagpur Municipal Corporation (N.M.C.) was
instructed to take suitable action under Section 37 of the
MRTP Act.
7. The petitioners prayed for declaration that
modifications of reservations suggested by the N.M.C. vide
notice dated 26.10.2010 under Section 37 of MRTP Act by
seeking deletion of reservation for Primary School and
Secondary School and to add the land thereof to reservation
for playground is legal and valid. It is not in dispute that,
during pendency of this petition, the N.M.C. has considered
the said proposal, but, later on, decided to withdraw it. In the
result, the original reservation, as given in the Development
Plan, stands as it is. The position declared by the N.M.C. on
record and vide affidavit dated 10/08/2011 and declaration
that the proposal for minor modification of Development Plan
initiated under Section 37 of the MRTP Act is dropped, was
not questioned in any way, although, thereafter C.A.O. No.
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1182 of 2011 has been moved by the Writ Petitioners on
24/08/2011 seeking leave to add Para 16G to the petition.
The amendment was allowed by this Court on 14/09/2011.
Thus, the declaration that the proposal to drop reservations
for Secondary School and Primary School is valid has not been
pressed thereafter by the petitioners. Similarly, though there
is a subsequent tender issued in September 2010, that second
tender has also not been questioned before this Court
specifically. However, it needs to be pointed out that, the
resolution passed by the N.I.T. on 07/01/2011 accepting the
offer received in pursuance of that tender, has been
challenged by amending the prayer clause and by adding
grounds on 25/03/2011 and thereafter, on 14/09/2011.
8. We have heard Shri A.S.Jaiswal, learned Counsel
for the petitioners, Smt. Bharti Dangre, learned Additional
Government Pleader for Respondent Nos. 1, Shri S.K.Mishra,
learned Counsel for Respondent Nos. 2 and 3 and Shri
M.G.Bhangde, learned Senior Advocate for BVB. We have also
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perused copies of the documents sought to be relied upon by
the parties along with the affidavits filed on the record.
9. After pointing out the facts in brief, Shri Jaiswal,
learned Counsel for the petitioner, urged that there are 20
Schools in the vicinity and hence, there is no need of any new
Primary and Secondary School in the area. He contended that
the concerned area is congested one and the children in the
area have no facility of "playground" except this public utility
land and similarly, the elderly persons and the common
people have no other open space available for their daily
Morning or Evening stroll and physical exercise. He, therefore,
contends that allotment of the entire land including the
reserved land for playground to Bhartiya Vidya Bhavan is
contrary to the provisions of MRTP Act. Shri Jaiswal, learned
Counsel argued that Section 22 (c) of the said Act requires
that a Development Plan shall generally indicate the manner
in which the use of the land covered thereby shall be
regulated. In particular, it shall provide, so far as may be
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necessary, for, inter alia, proposals for designation of areas for
open spaces, play-grounds, stadium, zoological gardens, green
belts, nature reserves, sanctuaries and dairies. By reason of
section 31(6), the Final Development Plan is binding on the
Planning Authority. Under the provisions of Section 42, it is
the duty of the Planning Authority to take such steps as
necessary to carry out the provisions of the Development Plan.
10. In The Municipal Corporation of Greater
Bombay v. The Advance Builders (India) Pvt. Ltd., (1973)
75 BLR 355, the Supreme Court observed that since
development and planning was primarily for the benefit of the
public, the planning authority was under a statutory
obligation to perform its duty, in accordance with the
provisions of the Town Planning Act. Shri Jaiswal, learned
Counsel points out that, in the first tender notice inviting
offers, the area declared for School was 3850 Sq. meters and
an obligation was cast upon the successful bidder to develop
area admeasuring 13666 sq. meters as 'playground and
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garden'. The aspirant was expected to have minimum annual
turn over exceeding Rs. 10 crores in any three financial years
and net worth Rs. 5 crores. This could not be materialized
and then similar notice was again published in September
2010 and in this revised tender, the minimum annual turn
over exceeding Rs. 10 crores was maintained as it is and net
worth Rs. 10 crores as on 31.03.2010 was asked for. The
condition that the bidder must have previous experience of
running and managing or must own at least five Schools or
Colleges over past 5 years was also put as a qualification for
the bidder. He argues that - as there was no response to
March 2010 tender, the conditions needed to be relaxed, but
here, in the later invitation, the conditions were made more
stringent. Shri Jaiswal, learned Counsel contended that the
acts of N.I.T. were to favour the BVB, in particular to facilitate
the construction of the School, Sports complex, Restaurant,
garden etc. over the area including the playground earmarked
for the people in the development plan.
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11. In this background, he has invited our attention to
clause 9 of the tender notice to urge that the entire
playground as also the garden is to be used by the Private
School and thus, it no longer remains available as a public
utility land for the children residing in the locality or for the
general public throughout the day. He contends that the
conditions in the tender have also been modified later on to
suit the BVB and allotment of the land to it on 7/01/2011 is
mala fide. Our attention is invited to the admitted fact that
the father of the Chairman of the N.I.T. is on Local Executive
Committee (for Nagpur) of BVB. It is urged that, because of
this, the condition later published on 6/9/2010 shows distinct
changes to see that the projects can be allotted only to the
BVB. The learned Counsel has invited our attention to
provisions of Section 16(1)(d) of the Nagpur Improvement
Trust Act, 1936 to contend that, if really the Chairman of the
N.I.T. had abstained from meeting, in which the resolution in
favour of the BVB came to be passed by the N.I.T., it was
obligatory for the Trustees to elect somebody else as a
Chairman to preside over that part of the meeting. He
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contended that declaration of interest by the Chairman came
at the end of business transacted and the Chairman of the
N.I.T. had refused to participate only in decision made on the
subject and there is nothing on record to show that he did not
participate in deliberations for the decision. It is contended
that, because of influence of the BVB and the Chairman of
N.I.T., the condition to allot the reserved land to CBSE
approved School or then the stringent conditions like
experience and minimum number of Schools etc. came to be
added. The resolution dated 7/1/2011 passed by the N.I.T. is,
therefore, challenged as invalid and unsustainable as also
illegal.
12. Our attention is invited to the provisions of Section
22(c) of MRTP Act. The learned Counsel states that the
reservation in the Development Plan for playground is a
separate entry and the reservation for garden or park is an
independent reservation. When the land in the layout is
reserved for playground, it cannot be permitted to be used as
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garden or park. Support is being taken from the Division
Bench judgment of this Court in the case of Sarvajanik Shri
Ganeshotsav Mandal, Mumbai & Anr. vs. Municipal
Corporation of Greater Mumbai & Ors., reported in 2006
(4) Mh. L.J. 207, particularly paras 13, 14 & 20 for this
purpose. It is reiterated by learned Counsel Shri Jaiswal that
because of congested local area and availability of large
number of Schools in the locality, the common people in the
area are badly in need of a playground. It is submitted that, to
maintain standard of hygienic living in the local area and for
the safety and healthy environment, planned development of
the playground is important aspect of the town planning
Scheme. That need is rightly recognized in the Development
Plan and hence, the playground cannot be allowed to be put
to any other use - exclusively beneficial to the private party
and therefore, it cannot be allowed to be used as a playground
to BVB School. In the Sarvajanik Ganeshotsav's case (supra),
the Division Bench of this Court has declared the agreement of
entrustment of the plot by the Bombay Municipal Corporation
to the Chatrapati Shivaji Maharaj Samiti admeasuring
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8261.90 Sq. meters in Vileparle (east), Mumbai as illegal and
ultra vires and directed the Municipal Corporation to take
possession, maintain & manage the open space - as
playground. In the recent ruling in the case of Manohar
Joshi vs. State of Maharashtra and Others, (2012) 3 SCC
619, it was held that Government's action to delete the
reservation in respect of the final plot and sanction to
construct and occupy it in favour of the developer was illegal,
unjustified and in complete subversion of the statutory
requirements of the MRTP Act. The State Government and the
planning Authorities were directed to scrupulously follow the
directions and the suggested safeguards.
13. Shri S.K.Mishra, learned Counsel for the N.I.T. &
the N.M.C. stated that the petition, as filed, is not a bona fide
or genuine attempt to redress public grievance. He pointed
out that the petition has been filed on 1/12/2010 i.e. long
after the second invitation dated 6/09/2010, and still it does
not contain any challenge or reference to that tender notice.
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The effort in the petition was to have entire ground used for
playground without any reservation for the School and this
was after the Nagpur Municipal Corporation passed a
resolution to propose modification under Section 37 of MRTP
Act for this purpose. Shri Mishra argued that the Nagpur
Municipal Corporation has dropped that proposal and as the
petitioners seek something which is now contrary to the
Development Plan, it is not in the public interest. He further
contended that the proposed reservation in the Development
Plan exists since the year 2000 and it is nowhere the case of
the petitioner that the reserved land is the only playground
available in the entire area. He contended that, because of
Section 31(6) of MRTP Act, the Development Plan is binding
on the Nagpur Improvement Trust. As reservation is for the
School, the condition that such School has to be recognized by
CBSE is good and valid. He points out that no objection was
raised by the petitioners or any residents before the
Development Plan was finalized. In Writ Petition, there is only
challenge to the tender as published on 29/03/2010 and
though it has been amended subsequently twice, there is no
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express challenge to the tender as published on 6/9/2010.
14. Shri Mishra argued further that, in response to the
earlier tender, dated 29/3/2010, the only offer of Rs.1.08
Crores was received, whereas an amount of Rs.2.5 Crores was
needed for playground development. Hence, that tender
notice was cancelled and fresh tender was published on
6/9/2010. In the fresh tender, Rs.2.5 Crores are stipulated for
the School plots. He contends that the project is Public Private
Participation Project (PPP) and there is no question of any loss
to the public revenue. Though two tenders were received, only
one continued its offer on 20/10/2010 when tenders were
opened. Offer of BVB was found above the upset price as the
BVB had offered Rs. 5.31 Crores. These developments are not
being questioned in the Writ Petition. It was amended in
March 2011 to incorporate challenge to resolution dated
7/1/2011 and thereafter in September 2011. In this
background, it is contended that Section 16(1)(d) of NIT Act
is not attracted in the present facts. There were total 78
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different subjects before trustees on 7/1/2011 and only one
valid offer was available for consideration. There is no
prejudice to anybody because of that grant. Shri Mishra
invited our attention to photograph placed on record to point
out how four play-courts are to be developed in playground
within 18 months. The BVB has agreed to pay Rs. Two lakh
per year for maintenance of the playground. It is further
stated that the Chairman of the N.I.T. (Shri Sanjay
Mukherjee), against whom the allegations of bias are made,
was transferred in June 2011 and he has not been joined as a
party-in-person. Our attention is invited to the reply of N.I.T.
to amendment effected by the petitioners to point out how the
playground is to be used. Shri Mishra pointed out that the
tender also permitted consortium to be formed and hence, it
cannot be alleged that the conditions in it were tailor-made to
facilitate the BVB alone.
15. Shri Bhangde, learned Senior Counsel for BVB,
however, wants to assail the bona fides of the Writ
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petitioners. According to him, the petition is not filed in the
public interest, but the petitioners are actually puppets in the
hands of other School managements in the area. He points out
that, the cost of each tender notice was Rs.10,000/- and here,
though the petitioners have annexed both these tenders, they
have not disclosed the source from whom they got its copy.
He contended that the petitioners have not purchased the
same. Similarly, attention is invited to communications/letters
dated 25/11/2008, 7/5/2010, 7/4/2010; resolution dated
12/4/2010; copy of note-sheet produced as Annexure P-10
and also copy of impugned resolution dated 7/1/2011 to
contend that the same could not have become available to the
petitioners in the normal course. It is not surprising that
copies of the documents from public Office may come in the
hand of any private party because it may happen that corrupt
elements masquerading as public servants in the public Offices
are likely to be motivated for monetary gain, or somebody
may use undue influence in public Office to commit acts
contrary to law to favour the private parties interested to get
the work done by hook or crook. Sometimes copies of the
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documents from the public Office may be procured from
public servant as referred above, but copies of such procured
material also may expose the illegality, irrationality and
impropriety done in public Office. To that extent, the devout
act of the petitioners to procure copies of documents and
bring them to the attention of the Court may be pardonable in
public interest. The impugned letter of intent dated
18.01.2011 is also pointed out to be of similar nature. Our
attention is invited to reply filed to C.A.W. No. 1182 of 2011
to contend that appropriate stand in this respect is already
taken by the BVB on record and the petitioners have not
chosen to explain the position. The judgment of the Hon'ble
Apex Court in the case of Dr. B. Singh vs. Union of India &
Ors., reported in (2004) 3 SCC 363 is pressed into service by
Shri Bhangde to urge that, in such circumstances, no
cognizance of the controversy can be taken as P.I.L. and the
petition needs to be dismissed with heavy costs.
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16. The recent judgment delivered by the Hon'ble Apex
Court in the case of State of M.P. vs. Narmada Bachao
Andolan and another, reported in (2011) 7 SCC 639 is
pressed into service to emphasize the need of correct
pleadings in such challenge. It is contended that there is no
challenge in the entire matter to the use of reserved land for
the "playground" as garden. The use of portion of land
reserved for "playground" as garden is not fatal and the DP
reservation cannot be said to be violative thereby as user
substantially remains the same. Our attention is invited to the
judgment of the Hon'ble Apex Court in the case of Forward
Construction Co. and Others vs. Prabhat Mandal (Regd.),
Andheri and Others, reported in (1986) 1 SCC 100 to
substantiate this contention.
17. The judgment of this Court in the case of Sarvajanik
Shri Ganeshotsav Mandal, Mumbai & Anr. (supra) relied
upon by the Writ Petitioners is sought to be distinguished by
pointing out the judgment of the Hon'ble Apex Court relied
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upon by Respondent No. 4 (supra). Shri Bhangde, learned
Senior Counsel further states that the plot reserved for
playground in that case was sought to be developed into
Swimming Pool and Sports Complex and it was found
contrary to the Development Plan. Here, the earlier user as
per the Development Plan substantially continues.
18.
Shri Bhangde further points out that there is no
challenge even to the second tender published on 6/9/2010
and there is no plea that the conditions therein are tailor-
made to suit the BVB. The subsequent amendments effected
by the petitioners show that they had an opportunity to
challenge the later tender also, but the same has not been
availed. The condition to permit only CBSE School on
reserved land is also not available for challenge. According to
Shri Bhangde, there is no argument and challenge pointing
out any damage to the public interest. In this connection,
support is being taken from the judgment in the case of
Jagdish Mandal vs. State of Orissa, reported at (2007) 14
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SCC 517. By pointing out Para 21, it is urged that as a
contract is entered into between BVB and N.I.T., the scope of
judicial review under Article 226 of Constitution of India is
very limited and the challenge, as raised, does not call for any
such interference.
19. The judgment of the Hon'ble Apex Court in the case
of Directorate of Education and Others vs. Educomp
Datamatics Ltd. and Others, reported in (2004) 4 SCC 19 is
also relied upon to show as to how the terms and conditions
of tender need to be appreciated and the limited role available
to Courts of law in such matter. The learned Counsel states
that the entire challenge on this count is without any merit.
20. Inviting our attention to the proceedings of the
meeting of N.I.T. dated 7/1/2011, it is contended that the
relationship sought to be established between the Chairman of
the N.I.T. and the BVB Society is too remote. Again, reply filed
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to C.A.W. No. 1182 of 2011 is pressed into service for the said
purpose. BVB is old society registered at Bombay and
subsequently, under the Bombay Public Trusts Act. The
resolution was passed on 15/10/2010 at Bombay to
participate in tender process of the N.I.T. and the letter of
intent was also forwarded to the BVB at Bombay. The BVB has
come into picture only after publication of tender notice and
the decision to modify tender conditions. Similarly, decision to
accept offer of BVB and to issue it a letter of intent is taken by
the Board of Trustees of the N.I.T. and not by its Chairman.
These trustees are members of the N.I.T. and there is no
allegation of mala fides against any of them. It is urged that
there were total six trustees. In this situation, it is contended
that, only for one subject for which there was only one offer,
complete & valid in all respect; it was legally not necessary for
the Chairman of the N.I.T. to recuse himself. In any case, it
was not necessary for the other trustees to appoint any other
person as the Chairman while considering the said subject.
The judgment of the Hon'ble Apex Court in the case of Javid
Rasool Bhat and Others vs. State of Jammu & Kashmir and
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Others reported in (1984) 2 SCC 631 is pointed out to show
how bias, in such a matter, needs to be looked at. It is
contended that here, the Chairman has not participated in
deliberations and was not party to the decision. His mere
physical presence, therefore, was not sufficient to be
construed as a fact to influence the decision making process.
The Full Bench judgment of Madhya Pradesh High Court in
the case of The State of Madhya Pradesh, through Local
Self Government Department, Bhopal and Others vs. Beni
Pd. Rathore and Others reported in AIR 1996 M.P. 101 is
pressed into service for evaluating presence of the Chairman
in the meeting on 7/1/2011. The learned Counsel states that,
in this situation, merely because another person is not elected
as a Chairman under Section 16(1)(d) of the NIT Act, that by
itself is not sufficient to vitiate the resolution dated 7/1/2011.
21. Lastly, our attention is invited to the fact that, in
the said area, there is no playground since the last about 10
years and the land though reserved, is having only shrubs and
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wild grass grown over it; it cannot be, therefore, used for any
purpose. If the petitioners were/are really interested and
acting in public interest, they must explain as to why they
have not approached any of the Authorities or this Court
earlier in point of time for getting the said land cleared and
for its use as per the Development Plan. Shri Bhangde,
therefore, submits that the petition suffers from laches.
22. Shri Jaiswal, learned Counsel, in reply, has
contended that the residents of Trimurti Nagar are entitled to
have playground and that playground cannot be used for
School. The judgment of the Hon'ble Apex Court in the case of
A. Abdul Farook vs. Muncipal Council, Perambalur and
Others reported in (2009) 15 SCC 351 is relied upon to urge
that, in such matters, Court cannot adopt approach which is
too technical. It is reiterated that, in the latter tender, instead
of relaxing the terms and conditions, the same have been
made more harsh only to select and favour the BVB. None of
the documents produced on record by the petitioners are
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pointed out as incorrect or false & hence, the BVB should not
hide behind technicalities. It is also argued that the Chairman
of the N.I.T. duly communicated his interest in awarding
tender to the BVB on 7/1/2011 and his presence, therefore,
has influenced the entire proceedings. He, therefore, sought
for an order in favour of the residents of Trimurti Nagar. Shri
Jaiswal argued that the petitioners are not late in approaching
the Court under the circumstances.
23. Shri Jaiswal, learned counsel has placed reliance on
the case of A. Abdul Farook (supra). Paragraph no.33
contained observations of Hon'ble Apex Court that, in a public
interest nature litigation before it, it is not necessary for the
Court to abide by strict rules of pleadings and even if it is
found that the petitioners are busy bodies, the Courts can,
while discharging them, proceed to deal with the Public
Interest Litigation suo motu. Earlier judgments have been also
noted to show that the Public Interest Litigation is inquisitorial
in nature, while private litigation is adversarial. In Public
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Interest Litigation, Court is not supposed to strictly follow the
ordinary procedure. The Hon'ble Apex Court found permanent
arches allowed to be erected by Municipal Council in political
interest and not in public interest. Shri Jaiswal, Learned
Counsel, making a reference to the ruling in Jagdish Mandal
(supra) argued that, in the present case also, Judicial review
is invoked on the ground that the process adopted by the
N.I.T. was intended to favour the BVB and it is arbitrary,
mala fide and irrational adversely affecting the public interest.
He submitted that, in such cases, commercial functions like
evaluation of the tenders, awarding of Contracts if mala fide
and not in the public interest can be interfered with on the
principles of equity and justice. Administrative action has to
be fair, rational, and reasonable without any bias or special
favour to any private party at the cost of public interest. He
submitted that Public Interest Litigation ought not to be
dismissed or defeated on technical ground.
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24. Shri Bhangde, learned Senior Counsel has relied
upon the later judgment of larger bench of the Hon'ble Apex
Court in the case of State of M.P. vs. Narmada Bachao
Andolan (supra) to urge that the law on pleadings is also
applicable to Public Interest Litigation. Perusals of paragraph
nos. 8 to 11 of the said judgment show the purpose of
pleadings and issues. The Hon'ble Apex Court has observed
that - if any factual or legal issue, despite having merit has
not been raised by the parties, the Court should not decide the
same, as the opposite Counsel does not have a fair
opportunity to answer the line of reasoning adopted in that
regard and such a judgment may be violative of principles of
natural justice. In paragraph no.12, the Hon'ble Apex Court
has observed that every technicality in procedural law is not
available as a defence in matters of grave public importance.
In paragraph no.13, it is observed that there must be sufficient
material in petition on the basis of which the Court may
proceed. Public Interest Litigation must have factual
foundation to show basis on which litigant is claiming relief
and information furnished by him should not be vague and
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indefinite. Proper pleadings are necessary to meet the
requirements of principles of natural justice. Even in the
Public Interest Litigation, the litigant cannot approach the
Court to have a fishing and roving enquiry. In the Public
Interest Litigation before the Hon'ble Apex Court, an
impression was given that some drastic steps would be taken
by the Authorities causing great hardship to the large number
of persons. The petition, however, did not disclose the factum
of number of persons who had already vacated their houses
and handed over possession. Contention was that urgent
measures were required to be taken by the Courts and the
Hon'ble Apex Court has noted that there was no material to
adjudicate upon the issue involved in the Public Interest
Litigation. The High Court, in this background, had directed
the Authority to submit report on rehabilitation work and the
Authority, vide its report, then pointed out a huge amount of
several thousand Crores already invested and disbursed.
Majority of the families had already shifted and an amount of
Rs. 9924 Crores was already disbursed amongst the claimants
and the sum of Rs. 589 Crores was only left to be disbursed.
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The Hon'ble Apex Court has noted that there were no
pleadings before the High Court on the basis of which a Writ
Petition could have been entertained and decided and it
deserved rejection at the threshold. It is also noted by the
Hon'ble Apex Court that, even in the Public Interest Litigation,
in absence of such factual matrix, similar course can be
followed by the Courts. This judgment, therefore, shows total
absence of pleadings on facts vital for consideration &
completion of more than 95% of rehabilitation has weighed
with the Hon'ble Apex Court. Such is not the position here.
25. In Dr. B. Singh (supra), the Hon'ble Apex Court has
considered the issue of bona fides of petitioner after observing
that time has come to weed out the petitions which though
titled as 'Public Interest Litigation', are in essence something
else. The Courts at times entertain such private disputes which
results in wasting of valuable judicial time. It has been noted
that, in the service matters, Public Interest Litigations are not
entertained. The Hon'ble Apex Court has noted that, such
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Public Interest Litigation could have been thrown out by the
High Court. Tendency is growing slowly to permit setting in
motion Criminal law jurisdiction often unjustifiably just for
getting publicity and giving adverse publicity to the opponent
is also noted. In the process, it is also observed that Official
documents are being annexed without even indicating as to
how the petitioner could possess them. The story of
accidentally finding such documents was not believed. Where
such petitioner does not have even a remote link with the
issue involved, the Hon'ble Apex Court has stated that it
becomes imperative for Court to lift the veil and uncover the
real purpose of the petition and the real person behind it. The
issue before the Hon'ble Apex Court was about a petition
purported to have been filed questioning the propriety of a
person being considered for appointment as a Judge.
26. In view of ratio in the ruling in Bangalore
Medical Trust vs. B.S. Muddappa and Ors., AIR 1991 SC
1902, it cannot be said that the present issue cannot form a
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subject matter of scrutiny in the Public Interest Litigation.
The details of reservation with respective earmarked area are
already mentioned by us above. It is the stand of N.I.T.
that it is not required to obtain development permission
from the Nagpur Municipal Corporation in respect of
developments undertaken by it as a Development agency and
the State Government through its notification dated 27th
February, 2002, has clarified that it can continue functioning
as a Planning Authority for such developments undertaken
by it. We find that the notification issued continues the N.I.T.
for limited purpose in the areas transferred to the Municipal
Corporation. Present area i.e. Bhamti Parsodi area is one
such area. Though Writ petitioners have raised this issue in
Para no.4 of their Writ Petition, no arguments about absence
of authority in the Nagpur Improvement Trust are advanced
by them. The N.I.T.'s status as the Planning Authority for
the area concerned is not in dispute as we have
considered the arguments advanced on behalf of the State of
Maharashtra and the Nagpur Municipal Corporation in this
respect. However, in affidavit dated 11/8/2011 sworn by
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Ravindra Rambhau Kumbhare, Additional Municipal
Commissioner, it is stated that "the Nagpur Improvement
Trust, which was Planning and Development Authority in
respect of these reserved lands prior to 27th February, 2002,
had submitted objection to the proposed Development Plan".
The effort made by citizens to secure entire land from Khasra
No. 12 as playground by deleting reservation of Primary
School and Secondary School and for that purpose, to seek
minor modification in the final Development Plan as per
Section 37 of the MRTP Act could not succeed. But then,
details of those 20 Schools in Para 11 of the petition are not in
dispute. The Writ Petitioners as also the respondents have not
invited attention of the Court to the proceedings of pre-bid
meeting conducted by the Chairman of the N.I.T. on
17/9/2010. Two of the Institutes interested in submitting
tender are reported to have participated in it. However, the
minutes do not record their names. First clarification given by
the N.I.T. is about area of land under School project. It is
stated to be revised to 4125.50 sq. meters or 1.02 Acres. This
seems to be because of requirement of CBSE that the plot of
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School to be recognized by it must have area above one Acre.
The provision in clause 5.8(2) of the tender document has
been amended accordingly and the reserved price has also
been modified to Rs.2.75 Crores. The timings for use of
playground and garden for School are revised from morning
8.30 a.m. to 4.30 p.m. in the evening. For general public, the
time given is 5.00 a.m. to 8.00 a.m. and 5.00 p.m. to 9.00
p.m. T.C. (Terms and Conditions) and charges for the use of
playground and garden for School are stated to be Rs.2 lakh
per year with 5% increase per year over the previous year and
the N.I.T. has agreed for arranging maintenance of garden.
Ownership of playground and garden is stated to be with the
N.I.T. No ground floor construction is permitted except for
staircase and lift. The requirement of 4.50 meter from Ground
level to the beams of stilt parking is also clarified. The
question about grant of relaxation for marginal space for
better planning of School is answered by stating that
relaxation shall be allowed as per the Development Control
Rules. The detailed specifications and estimate for the
development of playground and garden is stated to be
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enclosed along with some communication as 'Annexures Y &
Z'. One of the queries required the N.I.T. to specify timing of
restaurant for general public. This timing is specified to be
from 5.00 p.m. onwards.
27. A perusal of tender document vide clause 5.5.2(xi)
shows that 10 seats in the School every year are to be filled in
exclusively on the recommendations of the Chairman of the
N.I.T. The tender document shows the 'playground and
garden' as Project A and the 'Primary and Secondary School'
as Project B. The perusal of clause 5.5.2 (xii) shows that if the
bidder fails to comply (Garden project), it would be
considered as major breach of terms and conditions. Thus,
failure to comply with the playground part is not treated as a
major breach by the N.I.T..
28. A perusal of minutes of pre-bid meeting with tender
document, therefore, reveals a further reduction in the area of
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playground. The area for school is increased and some area of
playground is also allowed to be developed as a garden. In
Section 22(c) of the MRTP Act, playground is an independent
reservation implying thereby that it cannot be construed to
mean reservation for park or garden. In other words, it may
require minor modification under Section 37 of the MRTP Act.
The garden as also the playground is to be used by School
during the day time and it becomes available to
common/general public only after 5.00 p.m. Thus, children in
the locality, who are real beneficiaries of that Development
Plan reservation, are supposed to play only between 5.00 a.m.
to 8.00 a.m. and 5.00 p.m. to 9.00 p.m. Insofar as the garden
is concerned, the very same time limits apply. Not only this,
but indirectly a commercial user is permitted and a restaurant
is allowed to come up either in the playground or in the
garden. That facility perhaps is to be used by the School and
the person running it can cater to general public after 5.00
p.m. Such person will obviously be a contractor on
commercial basis. The private School will not run a restaurant
for general public. Such commercial user and such
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exploitation of public property or garden has not been
communicated to general public as there is no such mention
in documents inviting offer. Clause 5.3 of tender describes the
entire area to be purely residential area. Not only this, but
availability of area as per CBSE requirement is also not
disclosed to general public. It cannot be presumed that other
institutions having CBSE affiliation and running Schools in the
Country would not have been interested in opening a School
in the city, had they known that land as required by CBSE
with such facilities is available for them. It is equally
important to note that this meeting dated 17/9/2010 has been
chaired by the Chairman of the N.I.T. against whom there are
allegations of bias and partiality. As per the tender document,
cost of project A (playground & garden) to be borne by BVB is
Rs. 2.50 Crores minimum & it is as per N.I.T.'s 2008-09 CSR.
But then, the offer on that basis & for that sum - is being
accepted in 2010--2011 i.e. almost 2 years later. No pains are
taken to point out CSR rates for 2010-2011. It also needs to
be mentioned that the last date of E-submission of tender was
5/10/2010 & the opening has been on 5/10/2010. But then,
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the body of BVB at Mumbai did resolve to participate in
tender process on 15/10/2010.
29. Shri Jaiswal, learned Counsel has relied upon the
Division Bench judgment of this Court in the case of
Sarvajanik Shri Ganeshotsav Mandal, Mumbai (supra). In this
judgment, an open space reserved for Development Plan or
playground was being put to use as a park. The Hon'ble
Division Bench has noted that ordinary meaning of
"playground" is an outer area for children to play on or on
piece of land set up for open air recreation, specially for
children or then one connected with School. The judgment of
learned Single Judge of this Court in the case of C.R. Dalvi
and Others vs. The Municipal Corporation for Greater
Bombay and Others reported in 1987 Mh.L.J. 373 (= 1986
(3) Bom.C.R. 624) holding that such land reserved in the
Development Plan cannot be utilized for any purpose other
than for playing of children and similar recreational activities
is also noted by the Division Bench. In Para 20, the Division
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Bench then notices that playground, swimming pool,
gymnasium and park even though covered under the head
Recreational grounds and facilities, is a separate and distinct
"use" category and cannot be put to interchangeable use
wholly or partly. The Division Bench, therefore, found that
swimming pool can never be covered by expression
"playground" or vice versa. The Division Bench concluded that
the land reserved for playground cannot be permitted to be
used for the purpose of swimming pool and sports complex.
30. Shri Bhangde, learned Counsel has relied upon the
judgment in the case of Forward Construction Company
(supra), where the reservation was for bus depot and the land
was sought to be put to use by compounding bus depot with
commercial activity of a shopping complex. The plot was
situated in commercial road and was acquired by the
Municipal Corporation for bus depot and ultimately, was used
for bus depot with added commercial purpose. The Hon'ble
Apex Court held that it did not constitute "change". It is noted
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that general meaning of word change is "to make or become
different, to transform or convert". If the user was to be
completely or substantially changed, only then the prior
modification of Development Plan was necessary. In the facts
before the Hon'ble Apex Court, user of plot was not changed.
It was being used as a bus depot with commercial use to
augment income of Corporation for public purpose. It is,
therefore, obvious that a plot in commercial area acquired for
bus depot was being used not only for bus depot but also for
commercial purpose. Both users were legal and also
acceptable.
31. The judgments on which the respective Counsel have
placed reliance show that where original reservation is not in
any way increased and an activity incidental thereto is taken
up, the Hon'ble Apex Court has found that such an activity is
not in violation of Development Plan reservation. Here, the
N.I.T. has limited powers of continuing with development
already undertaken and in case, area of respective reservation
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i.e. under DP reservation is to be changed, it must obtain
previous approval of Nagpur Municipal Corporation. Similarly,
its changing purposes by putting part of land to use as garden
or then for commercial purpose as restaurant, the object
behind providing the land for playground is definitely
frustrated. For use of certain facilities in playground, the
children/their parents are supposed to pay. Charges for use of
tennis court, throw ball, basket ball, skating rink, table tennis,
craft etc. for equipments & maintenance of these Courts are to
be worked out by the BVB and the NIT. Only playground
would be available to children free of costs. We are informed
that the N.I.T. and not the BVB would run the restaurant. In
the facts before this Court, the area of playground is being
reduced; a garden though not envisaged in Development Plan
is being introduced & is proposed in the part of playground.
Similarly, commercial user by allowing restaurant open to
public is also being permitted. The area for the school cannot
be increased so as to change the reserved playground area. It
is, therefore, obvious that all these changes cannot be viewed
as beneficial to the residents of the area and in this situation;
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test of substantial user cannot be applied.
32. This brings us to the question regarding presence of
the Chairman of the N.I.T. during the meeting. The
proceedings no doubt record that the interest which the
Chairman of the N.I.T. had in the subject was disclosed by him
and thereafter, on 7/1/2011, the decision has been taken. The
minutes record the history and in the meeting of trustees,
nobody appears to have either moved that subject or seconded
it. But, at the end of minutes, the fact of disclosure of interest
is recorded. The Chairman had disclosed that his father is a
Committee Member of BVB for Nagpur area and hence, the
Chairman would not participate in taking decision and the
Trustees, therefore, had to take appropriate view on merits. It
is further recorded that this fact was noted by trustees and
then approval was given to allotment of 4125.50 sq. meters.
of land on premium of Rs.281 lakh to BVB.
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33. Upon perusal of the judgment in the case of Javid
Rsool Bhat (supra), it reveals that the contention was that the
selection of candidates was vitiated because of presence of
father of one of the candidates on Selection Committee. The
Principal of Medical College, Srinagar, whose daughter was a
candidate for admission to Medical College, had informed the
Selection Committee at the very outset about it and had also
stated that he would not be concerned with written test and
would not be present at the time of interview of his daughter.
The other members of the Selection Committee accepted and
did not think it necessary to advise the Government to appoint
a substitute member of Selection Committee. The Hon'ble
Apex Court has noted that the procedure adopted by the
Selection Committee and the members concerned was not in
accordance with well known and accepted procedure. It is also
noted that, in the absence of mala fides, it would not be right
to set right the selection merely because one of the candidates
happened to be related to the Member of the Selection
Committee. In Para 14, the Hon'ble Apex Court has noted the
facts in the case of A.K. Kraipak and Others vs. Union of
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India and Others reported in AIR 1970 SC 150 and then
concluded that, in the facts before it, when other candidates
were interviewed, the Principal was not aware of the marks
obtained either by his daughter or by any other candidate and
there was no occasion to suspect his bona fides even remotely.
There was not even a suspicion of bias and hence, there was
no violation of principles of natural justice.
34. In State of M.P. Through Local Self Govt. Department,
Bhopal (supra), the Full Bench of Madhya Pradesh has
considered similar aspect in case of meeting of no confidence
and it was noted that requirement of law to preside over
meeting if President is present, contemplated not mere
physical presence but presence coupled with readiness to
preside over the meeting and in the absence of President or in
the event of his declining, it was for the Vice President to
preside over the meeting.
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35. In the facts which we have noticed, the decision as
to area under reservation was taken at the time of pre-bid
meeting. The question remains disputed as to whether there
was given a public notice for the knowledge of general public
in the newspapers of wide circulation in the area concerned.
The premium amount was proportionately raised, but it was
not communicated to the general public. That meeting was
conducted by the Chairman himself. The material changes and
diversions from Development Plan are already noted by us
above and absence of any details on the issue is also noted by
us. We, therefore, find that, in such a situation, it was
obligatory for the N.I.T. as also the BVB to bring on record the
circumstances in which the changes were brought and
accepted. The N.I.T. has remained satisfied by throwing
burden on the shoulders of the petitioners and by contending
that, as necessary details are not pleaded, this Court cannot
take cognizance of the matter as a Public Interest Litigation.
Their bona fides have been questioned by pointing out the
production of documents which normally could not have
reached them. In these facts, we do not find that production
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of documents by itself show any oblique motive. The issue
brought by them before the Court is in public interest and
they have succeeded in pointing out how a development plan
reservation is being violated.
36. The judgment of the Hon'ble Apex Court in the case
of Dr.B.Singh (supra) considers the filing of PIL in service
matters. We find observations therein are not applicable
directly in the context of the present facts. In any case, we are
not in a position to find out any oblique motive with the
petitioners who represented the residents of the area. The
existence of about 20 Schools in the vicinity of the area and,
therefore, no need for any additional School is already on the
record. Therefore only, the Planning Authority had proposed
minor modifications under Section 37 of the MRTP Act by
deleting reservation for School by adding said land to
playground. However, later on, the said Authority viz., N.M.C.
has gone back on its proposal.
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37. The case of State of Madhya Pradesh vs. Narmada
Bachao Andolan (supra) shows the application of law of
pleadings. In the present matter, necessary material is already
on record and the petitioners have sufficiently pleaded their
case of violation of development plan reservation. The first
question which arises for consideration is whether in such
circumstances, when several Schools are available in the
vicinity, the State Government or any other Authority which
has to permit the School to be opened, is duty bound to grant
permission to the BVB merely because of Development Plan
reservation. The other question is whether the Planning
Authority in the light of provisions of Section 31(6) of the
MRTP Act can alter the area of land under reservation and
whether the N.I.T., who has been given limited role, can do so
without recourse to provisions of Section 37 thereof. It is also
not understood as to how a Public Authority like N.I.T. can
seek reservation of 10 seats from BVB in such matters. All
these issues definitely are issues in larger public interest.
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38. Shri Bhangde, learned Senior Advocate has
contended that the Courts have limited jurisdiction while
appreciating the terms and conditions of the tender. A perusal
of judgment in the case of Directorate of Education vs.
Educomp Datamatics Ltd. (supra), particularly paras 11 & 12
show that terms and conditions are prescribed by the
competent Authority bearing in mind the nature of contract
and such Authorities are best judges to prescribe the same. It
is not for the Courts to comment whether better terms and
conditions could have been prescribed. In such matters, such
Authorities need to be given a free hand. The State
Government can choose its own method to arrive at a decision
and fix its own terms of invitation to tender and that is not
open to judicial scrutiny. However, the Hon'ble Apex Court
has also found that the Court can examine decision making
process.
39. In the case of A. Abdul Farook (supra), the Hon'ble
Apex Court has held that, in the Public Interest Litigation, it is
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not necessary for the Courts to abide by strict rules of
pleadings and such litigation is inquisitorial in nature. The
question before the Hon'ble Apex Court was regarding
erection of arches and no objection Certificate issued by
Municipality to construct the same on the condition that there
would be no hindrance to traffic. The Secretary of District
Consumer Council had filed Writ Petition for issuance of Writ
of Mandamus forbearing the respondents from putting up
such arches. There was also challenge by a Ward Member,
who sought certiorari for quashing no objection Certificate.
The learned Single Judge dismissed that Writ Petition. In turn,
an appeal was preferred. The Division Bench of the High
Court dismissed that appeal as also Writ Petition and then the
Secretary of District Consumer Counsel and Ward Member
approached the Hon'ble Apex Court. The Apex Court allowed
the appeal. It is noted by the Hon'ble Apex Court in Para 37
that though the Authorities may grant permission to construct
such permanent structure, there must be public interest in
carrying it out and not any private interest or interest of any
political party. The judgment, therefore, shows that -
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whenever a public interest is found, the Court can interfere in
the Public Interest Litigation without bothering for technical
objections, as attempted to be raised by before us.
40. In the case of State of Uttaranchal vs. Balwant
Singh Chaufal and Others, reported in AIR 2010 SC 2550
[=(2010) 3 SCC 402], the Hon'ble Apex Court has laid down
certain norms out of it as under :-
"(3) The courts should prima facie verify the
credentials of the petitioner before entertaining a
P.I.L. (4) The court should be prima facie satisfied
regarding the correctness of the contents of the
petition before entertaining a PIL. (5) The court
should be fully satisfied that substantial public
interest is involved before entertaining the petition.
(6) The court should ensure that the petition which
involves larger public interest, gravity and urgency
must be given priority over other petitions.(7) The
courts before entertaining the PIL should ensure that
the PIL is aimed at redressal of genuine public harm
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or public injury. The court should also ensure that
there is no personal gain, private motive or oblique
motive behind filing the public interest litigation. (8)
The court should also ensure that the petitions filed by
busybodies for extraneous and ulterior motives must
be discouraged by imposing exemplary costs or by
adopting similar novel methods to curb frivolous
petitions and the petitions filed for extraneous
considerations. "
41. While tracing the history of Public Interest
Litigations in the Country, Hon'ble Apex Court noted that the
Public Interest Litigation is an extremely important
jurisdiction exercised by the Supreme Court and the High
Courts. The Courts in a number of cases have given important
directions and passed orders which have brought positive
changes in the Country. The Courts' directions have
immensely benefited marginalized sections of the society in a
number of cases. It has also helped in protection and
preservation of ecology, environment, forests, marine life,
wildlife etc. The Court's directions to some extent have
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helped in maintaining probity and transparency in the public
life. The Hon'ble Apex Court, while exercising its jurisdiction
of judicial review, realized that a very large section of the
Society, because of extreme poverty, ignorance,
discrimination and illiteracy, had been denied justice from
time immemorial and in fact, they have no access to justice.
Predominantly, to provide access to justice to the poor,
deprived, vulnerable, discriminated and marginalized sections
of the Society, the Hon'ble Court has initiated, encouraged
and propelled the Public Interest Litigation. The litigation is
upshot and product of Hon'ble Apex Court's deep and intense
urge to fulfill its bounden duty and Constitutional obligation.
The Courts expanded the meaning of 'right to life' and 'liberty
guaranteed under Article 21 of the Constitution'. The rule of
'locus-standi' was diluted and the traditional meaning of
'aggrieved person' was broadened to provide access to justice
to a very large section of the Society which was otherwise not
getting any benefit from the judicial system. In paragraph 36,
the Hon'ble Apex Court observes that, in very few cases, the
Indians in large numbers are seeking remedies in Courts
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through collective proceedings, instead of being driven to an
expensive plurality of litigations, is an affirmation of
participative justice in our democracy. The Hon'ble Court
states that the narrow concepts of 'cause of action', 'person
aggrieved' and individual litigation are becoming obsolescent
in some jurisdictions.
42. Thus, there cannot be any estoppel or acquiescence
in such matters by local residents when this Court has found
that the cause presented to it is public cause & cognizance is
taken in larger public interest. The limitations laid down by
the Hon'ble Apex Court can not enable the wrongdoers &
manipulators to hide behind the technicalities or by
continuing to indulge in activities prejudicial to public at
large. In Mohd. Aslam @ Bhure v. Union of India and
Others, (2003) 4 SCC 1, the Hon'ble Apex Court has
considered the technical objections raised in the situation
when it has treated letters, telegrams or postcards or news
reports as Writ Petitions. In such petitions, on the basis of
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pleadings that emerge in the case after notice to different
parties, relief can be given or refused. Therefore, the Court
should not approach matters where public interest is involved
in a technical or a narrow manner. Particularly, when the
Court has entertained the petition, issued notice to different
parties. It would not be appropriate for the Court to dispose
of the petition on such grounds. In the proceeding before the
Hon'ble Apex Court initiated as a Public Interest Petition,
several reliefs were claimed, but after the interested parties
were impleaded and their pleadings were put- forth, the
Hon'ble Apex Court gathered what crystallized there from as
the controversy involved. The ruling in the case of Jagdish
Mandal (supra) laying down scope of judicial review in
award of contracts is, therefore, not attracted nor decisive in
the present facts.
43. In this situation, we find that the N.I.T. and the
N.M.C. have not made clean breast of matter. They, along
with the BVB, are trying to take shelter behind technicalities.
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Violation of final Development Plan and injury to rights of
local residents, for whose benefit the reservation exists, is
sufficiently clear and needs redressal in the public interest.
The State of Maharashtra has not found it necessary and
convenient to clarify the position as to the use and need for
the playground pursuant to the Development plan. We find
that the e-tender floated by the N.M.C. does not depict clear
position which the N.M.C. has revealed in pre-bid meeting on
17/9/2010. We, therefore, must quash the process
undertaken by the N.M.C. including allotment effected in
favour of BVB on 7/1/2011. The common people mostly
belonging to poor, weak, disadvantaged Society sometimes
are ignorant due to their social and economic
backwardness/difficulties. They may not be able to come
forward to the Court to enforce their fundamental and legal
rights guaranteed in favour of the citizens. In such a case, any
bona fide litigant can be allowed to come forward to protect
public and social interest and vindicate the cause of justice to
redress public injury. Public Interest Litigation has a great
potential as it enables the Court to see to it that justice must
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reach to doors of all those citizens in the area who could not
come to the Court due to their socio-economic difficulties. In
our view, the public interests lies in the reservation and
preservation of open spaces for "playground". Such public
interest cannot be sacrificed by transferring such sites to
private persons interested in the playground for conversion of
it to some other different user in a venture to establish their
own sports complex, restaurant, swimming tank, garden etc.,
where such private party is motivated with a view to earn
monetary gains/profits out of its project. Any such act by the
Planning Authority to transfer the playground to the private
party interested to earn pecuniary gains out of it, instead of
maintaining the playground as mentioned in the
Development Plan in the larger public interest for the benefit
of common people, would be an act contrary to the legislative
intent and inconsistent with its statutory obligations.
Furthermore, it would be in direct conflict with the
Constitutional mandate to ensure that any State action is
inspired by the basic values of individual freedom and dignity
and addressed to the attainment of a quality of life which
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makes the guaranteed rights a reality for all the citizens/local
residents irrespective of their socio-economic handicaps.
Every action of the local Planning Authority must be informed
by a reason, free from arbitrariness and discrimination.
Playground meant for the residents of the area cannot be
allowed to be bartered away and converted as a club/sports
complex with restrictive user meant for handful of rich people
in the society. It is duty of the local Authority to maintain the
playground for the benefit of common people who are mainly
residents of the surrounding area. This is larger public
interest. Funds are required to be generated for such public
purpose; want of funds cannot be an excuse for the local
Planning Authority to shirk its statutory duty to maintain the
playground and furthermore, there is no justification to
deviate from the final Development Plan to transfer such
public property to the private hands interested in earning
monetary profits out of it.
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44. In our view, in the facts and circumstances of the
present case, user of the plot of land reserved as a
"playground" under the Development Plans cannot be
deviated for any other purpose other than the reserved
purpose of the "playground" as determined in the final
Development Plan. It is needed for the children in the area
and for recreational activities for citizens. In these days, the
thickly populated urban areas in the City need planned and
controlled development and there is dearth of adequate open
spaces for the playgrounds in the City, where children of the
local residents can play and have an opportunity to train
themselves and undertake career in major outdoor Sports like
Cricket, football, hockey etc. or at least to maintain their
physical fitness at satisfactory level. The nation needs best of
talent in major Sports to shine on behalf of India at
International level. Such playgrounds, as planned in Town
Planning Scheme should sub-serve the need if kept available
to children of the local residents in the urban areas as well,
free of costs and at various places in the city as originally
planned in the Scheme under the MRTP Act. The State or
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instrumentality of the State (Art.12) cannot act in
unreasonable, arbitrary manner, to modify the final
Development Plan with a view of entering into an
agreement or otherwise causing injury or harm to the Public
interest flowing from its unjust and unreasonable conduct.
Reservation as to "playground" mentioned in the Final
Development Plan pursuant to the Town Planning Scheme
under the MRTP Act declared by the State, which is binding
on the Planning Authority, cannot be allowed to be defeated
to favour the private party in an agreement. We, therefore,
quash and set aside the tender process to the extent of
allotment of the "playground" area by the N.I.T. to the BVB
because the learned Counsel Shri A.S.Jaiswal appearing on
behalf of the Writ Petitioners, during the hearing before us,
has shown some degree of latitude to the challenge of tender
process between the BVB and the N.I.T. and he submitted
that the Writ Petitioners do not want to press the challenge
for validity of allotment of the land to the BVB, restricted for
the purpose of starting the Primary and Secondary School as
planned by the N.I.T. as a local Planning Authority. While
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the learned Senior Advocate Shri M.G.Bhangde expressed
apprehension that the BVB may not be able to run the School
without availability of the playground for their school
children. We must hasten to clarify that the playground
reserved in the Development Plan can be used for the benefit
of all School going children in the School of the BVB as well
as the children of the residents in the surrounding urban area
with unrestricted and free entry for the common people in
the area for use of the playground in public interest. In
return, for the use of the playground for their School during
the School hours, we expect the BVB to assist the local
Planning Authority - N.I.T. by extending financial help and
cooperation for cleanliness, maintenance and upkeep of the
playground in play-worthy condition for its proper use. The
tender process to that extent shall stand as valid. Rule is
made absolute accordingly. No order as to costs.
JUDGE JUDGE
jaiswal
