Sanjay Ratnakar Zinje vs The State Of Maharashtra And ...
2016 Latest Caselaw 7220 Bom

                                                                           PIL 75/16   
      
                                        - 1 -

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                         BENCH AT AURANGABAD               
                                               
             PUBLIC INTEREST LITIGATION NO.75/2016




                                                
    Sanjay S/o Ratnakar Zinje,
    Age:54 Years,
    Occupation: Social Work




                                               
    and Business,
    R/o Chitale Road,
    Near Nehru Market,
    Ahmednagar.                  
                       ...Petitioner..




                                       
         Versus                   
    1] The State of Maharashtra 
    (Through it's Principal Secretary)
                                 
    Urban Development Department,
    Mantralaya, Mumbai-32.

    2] The Ahmednagar Municipal Corporation,
      

    (Through it's Municipal Commissioner),
    Ahmednagar.
   



    3] The City Engineer,
    Ahmednagar Municipal Corporation,
    Ahmednagar.





    4] The Town Planner,
    Ahmednagar Municipal Corporation,
    Ahmednagar.

    5] The Assistant Director of 





    Town Planning,
    Ahmednagar Municipal Corporation,
    Ahmednagar.

    6] Shripad S/o Shankar Chhindam,
    Age:33 years,
    Occupation: Business and Corporator,
    R/o Banesaheb Patangan,Opposite Santoshi Mata
    Mandir,Satbhai Galli,Ahmednagar. 
                               ...Respondents... 




         ::: Uploaded on - 19/12/2016           ::: Downloaded on - 20/12/2016 00:33:53 :::
                                                                               PIL 75/16   
      
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                              .....




                                                                           
    Ms.P.S.Talekar, Advocate for petitioner.
    Smt.A.V.Gondhalekar, AGP for the State.
    Shri V.S.Bedre, Advocate for Respondent No.2. 




                                                   
                              .....
      
                                CORAM: S.V. GANGAPURWALA &
                                        K.L. WADANE, JJ. 

DATE: 15.12.2016

ORAL JUDGMENT (Per S.V. Gangapurwala, J.):

1] The petitioner assails the resolution dated

20.2.2016 passed by the standing committee of Ahmednagar

Municipal Corporation so also the tender notice issued

for development of Nehru Vegetable Market and Shopping

Complex at Chitale Road, Ahmednagar. Further directions

are sought against the Municipal Corporation, Ahmednagar

to develop Nehru Vegetable Market and Shopping Complex

at Chitale Road on its own rather than on FBT basis.

2] Miss.P.S. Talekar, learned counsel for the

petitioner submits that the petitioner is a resident of

Ahmednagar. The standing committee of Ahmednagar

Municipal Corporation passed a resolution on 20.2.2016

thereby resolving to develop on FBT basis Vegetable

Market and Commercial Complex wherein the premium was

fixed at Rs.2,28,60,837/-. The learned counsel submits

PIL 75/16

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that in view of the provisions of Sections 79(C) and

79(D) of the Maharashtra Municipal Corporations Act, it

is only with the sanction of the Corporation, the

Commissioner may lease, sell, let out on hire or

otherwise convey any property, movable or immovable

belonging to the Corporation. The general body would

constitute the Corporation. The standing committee does

not have any authority to pass any such resolution in

this regard. According to the learned counsel, the

general body has not passed any such resolution. In

absence of the resolution being passed by the general

body, the Commissioner could not have floated the said

tender.

3] According to the learned counsel, the action of

the Commissioner in floating the tender on the basis of

the resolution passed by the standing committee de hors

taking general body into confidence is illegal, without

authority and void ab initio. According to the learned

counsel, the general body had earlier passed a resolution

on 15.3.2013 that said Vegetable Market and Commercial

Complex should be constructed by the Corporation on its

own. Prior to that, on 13.12.2011 also, a resolution was

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passed by the standing committee. The learned counsel

further submits that the general body had further passed

a resolution allocating the funds on 5.7.2014. The

standing committee could not have passed a contrary

resolution. The learned counsel submits that even the

resolution passed by the standing committee does not

stand to the test of the Development Control Rules. The

basement can never be used for any business purpose

except parking. The said resolution of the standing

committee is also not in consonance with the building

bye-laws and the Development Control Rules. The learned

counsel submits that this illegal resolution passed by

the standing committee can very well be assailed by

invoking writ jurisdiction of this Court under Article

226 of the Constitution of India. For the said purpose,

the learned counsel relies on various judgments in the

following cases :-

1] Jayesh Dayaram Bhoir v. State of Maharashtra & others.

2012 (5) Mh.L.J.733.

2] Kiran Ramchandra Suryavanshi v. State of Maharashtra & others. 2013(2) Mh.L.J.433.

3] Kailas Bhagwan Hajare v. State of Maharashtra & others.

PIL 75/16

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2009 (6) Mh.L.J.490.

4] M.S.Samiti,Akola v. Municipal Corporation & others.

2012 (4) Mh.L.J.874.

5] Union of India and others v. Tantia Constructions Pvt.Ltd.

(2011) 5 SCC 697.

6] Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.Kamalia & others.

(2004) 2 Supreme Court Cases 65.

7] Lokprakashan Ltd. v. Kanchanbhai Kanibhai

Tadvi & others.

With The Sandesh Ltd. v. Rameshchandra Babulal Shah &

others.

(2009) 9 Supreme Court Cases 43.

8] Jamnagar District Development Trust v. Municipal Corpration

2013 SCC Online Guj 1364.

9] Kanchanbhai Kanbhai Tadvi & others v. Municipal Corporation of the City of Vadodara & others.

2001 SCC Online Guj 84:AIR 2002 Guj 31:(2002) 1

GLH 790.

The learned counsel further submits that the writ

petition could be tenable and the petitioner need not be

asked to avail th remedy u/s 451 of the Maharashtra

Municipal Corporations Act.

4] The learned counsel further submits that the

belting method has been adopted while arriving at a

premium amount. The belting method for determining

PIL 75/16

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valuation of the property can only be adopted if there is

no road abutting to the said site. The site on which the

complex is to be erected has got roads from three sides.

As such, the very methodology adopted is erroneous. The

learned counsel submits that the Corporation is the

trustee of the property. It is expected to act fairly

and reasonably. The power vested in the public

authority has to be viewed as a trust coupled with a duty

to be exercised in larger public and social interest.

The public officers are accountable to its citizens for

its action in larger public interest. To substantiate

the said submission, the learned counsel relies on the

judgment of the Apex Court in the following cases :-

1] M.I.Builders Pvt.LTd. v. Radhey Shyam Sahu & others.

(1999) 6 SCC 464.

2] State of Assam & others v. Susrita Holdings Pvt.Ltd.

(2014) 11 SCC 192.

3] Lalaram & others v. Jaipur Development 2015 SCC Online SC 1263.

4] Eureka Forbes Ltd. v. Allahabad Bank & others (2010) 6 SCC 193.

5] The learned counsel further submits that by

issuing such a tender, the Corporation would be a loser.

PIL 75/16

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The major chunk would be given to the contractor and

small portion would be left with the Corporation. The

major premium amount from the shop-keepers would be taken

by the contractor. In fact, the Corporation should have

high share in the developed area. The learned counsel

relies on the judgment of the Apex Court in the following

cases :-

1] Aloke Kumar Ghosh & others v. Calcutta

Municipal Corporation & others. (1997)SCC online Cal 226

2] Ennore Port Ltd. v. M/s Chettinad International Coal Terminal Pvt.Ltd. O.S.A.No.196 of 2011 decided by Madras High Court.

6] Miss.Talekar, learned counsel further submits

that now it is possible for the Corporation to construct

the said complex on its own as large amount has been

received by the Municipal Corporation on account of

demonetization.

7] Miss.Talekar, learned counsel for the petitioner

submits that the petitioner has got the valuation done

from the Government approved valuer who has valued the

writ property at Rs.9,26,00,000/-. This itself shows

that valuation made by the respondents is on much lower

PIL 75/16

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side and would favour contractor.

8] Mr.V.S.Bedre, learned counsel for the respondent

- Corporation submits that the general body had already

taken a decision to get the Vegetable Market and

Commercial Complex constructed. A resolution to that

effect is already passed by the general body in its

meeting held on 10.8.2009. The said resolution was

passed pursuant to Sections 79-C and 79-D of the

Maharashtra Municipal Corporations Act wherein the

premium was decided to be fixed at Rs.1,50,00,000/- and

it was decided to give the same on FBT basis. Another

resolution of the general body was also passed on

5.7.2014 wherein it was decided to construct the Shopping

Complex and Vegetable Market and to increase the premium

by Rs.50,00,000/-. According to the learned counsel, it

is not that the standing committee had unilaterally taken

a decision. The learned counsel further submits that the

Nehru Vegetable Market in CTS No.208, Chitale Road,

Ahmednagar, was initially constructed in the year 1962.

The said market was in a dilapidated condition. On

28.2.2000, the then Municipal Council had passed a

resolution to develop the said Vegetable Market and

PIL 75/16

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Shopping Complex in the said CTS number. The notice of

eviction was issued to the occupants i.e. vegetable

sellers and the shop-keepers. The said action of the

Municipal Council was assailed by these vegetable sellers

and shop-keepers. The Municipal Corporation in Writ

Petition No.4611/2007 filed by shop-keepers and vegetable

sellers had filed an affidavit and submitted that the

Corporation will follow the Resolution No.21 dated

15.5.2001 wherein it was resolved that new stalls will be

allotted on priority basis to the earlier stall holders.

In view of the resolution dated 28.2.2000, the Municipal

Corporation had taken a policy decision for constructions

of Vegetable Market and Shopping Complex on FBT basis.

The resolution of the general body dated 10.8.2009 is

also self-explanatory. Initially vide resolution No.74

dated 10.12.2010, the Municipal Corporation had decided

to call for the tenders on FBT basis by fixing the

premium price at Rs.4,50,00,000/-. In addition, the

contractor should pay Rs.50,00,000/- for beautification

of Chitale road. Though the tenders were floated, no

response was received by the Corporation.

9] The learned counsel submits that for three

PIL 75/16

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times, the tenders were floated, but no response was

received. Thereafter, on 5.7.2014, the Municipal

Corporation passed Resolution No.2 and again decided to

develop the Vegetable Market and Shopping Complex on

privatization basis, but no further action was taken.

The Town Planner had calculated the valuation of the land

as per ready reckoner and the value of the premises is

Rs.2,28,60,837/-. The said valuation is on the basis of

ready reckoner of 2015. On 1.4.2016, there was revision

in the ready reckoner and, therefore, on 29.4.2016, the

Town Planning Department has again valued the premises in

the light of the revised ready reckoner rate and

accordingly fixed the value of Rs.2,40,00,000/-. In the

e-tender, it is clearly stated that the Vegetable Market

shall mean part of the area on the ground floor earmarked

for the shopping center to be handed over to Ahmednagar

Municipal Corporation free of cost. The learned counsel

submits that the plan would be sanctioned strictly in

accordance with the Development Control Rules and

building bye-laws. The rates are also fixed at which the

same will be handed over to the vegetable sellers and

shop-keepers. The persons who have been evicted from the

PIL 75/16

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said site would be given preference and accommodated as

per the affidavit filed in the earlier petition.

10] The learned counsel submits that the interest of

the public at large is involved. Stalling the

construction process would result in further delay and

increase in the cost of the construction inter-alia the

cost at which the same is to be allotted to the vegetable

sellers and the shop-keepers. The learned counsel

submits that this Court would not entertain the present

petition in its writ jurisdiction under Article 226 of

the Constitution of India. The learned counsel relies on

the judgment of the Apex Court in a case of Jagdish

Mandal v. State of Orissa & others reported in (2007) 14

SCC 517.

11] We have considered the submissions canvassed by

the learned counsel appearing for the parties.

12] The petitioner herein does not claim any

personal interest in the shopping complex to be

constructed nor is the beneficiary, has filed the present

petition in public interest.

13] The bone of contention of the petitioner, it

appears, is that the premium is fixed at a low price. As

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far as the aspect of fixation of premium is concerned,

the valuation has been made by an expert i.e. Town

Planner. The ready reckoner rate is even lower than the

premium fixed by the Corporation. The Courts would not

possess the expertise to dwell upon the aspect of

valuation. Suffice it to note here that the valuation

fixed by the Corporation while inviting the tenders is

based on the certificate issued by the Town Planner who

would be an expert in valuing the property. It also

requires to be borne in mind that on four to five

occasions earlier, the Corporation had floated the

tenders inviting the offers for construction of the

Vegetable Market and Commercial Complex wherein the

premium was fixed at Rs.4,00,00,000/-. Unfortunately, no

response was received to the said tenders floated. The

methodology adopted while fixing the premium does not

appear to be totally erroneous. The rates mentioned in

the ready reckoner have been considered. Even the

premium fixed is above the valuation of the property as

per the ready reckoner. The methodology adopted in

valuing the property and fixing the premium price is not

alien to the established norms. As such, it would not be

PIL 75/16

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possible for this Court to enter into the realm of

valuation.

14] Certainly, this Court would have its inherent

restrictions in exercising the powers of judicial review

in the policy decision taken by the Corporation. This

Court while considering challenge to the decision would

be required to consider adherence to the legal principles

and relevant norms in decision making process. This

Court would not sit over the decision taken by the

Corporation as an appellate authority while exercising

the powers of judicial review. The powers of judicial

review will have to be exercised with circumspection,

more particularly when the public interest is involved.

It also requires to be considered that the persons who re

already evicted from the premises where the new Vegetable

Market and Commercial Complex is to be constructed, are

to be provided accommodation. In the earlier writ

petition, the affidavit is filed by the Corporation that

these persons would be given preference. These persons

are without any place of business for more than seven to

eight years.

15] Certainly, as per Sections 79-C and 79-D of the

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Maharashtra Municipal Corporations Act, the Commissioner

may lease, sell, let out on hire or otherwise convey any

property belonging to the Corporation with the sanction

of the Corporation. The Corporation would mean the

decision taken by the Corporation in its general body. It

is not the case that the standing committee on its own

for the first time has passed the impugned resolution.

The general body in the past also has passed the

resolution for developing the Vegetable Market and the

Shopping Complex. The said resolutions are already filed

on record. It is pursuant to the said resolutions, the

standing committee has passed the resolution in February,

2016. It is nowhere brought on record that the general

body does not agree with the said resolution or the

general body has taken some different stand. The

resolution of the standing committee is pursuant to the

resolution passed by the general body wherein decision

has been taken to construct the said Vegetable Market and

Shopping Complex.

16] Earlier, for three to four times, the tenders

were issued, but unfortunately no response was received

pursuant to the said tenders. Further delay in the

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construction would be detrimental to the interest of the

persons to whom the said Vegetable Market and the shops

are to be allotted. We cannot be oblivious of the fact

that the persons to whom the said space has to be

allotted are yearning for the allotment of the said

space. Since the year 2010, the steps are being taken

for construction of this complex, however, no response

was being received. Ultimately, the instant tender has

been issued and it appears that response pursuant to the

said tender is received. If the general body does not

agree with the resolution passed by the standing

committee, it is for the general body to take a decision.

However, it does not appear that such a decision was

taken by the general body and the instant resolution of

the standing committee is not contrary to the decision

already taken by the general body earlier of developing

this Nehru Vegetable Market and Shopping Centre at

Chitale road.

17] Considering the above, we are not inclined to

entertain the present Public Interest Litigation. The

PIL is accordingly disposed of.

18] The learned counsel for the petitioner states

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that the petition was bona-fide and the petitioner be

allowed to withdraw the amount deposited pursuant to the

directions of this Court. Mr.V.S. Bedre for the

Corporation states that the petition was not bona-fide

and the said amount be forfeited.

19] Though we have refrained from entertaining the

present petition, we do not find that the petition was

frivolous one or was filed with oblique motive, as such,

we are inclined to return the amount deposited by the

petitioner to the petitioner. The petitioner may

withdraw the amount deposited by him in this Court.

(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)

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