Bombay High Court
M/S Yash Construction Company, ... vs The State Of Maharashtra Thr. ... on 18 August, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5447 OF 2017
M/s. Yash Construction Company,
A partnership firm duly registered under
the provisions of Partnership Act,
Through its partner Uday Balkisan Soni,
R/o. Ramnagar, Mahkar, Dist-Buldhana. .....PETITIONER
...V E R S U S...
1] The State of Maharashtra,
Through its Secretary of Urban Development
Department, Mantralaya, Mumbai - 32.
2] The Collector, Buldhana,
Tahsil & District - Buldhana.
3] The Municipal Council, Mehekar,
Through its Chief Officer, Mehekar,
Tahsil-Mehekar, District-Buldhana. ...... RESPONDENTS.
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Shri A. M. Ghare, Advocate for the Petitioner.
Shri N. R. Patil, AGP for the Respondents.
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CORAM : S. C. GUPTE, J.
th
DATE : 18
AUGUST, 2017.
ORAL JUDGMENT :
Heard learned counsel for the petitioner and learned
Assistant Government Pleader for the State.
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02] Rule. Rule made returnable forthwith and taken up for
hearing with consent of counsel.
03] The subject matter of challenge in the present petition is
an order purportedly passed by the State Government through its
Urban Development Department on 14th July, 2017 under Section
312-A of the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965. By the impugned order, the
State Government has directed cancellation of memorandum of
understanding between Mehekar Municipal Council, District -
Buldhana and the petitioner herein for construction of a shopping
complex on BOT basis on a municipal plot of land. After tendering
process duly conducted by the Municipal Council, the petitioner's
tender was accepted and by a memorandum of understanding
signed between parties on 28th September, 2012, the petitioner was
entrusted with the work of construction of the shopping complex on
terms and conditions including a lease for a period of 30 years in
favour of the petitioner. Before preparations started for the project,
the Municipal Council had duly applied to the State Government for
its approval under Section 92 of the Act. It appears that this
proposal of 28th September, 2012 was finally rejected by the State
Government through its Urban Development Department on 22 nd
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August, 2014, by which date the memorandum of understanding
between the parties was in place. Even, thereafter, the respondent -
Municipal Council called upon the State Government through the
Collector of Buldhana by a communication dated 14.01.2016, to
accord its approval to the arrangement between the parties.
Without dealing with this communication and without considering
as to whether or not, in the peculiar facts and circumstances of the
case, an ex facto sanction ought to have been granted to the
memorandum of understanding for construction of the shopping
complex on BOT basis, the State Government has purported to issue
directions under Section 312-A of the Act for cancellation of the
memorandum of understanding.
04] Apart from the consideration as to whether the State
Government is empowered to issue such directions under Section
312-A of the Act, it is quite apparent, and cannot be disputed, that
these directions are purportedly issued without even a semblance of
a hearing to the petitioner, who is party to the memorandum of
understanding and has acted on it. The petitioner has not only
entered into the memorandum of understanding as far back as on
28th September, 2012, but has proceeded to construct a shopping
complex of three floors at the site. In the premises, the minimum
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that was required from the State Government was to give a proper
hearing to the petitioner before issuing any such directions. The
impugned order of the State Government, accordingly, cannot be
pass muster. It is vitiated by a serious error of law and infraction of
principles of natural justice. The impugned order, accordingly,
cannot be sustained.
05] Rule is accordingly made absolute in terms of the
following order :
(i) The impugned order dated 14.07.2017 is quashed and
set aside.
(ii) The impugned order dated 14.07.2017 shall be treated
as a show cause notice to the petitioner for a purported
direction under Section 312-A of the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965.
(iii) The State Government shall permit the petitioner to
submit a written representation and explanation in
respect of the proposed directions.
(iv) The petitioner shall make such representation and
submit explanation, if any, within a period of three
weeks from today.
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(v) Mehekar Municipal Council (respondent No.3 herein)
shall also be entitled to submit its representation /
explanation likewise within a period of three weeks from
today.
(vi) Within two weeks of these explanations, the petitioner
and Mehekar Municipal Council shall be orally heard.
(vii) The matter will be disposed of by the State Government
by a speaking order.
06] Rule is accordingly made absolute and the petition is
disposed of in the above terms. All rights and contentions of the
parties including the contentions of the petitioner that the
directions proposed cannot be issued under Section 312-A of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965, are kept open. In the event, the order of the
State Government, after hearing the parties, is adverse to the
petitioner, no coercive steps in pursuance thereof shall be taken for
a period of two weeks thereafter.
JUDGE
PBP
