Shri Gautam Baburao Maske And ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 839 Bom

                                 1                        PIL No.139/2016

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

            PUBLIC INTEREST LITIGATION NO.139 OF 2016 

  1.       Shri. Gautam Baburao Maske,
           Age:59 years, Occu: Retd.,
           R/o. vidyanagar (W),
           House No. 1-3-325, Beed,
           District Beed
           PAN No.: AJDPM0251B
           Aadhar No.689030260498
           Email: [email protected]

  2.       Shri. Vishnu Shamrao Waghmare,
           Age: 55 years, Occu.:Social Work,
           R/o. Sahyog Nagar (E)
           S. Indira Niwas, D.P. Road,
           Beed - 431 122
           PAN: AAZP4973D
                                             - PETITIONERS
                 VERSUS

  1.       The State of Maharashtra
           Through its Chief Secretary,
           And
           Under Secretary
           Urban Development Department,
           Mantralaya, Mumbai - 32,

  2.       The Collector, Beed
           At Collector Office, Beed,

  3.       Beed Municipal Council
           Through its President 
           And
           Chief Executive Officer,
           Municipal Council, Beed,
           District Beed
                                                     -  RESPONDENTS 
                               *****
  Mr. Tejesh Dande with Mr. Prasanna Dande i/b. Tejesh 
  Dande & Associates, Advocates for Petitioners.
  Mrs. A.V. Gondalekar, AGP for Respondent Nos.1 & 2;
  Mr. G.K. Thigale (Naik), Advocate for Respondent No.3
                               -----




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                                        2                     PIL No.139/2016

                                    CORAM : R.M.BORDE &
                                            P.R.BORA,JJ.

DATE OF RESERVING ORDER: 16 th

MARCH,2017

DATE OF PRONOUNCING ORDER: 20 th

MARCH,2017

COURT'S ORDER (PER:-P.R.BORA,J.)

1) Two citizens from Beed have filed the

present Public Interest Litigation impugning the

communication dated 11th April, 2016, whereby the

Under Secretary to the State of Maharashtra has

directed the Collector, Beed to transfer the funds

allocated to Municipal Council, Beed for implementing

the construction work of roads and drainages in the

extended areas of Municipal Council, Beed, under the

Scheme sponsored in that regard by the State

Government, to the Public Works Department and to get

the said works executed from the said Department.

2) This court on 26th October, 2016 has passed

an order restraining the Collector, Beed from parting

with the funds, which he has received. That order

continues to operate even today.

3) The State Government, vide its Resolution

dated 27th June, 2012 had resolved to provide

financial assistance to the Municipal Corporations

and Municipal Councils, of which the territorial

limits are extended, to enable them to carry out the

public utility works like construction of road,

drainages etc. in the said extended areas. As

provided in the said Government Resolution, for

carrying out such works, the Municipal Councils are

required to make provision to the extent of 10% of

the estimated cost of the works to be carried out, by

way of their own contribution and the remaining 90%

amount of the estimated cost is to be shared by the

State Government by making the grants available to

that extent to the concerned Municipal Councils.

4) In order to avail the benefit of the

aforesaid scheme, Municipal Council, Beed (Respondent

no.3) prepared a proposal for construction of roads

and drainages in its extended areas. As per the said

proposal, at 12 different places in the extended

areas, hot mix and cement concrete roads so also

drainages were proposed to be constructed. The

estimated cost of the works so proposed was

Rs.30,09,08,666/-. Respondent no.3 in its General

Body meeting held on 6th May, 2013 vide Resolution

No.940 resolved to deposit with the Government 10%

own contribution for the aforesaid works. The

Collector, Beed, (Respondent no.2) vide his order

dated 22nd October, 2013 granted administrative

sanction/approval to the proposal so prepared and

submitted by respondent no.3. The said proposal was,

then forwarded to the State Government seeking

financial assistance to the extent of 90% of the

estimated cost of the proposed works in view of the

Government Resolution dated 27th June, 2012. The

proposal was favourably considered by the State

Government and vide Resolution dated 18th March, 2016,

the State Government released the first installment

amounting to Rs.13,54,08,900/- in favour of the

Municipal Council, Beed.

5) As has been submitted by the learned Counsel

appearing for the petitioners and the learned counsel

appearing for Respondent No.3, after the

administrative sanction/approval was granted to the

proposed works, the Municipal Council Beed carried

out the tender process for allotment of the said

works and in turn accepted the tender of the lowest

bidder and accordingly the work order was issued to

the said contractor on 14th August, 2014. As has been

further submitted on behalf of respondent no.3 the

project works have been completed to the extent of

60-70%. In the circumstances, request was made by

respondent no.3 to respondent no.2 to release the

grants of Rs.13,54,08,900/- received towards first

installment from the State Government. However, in

the meanwhile the impugned communication came to be

issued.

6) The petitioners have alleged that under the

political pressure of M.L.A. Shri Vinayak Mete, the

State Government has issued the impugned

communication. It is the grievance of the

petitioners that the decision taken by the State

Government is against the interest of the Municipal

Council Beed and consequently against the interest of

the residents of Beed. According to the petitioners,

transfer of the project works in the mid-way from

respondent no.3 to Public Works Department, would be

extremely non-practicable and difficult. It is

further contended that respondent no.3 has already

alloted the work by carrying out the tender process

and the same is in progress. In the circumstances,

change in implementing agency may badly hamper the

said work. It is also contended that the impugned

decision may result in creating serious problems for

respondent no.3 which may ultimately result in

delaying completion of the project works. It is

further contended that the extended area of

respondent no. 3 is lacking the basic infrastructure

i.e. roads and drainages. Delay in completing the

said works would ultimately cause great hardship to

the residents of the respective areas. Impugned

communication is, therefore, sought to be quashed.

7) One Shri Satish Krishnarao Shivane working

as District Administrative Officer, Urban Development

branch, Collector office, Beed filed affidavit in

reply on behalf of Respondent No.2, i.e. Collector,

Beed, contending therein that the Collector, Beed,

has not yet transfered the funds to Public Works

Department in view of the interim order passed by

this court. Except providing the aforesaid

information, Collector, Beed, has not given any reply

on merits, to the contentions raised in the petition.

8) Smt. Rita Prabhakar Metrewar, working as

Regional Deputy Director, Municipal Administration,

Aurangabad, has filed an affidavit in reply on behalf

of Respondent no.1, opposing the petition. It is

contended therein that it is well within the

competence of the State Government to decide the

agency for carrying out the work from the State

funds. It has also been contended that the funds

were never transferred to Beed Municipal Council and

were never part of the Municipal funds. It is

further contended that vide letter dated 11th April,

2016, the State Government has waived the condition

of 10% share of Beed Municipal Council and as such,

no additional financial burden is cast on Beed

Municipal Council. It is further contended that the

State Government has issued the letter dated

11.4.2016 to transfer the funds to the Public Works

Department in public interest. It is further

contended that since the condition of 10%

contribution by Municipal Council, Beed is waived,

100% funding is now from the State Government and the

Government has inherent right to decide the

implementing agency for carrying out the works fully

funded by it. For the aforesaid reason, the petition

is sought to be dismissed.

9) From the contents of the Affidavits in reply

tendered on behalf of respondent Nos. 1 and 2, it is

quite clear that the said respondents have not denied

or disputed the fact that the proposal submitted by

the Beed Municipal Council for carrying out the work

of constructing hot mix and cement roads as well as

drainages in the extended Municipal area, was under

the scheme introduced by the State Government in that

regard vide Government Resolution dated 27th June,

2012 and that the said proposal has received the

administrative approval. It has also not been

disputed that the Municipal Council has deposited the

amount of its own contribution to the extent of 10%

of the estimated cost of the project works. It has

also not been disputed that vide Government

Resolution dated 18th March, 2016 the State Government

has released the first installment of

Rs.13,54,08,900/- to the Municipal Council Beed in

pursuance of the proposal so forwarded by the

Municipal Council having estimated cost of

Rs.30,09,08,666/-. The averment in the petition to

the effect that 60-70% of the project work has

already been completed, has also not been

controverted.

10) The legality and the validity of the

communication dated 11th April, 2016 needs to be

examined in the background of the facts as aforesaid.

11) From the material on record, it is

undisputed that the funds which are directed to be

transferred to Public Works Department vide the

impugned communication dated 11.4.2016, are received

to Beed Municipal Council vide Government Resolution

dated 18th March, 2016 under the Scheme introduced by

the State Government vide Government Resolution dated

27th June, 2012. Clause 2(ii)(b) of the Government

Resolution dated 27.6.2012 provides that for

receiving financial assistance from the State

Government under the said Government Resolution, it

is mandatory for the Municipal Council to share 10%

of the estimated cost of the works to be carried out

under the said Scheme, by way of 'own contribution'

of the said Municipal Council. Government Resolution

dated 18.3.2016, whereby the State Government has

sanctioned the first installment to Respondent No.3,

casts the responsibility upon the District Collector,

Beed to verify that the amount of own contribution is

paid by the Beed Municipal Council before

disbursement of the said amount to the said Municipal

Council. The record shows that Respondent No.3 has

deposited the amount of own contribution and

Collector, Beed has confirmed the said fact in his

letter dated 10.5.2016 addressed to the Deputy

Secretary, Urban Development Department .

12) Further, as stipulated in clause (iv) of the

Government Resolution dated 18th March, 2016,

Municipal Council, Beed is the implementing agency

for execution of the project works.

13) The State Government, in its affidavit in

reply, though has taken a stand that it has waived

the condition of deposit of own contribution by

Municipal Council, Beed, and now, 100% project cost

will be borne by the State Government, which vests it

with an inherent right to decide the implementing

agency to execute project works, no such evidence or

document is placed on record by the respondents. The

communication dated 11.4.2016 does not contain any

such averment that the Government has waived the

condition of 10% share of the Beed Municipal Council.

As noted by us herein above, the Scheme introduced by

the State Government, vide the Resolution dated 27th

June, 2012 mandatarily provides for 10% share as own

contribution by the concerned Municipal Council,

seeking financial assistance from the State

Government under the said Government Resolution. The

provision so made in the Government Resolution cannot

be nullified by the communication under the signature

of Under Secretary to the Government. In the

Government Resolution dated 27.6.2012, we did not

find any provision permitting the waiver of the 10%

contribution by the Municipal Council. It is also

not disclosed by the respondents as to on what basis

and for what reasons, the exemption has been granted

to Municipal Council, Beed from paying its own

contribution, if at all the same would have been

granted. Significantly, Collector, Beed has not

taken any such plea in his affidavit in reply. In

absence of any evidence, the plea as aforesaid, taken

in affidavit in reply by the State, has to be

rejected.

14) In the affidavit in reply filed on behalf of

respondent No.1 it has also been contended that the

funds were never transferred to the Beed Municipal

Council and were never part of the Municipal funds.

The contention so raised is apparently unacceptable.

As earlier noted by us, clause 3 of the Government

Resolution dated 18th March, 2016 whereby the first

installment was released in favour of Municipal

Council, Beed specifies that the released amount

shall be kept in an independent account of the

Municipal Council. In view of the specific clause in

the aforesaid resolution it is not open for the State

Government now to say that the amount was not

transferred to the Beed Municipal Council and was

never part of the Municipal funds. The amount which

was directed to be credited to the independent

account in the name of Municipal Council becomes the

part and parcel of the Municipal Fund.

15) Relying on Government Resolution dated

16.01.2016 it is further contended in the affidavit

in reply of respondent - 1 that the State Government

has inherent right to decide the implementing agency

for the works fully funded by it and hence no fault

can be found with the impugned communication dated

11.04.2016. This contention is equally fallacious.

Firstly, for the reason that Government Resolution

dated 16.01.2016 relates to a different scheme and

cannot be applied in the present matter. In So far

as right of the State Government to determine or

select implementing agency is concerned, vide

Government Resolution dated 18.03.2016 and more

particularly clause 4 thereof, the State Government

has already exercised that power by selecting and

nominating Municipal Council, Beed as the

implementing agency for execution of the project

works.

16) Communication dated 11.04.2016, by an Under

Secretary cannot annul the provision so made in the

Government Resolution dated 18.3.2016, whereby

Municipal Council, Beed has been prescribed as the

implementing agency for execution of the project

works. Moreover, there must have been some

justifiable reason for changing the earlier decision

which was taken on consideration of the relevant

Government Resolution's, Circulars and other related

material.

17) The communication dated 11.4.2016 does not

disclose any reason much less any justifiable reason

for transferring the funds to the Public works

Department, which has been allocated to Municipal

Council, Beed. In the affidavits in reply filed by

Respondent Nos. 1 and 2 also, there is no explanation

as to for what reasons the project works are directed

to be executed through the Public Works Department

and the funds are directed to be transferred to the

said department, when vide Government Resolution

dated 18th March, 2016, Municipal Council, Beed was

already named as the implementing agency for

execution of the said works and the first installment

was also received to District Collector, Beed for

allocating the same to Municipal council Beed.

18) In the impugned communication there is

reference of Government Resolution dated 18-03-2016.

We have carefully perused the aforesaid Government

Resolution. There is no provision in the aforesaid

Government Resolution which would empower the State

Government to change the Implementing Agency. The

learned A.G.P appearing for Respondent Nos. 1 and 2

has also not brought to our notice any other

Government Resolution which empowers the State

Government to change the Implementing Agency for

execution of the works undertaken under the scheme

introduced vide Government Resolution dated 27th of

June, 2012. The impugned communication is therefore

without jurisdiction and hence clearly un-

sustainable.

19) In the instant matter, as has been alleged

by the petitioners the only reason for directing

change in Implementing Agency appears to be the

political pressure brought on the Government by

M.L.A. Shri Vinayak Mete by sending a letter dated 6th

of April, 2016 to the Hon'ble Chief Minister

requesting him to transfer the fund allocated to Beed

Municipal Council to the Public Works Department and

to get the project works executed through the said

department. Even in his said letter M.L.A. Shri

Mete, has nowhere alleged that the Municipal Council,

Beed is incapable of carrying out the project works

or has committed some such irregularities in

execution of the project works or that, has violated

the terms and conditions imposed on it warranting

withdrawal of the execution of the project works from

it.

20) When no such ground was made out, in fact,

the State Government should not have acceded to the

request so made by Shri Mete. Moreover, before

issuing the impugned communication, the State ought

to have considered that in pursuance of the

administrative approval accorded to the project

works, Respondent No.3 had already completed the

tender process and had issued the work order to the

lowest bidder on 14th August, 2014 and 60 to 70% of

the project work was already completed. Neither in

the impugned communication nor in the affidavits in

reply filed by the respondents there is any

explanation as to how the payment would be made to

the contractors of the works done by them till date

and whether the same contractors will be continued

further or otherwise. It would also be quite

difficult to determine as to what part of work was

implemented by the Municipal Council and what

remaining work is to be completed by the Public Works

Department. We reiterate that the fact stated by the

petitioners on affidavit, that the contractor to whom

the work has been allotted by Respondent No.3 has

completed 60 to 70% of the project work, has not been

denied or disputed by the respondents. We fail to

understand as to what made the State Government to

change the implementing agency when 60 to 70% work

has already been completed.

  21)              In   the   affidavit   in   reply   filed   by 

  Respondent   No.2   though   it   is   stated     that   the 

decision to change the implementing agency has been

taken in public interest, there is no further

explanation what public interest is being served by

changing the implementing agency. On the contrary,

from the facts which have come on record, we have no

manner of doubt in holding that the impugned decision

is totally adverse to the interest of the public at

large. It is apparent that the impugned

communication is being made in highly arbitrary

manner without taking into account the consequence of

the said decision. There is substance in the

contention raised by the petitioners that if the

impugned communication is sustained, the Municipal

Council is likely to face number of litigations which

may ultimately increase the financial burden on the

said Municipal Council and in turn on the tax-payers

of the said Municipal council. Moreover, because of

change in the implementing agency, there is every

possibility that the project work would be delayed,

which may result in increasing the project cost. The

works which have been undertaken are admittedly of

roads and drainages. Delay in completion of these

works ultimately would result in causing hardship to

the residents of the said area. Thus, viewed from

any angle, it is difficult to sustain the impugned

communication.

22) As noted earlier, there is no provision in

the Government Resolution dated 18th March, 2016 which

would empower the State Government to change the

implementing agency. For a moment, even if it is

assumed that the State possesses such right, the same

cannot be arbitrarily exercised. As has been

observed by the Hon'ble Apex court in State of Punjab

Vs. Brijeshwar Singh Chahal - (2016) 6 SCC 1, the

Government and the public bodies are trustees of the

powers vested in them. Discharge of the trust reposed

in them in the best possible manner is their primary

duty. These powers are to be exercised by the State

and the State instrumentalities in a fair,

reasonable, non-discriminatory and objective manner.

The duty to act in a fair, reasonable, non-

discriminatory and objective manner, is the facet of

the rule of law in the constitutional democracy like

ours. As consistently held by Hon'ble Apex court an

action that is arbitrary has no place in a polity

governed by Rule of law apart from being offensive to

the equality clause guaranteed by Article 14 of the

Constitution of India. The Government and public

bodies are free to choose the implementing agency in

executing the works funded by them but any such

selection or cancellation must demonstrate that it

was unaffected by any extraneous consideration. Any

decision taken in arbitrary fashion, without any

transparent method or for political considerations,

will be amenable to judicial review and liable to be

quashed and set aside.

23) In the instant matter, we have no hesitation

in holding that the impugned communication is

arbitrary, malafide, based on irrelevant

considerations, without jurisdiction and for

political consideration. Such decision cannot be

sustained and deserves to be quashed and set aside.

24) In the foregoing circumstances and for the

reasons stated above, following order is passed, -

ORDER

i) The impugned communication dated

11.4.2016 is quashed and set aside;

ii) The Collector, Beed (Respondent

No.2) is directed to forthwith release the

amount of first installment received under

the Government Resolution dated 18th March,

2016, to Municipal Council, Beed (Respondent

No.3) in terms of the said Government

Resolution;

iii) Respondent Nos. 1 and 2 shall

allow the Municipal Council, Beed to

complete the project works in terms of the

Government Resolution dated 18th March, 2016

25) The Public Interest Litigation is allowed in

the aforesaid terms.

        (P.R.BORA)                (R.M.BORDE)
          JUDGE                      JUDGE
  bdv/