Bombay High Court
M/S Yash Construction Company, A ... vs The State Of Maharashtra, Thr. ... on 8 June, 2022
Bench: Manish Pitale
35-WP2408.22.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETN. NO. 2408 OF 2022
M/s.Yash Construction Company
-Vs.-
The State of Maharashtra and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.Sunil Manohar, Sr.Advocate a/b Mr.N.R.Tekade, counsel
for the petitioner.
Mrs.S.S.Jachak, AGP for respondent Nos.1 and 3.
CORAM : MANISH PITALE, J.
DATE : 08.06.2022
Heard. Mr.Sunil Manohar, learned Senior
Counsel appeared for the petitioner.
2. By this petition, the petitioner has challenged
order dated 07/12/2021, passed by respondent No.1,
whereby post-facto sanction to an agreement executed
between the petitioner and the Municipal Council
Mehkar, i.e. respondent No.2, has been granted.
3. It is brought to the notice of this Court that
initially when the said agreement was executed,
whereby the petitioner was to develop a market under
Built-Operate-Transfer (BOT Scheme), respondent No.1
had refused approval, which was subject matter of
challenge before this Court in Writ Petition No.5447 of
2017, primarily on the ground that no hearing was
granted. The said petition was allowed.
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35-WP2408.22.odt
4. Subsequently, the impugned order has been
passed, whereby post-facto sanction has been granted.
5. It is submitted that a bare reading of the
impugned order/government resolution would show
that respondent No.1 has invoked power under section
92 and/or section 312(A) of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships
Act, 1965 (for short 'Act of 1965'). By placing reliance
on judgment of the Hon'ble Supreme Court in the case
of G.B.Mahajan and others v. Jalgaon Municipal Council
and others, reported in (1991) 3 SCC 91, it is
contended that section 92 would not apply to the
present case, as the Hon'ble Supreme Court in the
aforesaid judgment in similar circumstances held that
such an agreement for development of market on BOT
basis would not be covered under section 92 of the Act
of 1965.
6. Insofar as section 312-A of the Act of 1965 is
concerned, it is submitted that the same is a general
provision, whereby the State Government issues
instructions and directions on matters of policy to be
followed by Municipal Councils and the same cannot be
invoked in the context of a specific project of the
present nature.
7. Hence, issue notice, returnable on 03/08/2022.
8. Learned Assistant Government Pleader
Mrs.Sangita S. Jachak waives notice on behalf of
respondent Nos.1 and 3.
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35-WP2408.22.odt
9. In the meanwhile, there shall be ad interim stay
in terms of prayer clause 'B' till the returnable date.
JUDGE
Signed By:GHANSHYAM S
KHUNTE
Signing Date:10.06.2022 16:29
KHUNTE
