Nandlal Suganchand Tardeja ... vs Amravati Municipal Corporation ...
2022 Latest Caselaw 9969 Bom

J-WP-2718-13,2010-14,2450-15                              1/13


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR.

                     WRIT PETITION NO.2718 OF 2013


1. Gurabai Gurmukhdas Mattani
   Aged about 68 yrs
   R/o Dasturnagar, 3rd Lane,
   Amravati

2. Vishandas Gopaldas Sayyatta
   Aged about 55 yrs
   R/o Dwarkanath Colony,
   Near Dasturnagar, Amravati

3. Baskar Holomal Waswani
   Aged about 50 yrs
   R/o Baba Hardasram Society,
   Near Kanwar Nagar, Amravati

4. Gopal Kanhaiyalal Sachdeo
   Aged about 35 yrs.
   R/o Rampuri Camp, Amravati

5. Nilkamal Sanjay Mattani
   Aged about 44 yrs,
   R/o SSD Vihar, Chimote Nagar,
  MIDC Byepass Road, Amravati             ... Petitioners

-vs-

Amravati Municipal Corporation,
Through its Commissioner,
Amravati, Dist. Amravati                  ... Respondent

                                  WITH
                     WRIT PETITION NO.2010 OF 2014

1. Nandlal Suganchand Tardeja
   Through Power of Attorney Holder,
   Shri Vijay Suganchand Tardeja,
   aged about 55 years, Occ. Business,
   R/o Dastur Nagar, Amravati

2. Ishwarlal Nebhraj Verma,
 J-WP-2718-13,2010-14,2450-15                                     2/13


  Aged about 60 years
  Occ. Business, R/o Satya Krupa
  Colony, Near Dwarkanath Nagar,
  Amravati

3. Gurumukhdas Ganesharam Mattani,
   Aged about 74 years, Occ. Business,
   R/o Dastur Nagar, Amravati

4. Dayanand Khemchand Popali,
   Aged about 74 years Occ. Business,
   R/o Madhuban Colony, Dastur Nagar,
   Amravati

5. Sudhir Govindram Tardeja,
   Aged about 38 years, Occ. Business,
   R/o Dwarkanath Nagar, Amravati

6. Kanta wd/o Rajkumar Motwani
   Aged about 52 years, Occ. Business,
   R/o Madhuban Layout, Near Municipal
   Primary School, Dasturnagar, Amravati

7. Mahendra Laxmandas Ghundiyal
   Aged about 45 years, Occ. Business,
   R/o Dastur Nagar, Amravati

8. Chandanlal Ganeshyaram Tardeja,
   Aged about 58 years, Occ. Business,
   R/o Jai Bharat Nagar, Amravati                    ... Petitioners

-vs-

Amravati Municipal Corporation,
Through its Commissioner,
Amravati, Dist. Amravati                   ... Respondent

                                  WITH
                     WRIT PETITION NO.2450 OF 2015

1. Nandlal Vasantlal Arora
   Aged 48 yrs. Occu. Business
   R/o Dwarkanath Colony,
   Near Dastur Nagar, Amravati

2. Jairam Kanhailal Dara
   Aged 52 yrs. Occu. Business,
 J-WP-2718-13,2010-14,2450-15                                          3/13


   R/o C/o Dr. C. K. Dara,
   Dwarkanath Nagar, Amravati

3. Amarlal Tirathdas Kukreja,
   Aged about 60 years, Occu. Business
   R/o Dastur Nagar, Amravati                   ... Petitioners

-vs-

Amravati Municipal Corporation,
Through its Commissioner,
Amravati, Dist. Amravati                        ... Respondent

Shri P. S. Khubalkar, Advocate for petitioners.
Shri R. D. Dharmadhikar, Advocate for respondent.


                CORAM : A. S. CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.

DATE : September 29, 2022

Common Judgment : (Per : A. S. Chandurkar, J.)

Since similar questions arise in these writ petitions, they have

been heard together and are being decided by this common judgment.

For sake of convenience, facts in Writ Petition No.2718/2013 are being

referred to.

The petitioners are occupiers of individual commercial premises

at plot Nos.75/2 to 75/15 on the Western side of the outer boundary of

Joshi market in the area known as Dwarkanath market in the city of

Amravati. By virtue of perpetual lease dated 24/03/1964, the

petitioners claim interest in the said land. The Municipal Corporation

decided to develop the market area known as Dwarkanath market as

well as Joshi market. Insofar as the petitioners are concerned an

agreement dated 19/05/2006 was entered into by each petitioner with J-WP-2718-13,2010-14,2450-15 4/13

the Municipal Corporation and under that agreement the Muncipal

Corporation was to undertake construction of a commercial complex

and thereafter each petitioner was to be delivered shop premises

commensurate with the area occupied by him/her. Clause-17 of the

said agreement being relevant is reproduced herein :

" Clause-17. The party of Second part shall keep the shop structure insured at his cost. The party of Second Part shall not be entitled to pay the maintenance charges. That the party of Second Part shall be entitled to make internal changes by partition walls and will not be entitled to make any main structural changes."

2. Pursuant to the aforesaid agreement, the Municipal

Corporation issued a notice inviting bids so as to undertake

construction of the commercial mall. To facilitate all activities to be

undertaken in that regard, each petitioner executed a document of

Power of Attorney in favour of the Deputy Municipal Commissioner of

the Municipal Corporation. The Municipal Corporation accordingly

took various steps to commence the construction of the commercial

premises. A project agreement was thereafter entered into between

the Commissioner, Amravati Municipal Corporation and the Developer.

In the year 2011 it was proposed to execute a tri-partite agreement

between the Municipal Corporation as lessor, the petitioners as lessee

and the Developer. The petitioners were called upon to sign the said J-WP-2718-13,2010-14,2450-15 5/13

tri-partite agreement. Clause-12 of the said tri-partite agreement

which has resulted in disputes arising between the parties reads as

under :

" Clause-12. That the water charges, electricity charges and other charges which will include the charges for sanitation, security guards, lift charges and generator charges and all other such charges shall be payable by the Lessee and the amount of said charges will be decided mutually between the developer and the Lesse."

3. The petitioners were hesitant to sign the said tri-partite

agreement in view of Clause-12 therein. In that regard the Municipal

Corporation through its Officer issued notices dated 25/06/2012,

22/08/2012 and 12/04/2013 to the petitioners calling upon them to

sign the tri-partite agreement and hand over possession of the premises

in their occupation. The petitioners on 26/04/2013 issued a notice to

the Commissioner protesting against inclusion of Clause-12 in the tri-

partite agreement and there being no response to their grievance, the

present writ petitions have been filed.

4. During pendency of the writ petitions, the following order was

passed on 04/03/2015.

" Seen the pursis filed vide Stamp Nos.2365 of 2015 and Stamp No.2308 of 2015 filed in both the matters.

The Municipal Corporation has no objection if interim J-WP-2718-13,2010-14,2450-15 6/13

arrangement is allowed and made in terms of the pursis. However, Mr.J.B.Kasat, learned Counsel points out that the tripartite agreement referred to in the said pursis is Annexure P9 filed in Writ Petition No.2010 of 2014 at its page no.70. He further states that the only dispute between the parties is about amounts to be paid as per clause 12 of said tripartite agreement. Hence, separate account only in relation to appropriation under the head mentioned in paragraph no.12 needs to be maintained. Respective Counsel for the petitioners do not dispute this position. Accordingly, we accept the pursis.

The petitioners shall sign the tripartite agreement without prejudice to their rights and contentions raised in the petition. The respondent/Corporation shall maintain separate account only in relation to the amounts received by it under clause 12/para 12 of the tripartite agreement (Annexure P9 of page no.70 of the Writ Petition).

Payments made by the petitioners under the said paragraph 12 may be refunded to them if their grievance in the petitions are accepted."

5. Pursuant to the aforesaid order, a tri-partite agreement in view

of the said interim order came to be executed by the parties. The

petitioners agreed to pay municipal and other taxes to the Municipal

Corporation. They also agreed to pay water, electricity and all other

charges in respect of the services that would be availed by them. The

petitioners were to maintain the premises at their own cost. It was also

agreed that the charges of sanitation, security guards, lift charges and

generator charges would be payable by the petitioners after initially J-WP-2718-13,2010-14,2450-15 7/13

depositing the amount with the Developer. This interim arrangement

has been since continued to operate.

6. Shri P. S. Khubalkar, learned counsel for the petitioners

submitted that the dispute between the petitioners and the Municipal

Corporation was specifically to the insertion of Clause-12 in the tri-

partite agreement, draft of which was prepared in the year 2011. It

was submitted that in the initial agreement dated 19/05/2006 the

Municipal Corporation had accepted that the petitioners would not be

entitled to pay any maintenance charges. This agreement being in the

nature of a concluded contract between the parties, it was not open for

the Municipal Corporation to require the petitioners to pay

maintenance charges. Though Clause-12 of the tri-partite agreement

refers to payment of water, electricity and other charges, it was

submitted that the petitioners were willing to pay the actual water and

electricity charges. The dispute was only with regard to payment of

maintenance charges. It was not permissible for the Municipal

Corporation to disregard Clause-17 in the agreement dated

19/05/2006. He submitted that the petitioners were willing to sit

with the Developer so as to work out payment of maintenance charges

to it but the petitioners had an objection to insertion of Clause-12 in

the tri-partite agreement insofar as it related to the liability to pay the J-WP-2718-13,2010-14,2450-15 8/13

maintenance charges. Placing reliance on the decisions in Noble

Resources Ltd. vs. State of Orissa and anr. (2006) 10 SCC 236, Kisan

Sahkari Chini Mills Ltd. And ors. vs. Vardan Linkers and ors. (2008) 12

SCC 500 and Manualsons Hotels Private Ltd. vs. State of Kerala and

ors. (2016) 6 SCC 766, it was submitted that the Municipal

Corporation being a public body it could not act in an arbitrary manner

even in the matter of contract. It could not be permitted to disregard

and deviate from the earlier concluded contract dated 19/05/2006. It

was thus submitted that the petitioners were entitled for the relief as

prayed for.

7. Shri D. L. Dharmadhikari, learned counsel for the Municipal

Corporation opposed aforesaid submissions. At the outset he sought to

urge that since there were various disputed questions that were sought

to be adjudicated and the petitioners sought enforcement of the earlier

agreement dated 19/05/2006, the writ petition was not liable to be

entertained. Consideration of the prayers as made would result in

affecting the rights of the Developer. The Developer was not a party to

the proceedings and in his absence the objection to the inclusion of

Clause-12 in the tri-partite agreement could not be considered. He

further submitted that though three meetings were held in the year

2006, the challenge to Clause-12 was being raised at a belated stage.

J-WP-2718-13,2010-14,2450-15 9/13

Being occupiers of the premises in question that were to be constructed

by the Developer, they could not deny the liability to pay maintenance

charges. In that regard the learned counsel placed reliance on the

decisions in Pimpri Chinchwad Municipal Corporation and ors. vs.

Gayatri Construction Company and anr. (2008) 8 SCC 172 and South

East U. P. Power Transmission Company Ltd. Lucknow vs. U.P. Power

Transmission Corporation Ltd. Thr. Chairman and Others. (2019) 5 All

LJ 69. It was submitted that the writ petitions were liable to be

dismissed.

8. We have heard the learned counsel for the parties at length and

we have perused the relevant documents placed on record. At the

outset the objection raised on behalf of the respondent to the

maintainability of the writ petition can be considered. It is seen that

the execution of the initial lease deed in the year 1964 in favour of the

petitioners by the Municipal Corporation is not in dispute. Similarly,

there is no dispute with regard to agreement dated 19/05/2006

between the petitioners and the Municipal Corporation. As per

Clause-17 thereof it was agreed that the petitioners would not be

entitled to pay maintenance charges. In the same agreement, it was

agreed that the Corporation would construct a commercial complex

wherein the petitioners were to be allotted shop blocks in view of the J-WP-2718-13,2010-14,2450-15 10/13

fact that they had leasehold right in the property. In terms of this

agreement dated 19/05/2006, the Municipal Corporation took further

steps and sought to construct the premises by engaging the services of

the Developer. With a view to facilitate such construction, a tri-partite

agreement was sought to be entered into. As stated above, the

grievance of the petitioner is with regard to Clause-12 of the tri-partite

agreement insofar as it requires them to pay maintenance charges.

The only aspect that is proposed to be adjudicated is the

insertion of Clause-12 in the tri-partite agreement disregarding Clause-

17 of the agreement dated 19/05/2006 at the instance of the

Municipal Corporation. In that regard we do not find any disputed

question arises that seeks resolution. On the contrary, as held in

Noble Resources Ltd. (supra), if it is urged that an action on the part of

the State or any Authority is violative of Article 14 of the Constitution

of India and a grievance made that there has been breach of promise

on the part of the State or its Authority, a writ petition would be

maintainable and it would not be correct to hold that under no

circumstances would a writ lie only because it involved a contractual

matter. With the aforesaid legal position in mind, the rival contentions

can be considered.

9. As stated above as per Clause-17 of the agreement dated J-WP-2718-13,2010-14,2450-15 11/13

19/05/2006, the Municipal Corporation had agreed that the

petitioners would not be entitled to pay any maintenance charges.

Thus while seeking to take steps as permissible under that agreement

and requiring the Developer to undertake construction, the stand of the

Municipal Corporation of seeking to require the petitioners to pay

maintenance charges by disregarding Clause-17 of the earlier

agreement appears to be directly in conflict with the same. While

executing the tri-partite agreement, the rights accrued by the

petitioners and the promises made to them by the Municipal

Corporation cannot be permitted to be defeated. Thus to the extent

of inclusion of Clause-12 in the tri-partite agreement by which the

petitioners are required to pay other charges in the form of

maintenance requires consideration. The insistence to that extent by

the Municipal Corporation is not justified.

10. It is seen that pursuant to the interim order dated 04/03/2015

the petitioners have been paying other charges which include the

charges of sanitation, security guards, lift charges and generator

charges by mutual agreement. This arrangement is subject to the final

adjudication of the writ petition. Considering the narrow dispute

between the petitioners and the Municipal Corporation, we are of the

view that both the parties ought to resolve the same through a J-WP-2718-13,2010-14,2450-15 12/13

meaningful dialogue. We also note that the petitioners have expressed

willingness to have a separate maintenance agreement with the

Developer as the petitioners are only averse to inclusion of Clause-12

to that extent in the tri-partite agreement.

In the light of aforesaid the interests of justice would be met by

issuing following directions so as to resolve the dispute between the

parties :

(a) The petitioners as well as the Municipal Corporation through its authorised Officer shall sit together and resolve the issue with regard to Clause-12 of the tri-partite agreement insofar as it refers to payment of maintenance charges by the petitioners. This shall be done by reconciling Clause-17 of the agreement dated 19/05/2006 insofar as it does not require the petitioners to pay maintenance charges.

(b) It is clarified that Clause-12 of the tri-partite agreement insofar as it relates to payment of water and electricity charges is not objected to.

(c) It is open for the petitioners to have a separate agreement with the Developer in the matter of payment of maintenance charges that have been otherwise referred in Clause-12 of the tri-partite agreement.

(d) As per the interim order dated 04/03/2015 a separate account is being maintained by the Municipal Corporation with regard to payment being made by the petitioners under J-WP-2718-13,2010-14,2450-15 13/13

Clause-12 of the tri-partite agreement. After deducting the actual amount spent, the balance amount if any shall be returned to the petitioners.

(e) The Commissioner, Municipal Corporation Amravati shall take necessary steps to resolve the aforesaid dispute within a period of eight weeks from today. The petitioners shall co- operate with the Authorities in the matter.

The writ petitions are disposed of with aforesaid directions leaving the parties to bear their own cost.

(Urmila Joshi-Phalke, J.) (A. S. Chandurkar, J.)

Asmita

Digitally signed byASMITA ADWAIT BHANDAKKAR Signing Date:03.10.2022 10:30:21