Bombay High Court
Vishwambar Ramrao Bhutekar vs The State Of Maharashtra Through ... on 3 March, 2023
Bench: Mangesh S. Patil, S. G. Chapalgaonkar
1 WP-9421-2022 & 2 Ors. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9421 OF 2022
01. Pooja w/o. Kalyan Sapate,
Age 38 years Occ. Agri. & Social Worker,
R/o. Rajegaon,
Tq- Ghansawangi, Dist. Jalna.
... Petitioner
Versus
01. The State of Maharashtra
through its Principal Secretary,
Planning Department,
Mantralaya, Mumbai-32.
02. The State of Maharashtra
through its Principal Secretary,
Public Works Department,
Mantralaya, Mumbai-32.
03. The Chief Engineer,
Public Works Department,
Aurangabad Division,
Adalat Road, Snehnagar, Konkanwadi,
Aurangabad 431 005.
04. The Collector,
Collector Office, Jalna.
05. The Executive Engineer,
Public Works Department-2,
Near Durgamata Mandir,
old M.I.D.C., Jalna 431 203.
.. Respondents.
WITH
WRIT PETITION NO. 9422 OF 2022
Satish s/o. Digambarrro Tope,
Age 51 years, Occ. Agri & Social Worker
R/o. Patharwala,
Tq- Ambad, Dist. Jalna. .. Petitioner
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2 WP-9421-2022 & 2 Ors. J.
Versus
01. The State of Maharashtra
through its Principal Secretary,
Planning Department,
Mantralaya, Mumbai-32.
02. The State of Maharashtra
through its Principal Secretary,
Public Works Department,
Mantralaya, Mumbai-32.
03. The Chief Engineer,
Public Works Department,
Aurangabad Division,
Adalat Road, Snehnagar, Konkanwadi,
Aurangabad 431 005.
04. The Collector,
Collector Office, Jalna.
05. The Executive Engineer,
Public Works Department-2,
Near Durgamata Mandir,
old M.I.D.C., Jalna 431 203. .. Respondents
WITH
WRIT PETITION NO.9383 OF 2022
Vishwambar Ramrao Bhutekar
Age 38 years, Occ. Agri & Social Worker,
R/o. Mali Pimpalgaon,
Tq- & Dist. Jalna. .. Petitioner
Versus
01. The State of Maharashtra
through its Principal Secretary,
Planning Department,
Mantralaya, Mumbai-32.
02. The State of Maharashtra
through its Principal Secretary,
Public Works Department,
Mantralaya, Mumbai-32.
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3 WP-9421-2022 & 2 Ors. J.
03. The Chief Engineer,
Public Works Department,
Aurangabad Division,
Adalat Road, Snehnagar, Konkanwadi,
Aurangabad 431 005.
04. The Collector,
Collector Office, Jalna.
05. The Executive Engineer,
Public Works Department-2,
Near Durgamata Mandir,
old M.I.D.C., Jalna 431 203.
.. Respondents.
Mr S.S. Tope, Advocate for petitioners
Mr D.R. Kale, Government Pleader for the Respondents/State
CORAM: MANGESH S. PATIL &
S.G. CHAPALGAONKAR, JJ.
RESERVED ON : 01-02-2023
PRONOUNCED ON : 03-03-2023
JUDGMENT (PER S.G. CHAPALGAONKAR, J. )
1. Heard, Rule. Rule returnable forthwith. By the consent of
learned advocates for respective parties, the present writ petitions are
taken up together for hearing since common challenge has been
raised for consideration before us.
2. The petitioners have approached this Court under Article
226 of the Constitution of India, thereby challenging the legality,
validity and propriety of the impugned circular dated 23.7.2022
issued by the Deputy Secretary, Public Works Department,
Maharashtra State. The petitioners also seek issuance of a writ of
Mandamus against the respondent authorities to proceed to
undertake the development works having administrative & Technical
4 WP-9421-2022 & 2 Ors. J.
sanctions by the State of Maharashtra.
3. The petitioners claim that they are Ex-members of the Zilla
Parishad, Jalna, taking part in social, political field in Jalna District.
The respondent State of Maharashtra has approved various
development works in Annual Financial State Budget Session 2021 to
2022 and 2022 to 2023 under Article 202(1) of the Constitution of
India. The works of construction of public buildings and roads were
approved. The administrative sanctions were granted to such works.
The respondent No.3 granted technical sanctions to development
works. The complete proposals were forwarded to the Public Works
Department, Jalna, for issuance of E-tender notices. Pursuance
thereto E-tender notices were published on 12.5.2022 and 2.6.2022
in various newspapers in respect of 29 development works.
4. The petitioners further contend that on 29.6.2022, the then
Chief Minister resigned. Though, the new Chief Minister assumed his
office on 30.06.2022, the appointments of other Ministers were
delayed. On 21.7.2022, the Chief Secretary of the State issued the
noting / communication which is marked to Secretaries of
Departments of State of Maharashtra. The communication stipulates
that all the development works awaiting issuance of work order or
commencement of work, shall remain stayed. It is clarified that
instructions under communication have been issued by the consent of
the Honorable Chief Minister. In deference to the aforesaid
communication, the Deputy Secretary, Public Works Department
issued the impugned circular dated 23.7.2022 addressed to the Chief
Engineers, regional offices and divisions. It directs to stay the
progress of those tenders in which the work orders are issued so also
execution of work has not been commenced.
5 WP-9421-2022 & 2 Ors. J.
5. The petitioners contend that the impugned circular is
arbitrary. It has been issued for political considerations due to change
of the regime. The development works having Budgetary,
administrative & Technical sanctions by Government Authority could
not have been halted abruptly. The impugned circular depicts
colorable exercise of powers by the State Government, which cannot
stand to the scrutiny under Article 14 of the Constitution of India
hence, liable to be quashed and set aside.
6. It is further contention of the petitioners that specific
budgetary provision and allocation of fund was made for different
works to be executed in Jalna District. It has been approved by
Honorable Governor. It could not have been stalled by issuing the
impugned circular. The list of different development works, stalled at
the verge of issuance of work order or execution is submitted before
us. It has been made part of this Judgment at Schedule-I.
7. The respondent Nos. 2, 3 and 5 have filed their affidavit in
reply resisting the prayers in the writ petition on the ground that the
Government has taken conscious decision to take review of the
development works undertaken by Public Works Department. The
works in respect of which tender process was not finalized or the
execution of work has not commenced, were stayed. It is further
brought on record that the subsequent orders are issued by the
Government and stay has been vacated in respect of some of the
works. It is further stated that out of 23 works, which are subject
matter of the writ petition, tender process was not finalized in respect
of 10 works, technical sanction was not granted to 6 works, tender
was not finalized in respect of 5 works. For 2 works, the tender is
finalized and work order is issued.
6 WP-9421-2022 & 2 Ors. J.
8. The petitioners have filed a rejoinder affidavit contending
that the works which fall within the constituencies of MLAs belonging
to the ruling party are allowed to proceed, however, the works which
are falling within the constituencies of the MLAs from opposition
parties, are not allowed to progress. The respondent Nos. 2,3 and 5
have filed additional affidavit in reply on 17.1.2023 to bring on
record the decision of the Government dated 11.11.2022, thereby
vacating stay in respect of Bridge works as well as construction of
buildings on behalf of the Public Works Department.
9. Mr. S.S. Tope, learned Advocate for the petitioners would
submit that Article 202(1) of the Constitution of India provides for
making budgetary allocations for Development works. He would
further submit that once the allocation of funds has been made
following constitutional provisions, and administrative and technical
sanctions are granted to the development works, there is no reason to
withdraw or withhold such works. He would submit that the
impugned action is taken only because of change of political scenario
in the State of Maharashtra. After resignation by the then Chief
Minister on 29.6.2022, the present Chief Minister assumed the
charge. However, appointment of Ministers was not made. The
impugned circulars are issued without following the rules of business
and instructions issued in exercise of constitutional mandate under
Article 166 of the Constitution of India. He would further submit that
the impugned circular as well as instructions are detrimental to the
development works and even in case of change in the political
scenario or power, development works could not have been stalled.
10. Mr. D.R. Kale, learned Govt. Pleader appearing for the
State would submit that a conscious decision has been taken to
review the development works. It was necessary to bring correction
7 WP-9421-2022 & 2 Ors. J.
in the budgetary allocation as well as priorities as regards to the
development works. The Government has every right to take a policy
decision and also endorse political ideology in execution of
government business. He would submit that after taking review of
the budgetary provisions rescheduling priorities of various works, the
Government has already continued the works relating to construction
of buildings and bridges. He would submit that the petitioner has no
legal or constitutional right to invoke the jurisdiction of this Court.
The present writ petition is not filed as public interest litigation. The
grievance sought to be addressed by the petitioner cannot be
entertained in the writ petition filed by an individual.
11. We have heard the submissions advanced by the respective
parties, perused the documents filed along with the writ petition as
well as the affidavits in reply.
12. The State of Maharashtra in its Public Works Department
granted administrative sanction to various development works
pertaining to construction of Office Buildings, Bridges and State
Highways etc. The technical sanctions were also assigned to those
works. The budgetary allocations were made and tenders were
floated. In some cases, on conclusion of tender process, work orders
are issued to the successful bidders.
13. At this stage, on 29.6.2022, the then Chief Minister of
Maharashtra resigned. On next evening, present Chief Minister
assumed his office. However, the appointment of ministers was
delayed. On 21.7.2022, a communication has been issued by the
Chief Secretary, Maharashtra State, which is marked to Additional
Secretary, Principal secretaries as well as Secretariats of all the
Ministries. It states that the works under various schemes, sanctioned
8 WP-9421-2022 & 2 Ors. J.
from 1st April, 2021 are stayed. Even those tenders, issued after 1 st
April, 2021, pending issuance of work or tenders in which execution
of work has not been commenced following work orders, shall
remain stayed until further orders. It further stipulates that directions
contained in communication are issued as per instructions of the
Honorable Chief Minister. It appears that in deference to aforesaid
instructions, the Deputy Secretary, Public Works Department, issued
impugned communication dated 23.7.2022 addressed to the Chief
Engineers of all the divisions. It states that all the development
works under tenders issued after 1.4.2021 shall remain stayed. The
stay orders shall be given immediate effect.
14. We find that communication does not specify the reason for
such drastic action. The development works which have received
administrative and technical sanction also bestowed with budgetary
provisions, could not have been stayed without valid reasons.
Apparently, the communication dated 23.7.2022 or even the circular
dated 21.7.2022 sans such reason. The record placed before us
depicts that the writ works have received administrative sanction
during the period from 26.2.2021 till 27.6.2022. The technical
sanctions are assigned during 16.11.2021 to 1.6.2022. The tender
notices were also issued in respect of most of the works from
6.5.2022 to 30.5.2022. Even work orders are issued in large number
of tenders.
15. On 29.6.2022 the political scenario changed in the State of
Maharashtra following resignation of the then Chief Minister and the
present Chief Minister assuming charge next evening. Thereafter, on
21.7.2022, instructions were issued in form of a Noting under the
signature of Chief Secretary of the State of Maharashtra staying
execution of development works, in which tender notices are issued
9 WP-9421-2022 & 2 Ors. J.
after 1.4.2021. The Noting dated 21.7.2022 has been addressed to
all the Secretaries of the Ministries under the State of Maharashtra.
It clearly stipulates having issued on instructions of the Chief
Minister. However, no specific reasons are assigned for such drastic
administrative action.
16. The circular dated 23.7.2022 is the fall back of the
aforesaid instructions dated 21.7.2022. All the development works
undertaken by the Public Works Department, State of Maharashtra,
had been stayed by blanket order under instruction of the Chief
Minister. The petitioners have made specific allegations that the
decisions are politically motivated. The development works which are
sanctioned during the regime of outgoing Government are being
stalled for obvious reasons. The affidavit in reply filed on behalf of
the respondents, attempts to offer justification that the ruling party
was required to re-adjust the budgetary provisions and also to decide
the priorities of the development work afresh considering the
demand of the day.
17. Except such general and vague statement, no specific
reasons are given to justify the drastic action under the impugned
circular. The subsequent affidavit in reply points out that, works of
buildings and bridges construction are continued after taking review.
However, no reference is made in this affidavit as regards the works
regarding construction of State Highways and roads, which were
already sanctioned and work orders were also issued.
18. Perusal of the impugned communication shows that
development works that are sanctioned after following due process of
law flowing from constitutional provisions regarding budgetary
allocation as well as rules of business and instructions framed under
10 WP-9421-2022 & 2 Ors. J.
Article 166 of the Constitution of India have been stalled simply by
issuing oral instructions. In view of prevailing political scenario in
state of Maharashtra during relevant period, we have every reason to
believe that petitioner's allegations that the action taken by the
respondents is politically motivated and could not be justified under
law deserves acceptance.
19. At this stage, reference can be made to Article 154 of the
Constitution of India. The Governor is vested with the executive
power of the State, who is empowered to exercise such powers
directly or through the officers subordinate to him. The Governor is
advised by the council of Ministers, the Chief Minister is the Head of
the Council of Ministers. The Council of Minister is collectively
responsible to the legislative assembly of the State. The Supreme
Court of India in case of M.R.F. Ltd. Vs. Manohar Parrikar and others
reported in 2010 (11) SCC 374 observed as under :-
The rules of business framed under Article
166(3) of the Constitution are for convenient
transaction of the business of the
Government, for allocation of business
amongst the ministers and also for facilitating
the smooth governance. Article 166(2) of the
Constitution requires the decision of the State
Government to be authenticated as per the
rules framed thereunder. The Chief Minster is
the Head of the Council of Ministers is
answerable not only to the legislature, but
also to the Governor of the State. The rules
framed under Article 166(3) are in aid to
constitutional mandate embodied under
Chapter II, Part III of the Constitution.
Therefore, the decision of the State
Government must meet the requirements of
these rules also.
11 WP-9421-2022 & 2 Ors. J.
20. The Supreme Court of India in the matter of K.K. Bhalla
Vs. State of Madhya Pradesh reported in 2006 (3) SCC 581 observed
thus -
60. The State has no power to issue any general
direction. The State has furthermore no power to
interfere with the day to day functioning of the
JDA. Any such direction by the State to the officers
must be in discharge of their duties in terms of the
provisions of the Act and not otherwise. The
direction of the Chief Minister being dehors the
provisions of the Act is void and of no effect.
61. The purported policy decision adopted by the
State as regards allotment of land to the newspaper
industries or other societies was not a decision
taken by the appropriate Ministry. If a direction was
to be issued by the State to the JDA, it was
necessary to be done on proper application of mind
by the cabinet, the concerned Minister or by an
authority who is empowered in that behalf in terms
of the Rules of the Executive Business framed under
Article 166 of the Constitution of India. Such a
direction could not have been issued at the instance
of the Chief Minister or at the instance of any other
officer alone unless it is shown that they had such
authority in terms of the Rules of the Executive
Business of the State. We have not been shown that
the Chief Minister was the appropriate authority to
take a decision in this behalf. We have noticed
hereinbefore that the purported policy decision is in
respect of the lands belonging to the State and not
those belonging to the J.D.A.
21. The Affidavit in reply filed on behalf of respondents shows
that there is no attempt to justify the so-called action of review. No
circumstances leading to such action are brought on record. If the
impugned communication was mapped by exigencies of the State,
then, there was no reason to withhold such exigencies while filing
response to this writ petition. We observe that impugned actions are
12 WP-9421-2022 & 2 Ors. J.
taken in utter disregard or without adhering to the rules of business
framed under Article 166(3) of the Constitution of India. The entire
action is based on so called oral instruction issued by The Chief
Minister. The inference deducible is that the impugned decision is
indeed arbitrary, capricious and the State is finding it difficult to
substantiate it.
22. The petitioners have filed affidavit in rejoinder stating that
development works which are falling within the area of MLAs of
ruling party are allowed to continue and those fall within the
constituencies of opposition, are still halted. Though we are not
inclined to go into all these details, prima facie, the material before
us depicts that the action is tainted with mala fides. Discrimination is
exercised while prioritizing works in the constituencies represented
by the MLAs from ruling party.
23 In light of aforesaid, we have no hesitation to hold that the
impugned circular dated 23.7.2022 issued by respondent No.2 is
liable to be quashed and set aside and directions are required to be
issued to the respondents to proceed with the execution of the
development works which are subject matter of this writ petition.
24. Accordingly, we proceed to pass the following order :-
[i] The writ petitions are allowed.
[ii] Rule is made absolute in terms of prayer clauses
(B) and (C) which read thus -
" (B) This Hon'ble Court may kindly, hold and declare that
the impugned circular dated 23//07/2022 issued by the
office of the respondent No. 2 i.e. Public Works
Department, State Government is illegal, arbitrary and
violative of Article 14, 19 (1) (g) of the Constitution of
13 WP-9421-2022 & 2 Ors. J.
India and against the provisions of law, and therefore, the
same is liable to be quashed and set aside.
(C) This Hon'ble Court by issuing writ of mandamus or
any other writ order or directions in the nature may kindly
direct the respondent authorities to proceed to undertake
the works to which the administrative sanctions are
granted by the Respondents No. 2 (EXH-A) on dated
25/06/2021, 26/02/2021, 10/12/2021, 23/05/2022,
24/06/2021, 20/07/2021, 24/05/2022, 20/07/2021,
11/05/2022, 01/03/2021, 18/02/2022, 14/02/2022,
15/02/2022, 22/02/2022, 03/06/2022, 15/06/2022,
27/06/2022, 11/04/2022 to various development works in
respect of roads and construction of buildings in
Ghansawangi Taluka of District Jalna and for that purpose
issue necessary orders; "
[iii] No orders as to costs.
[ S. G. CHAPALGAONKAR, J. ] [ MANGESH S. PATIL, J. ]
mta
