Bombay High Court
Shivaji Sambhaji Khule And Others vs The State Of Maharashtra And Others on 5 March, 2025
2025:BHC-AUG:6445-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8782 OF 2018
1. Shivaji S/o. Sambhaji Khule,
Age : 61 years, Occu. Labourer,
R/o. Indiranagar, Sangamner,
Tq. Sangamner,
District : Ahmednagar.
2. Jalindar S/o. Kacharu Lahamge,
Age : 47 years, Occu. Labourer,
R/o. Vidyanagar, Sangamner,
Tq. Sangamner,
District : Ahmednagar.
3. Purushottam S/o. Bisanlal Joshi,
Age : 50 years, Occu. Labourer,
R/o. Bazar Peth, Sangamner,
Tq. Sangamner,
District : Ahmednagar.
4. Shivaji S/o. Gavram Kasar,
Age : 38 years, Occu. Labourer,
R/o. Janatanagar, Sangamner,
Tq. Sangamner, District : Ahmednagar.
5. Sunil S/o. Baburao Khare,
Age : 60 years, Occu. Labourer,
R/o. Rangargalli, Sangamner,
Tq. Sangamner,
District: Ahmednagar.
6. Goraksha S/o. Yashwant Rahane,
Age : 34 years, Occu. Labourer,
R/o. Krushnanagar, Gunjalwadi, Sangamner,
Tq. Sangamner,
District : Ahmednagar. ... Petitioners
VERSUS
1. The State of Maharashtra,
Through its Chief Secretary,
Road Transport Department,
Mantralaya, Mumbai-32.
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2. Maharashtra State Road Transport Corporation,
Through its Managing Director,
Central Office, Maharashtra Transport Bhavan,
Dr. Anandrao Nair Road,
Mumbai-400 008.
3. Maharashtra State Road Transport Corporation,
Through its Chief Engineer,
Central Office, Maharashtra Transport Bhavan,
Dr. Anandrao Nair Road,
Mumbai-400 008.
4. Maharashtra State Road Transport Corporation,
Through its Divisional Controller,
Ahmednagar Division,
Central Bus Stand, Ahmednagar.
5. Depot Manager,
Sangamner Bus Stand, Sangamner,
District: Ahmednagar.
6. Suresh S/o Dadasaheb Kokane,
Age : 39 Occu. Business,
R/o Dhandarphal (Kh.),
Tq. Sangamner Dist. Ahmednagar.
7. Anil S/o Gulabrao Walwe,
Age : 36 yrs., Occu. - Business,
R/o Dhandarphal (Bk.)
Tq. Sangamner Dist. Ahmednagar.
8. Machhindra S/o Shrikisan Katore,
Age : 45 Occu. - Business,
R/o Sangvi, Dhandarphal (Kh.),
Tq. Sangamner, Dist. Ahmednagar.
9. Devidas S/o Bhaskarrao Deshmane,
Age : 37 yrs., Occu. - Business,
R/o Dhandarphal (Bk.),
Tq. Sangamner, Dist. Ahmednagar.
10. M/s. R. M. Katore,
having office at A/6 Murli Shakuntal Complex,
Oppo. Market Yard, Sangamner,
Dist. Ahmednagar, the sole proprietary of
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Mr. Ramhari Mohan Katore,
Age : 50 yrs., Occu. Business,
R/o Govind Nagar, Sangamner,
District Ahmednagar. ... Respondents.
WITH
CONTEMPT PETITION NO.65 OF 2021
IN WRIT PETITION NO.8782 OF 2018
1. Shivaji S/o. Sambhaji Khule,
Age : 63 years, Occu. Labour,
R/o. Indiranagar, Sangamner,
Tq. Sangamner,
District : Ahmednagar.
2. Jalindar S/o. Kacharu Lahamge,
Age : 49 years, Occu. Labour,
R/o. Vidyanagar, Sangamner,
Tq. Sangamner,
District : Ahmednagar.
3. Purushottam S/o. Bisanlal Joshi,
Age : 52 years, Occu. Labour,
R/o. Bazar Peth, Sangamner,
Tq. Sangamner,
District : Ahmednagar.
4. Shivaji S/o. Gavram Kasar,
Age : 40 years, Occu. Labour,
R/o. Jantanagar, Sangamner,
Tq. Sangamner, District : Ahmednagar.
5. Sunil S/o. Baburao Khare,
Age : 62 years, Occu. Labour,
R/o. Rangargalli, Sangamner,
Tq. Sangamner,
District: Ahmednagar.
6. Goraksha S/o. Yashwant Rahane,
Age : 36 years, Occu. Labour,
R/o. Krushnanagar, Ghulewadi, Sangamner,
Tq. Sangamner,
District : Ahmednagar. ... Petitioners
VERSUS
1. The State of Maharashtra,
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Through its Chief Secretary,
Road Transport Department,
Mantralaya, Mumbai-32.
2. Ranjit Singh Deol,
Age : Major, Occu. Service,
Managing Director,
Maharashtra State Transport Corporation,
Central Office, Maharashtra Transport Bhavan,
Dr. Anandrao Nair Road,
Mumbai-400 008.
3. Rajendra K. Javanjal,
Age : Major, Occu. Service,
Chief Engineer,
Maharashtra State Transport Corporation,
Central Office, Maharashtra Transport Bhavan,
Dr. Anandrao Nair Road,
Mumbai-400 008.
4. Kailas Chandakant Kalbhor,
Age : Major, Occu. Service,
Divisional Engineer,
Maharashtra State Transport Corporation,
Ahmednagar Division,
MSRTC Nagar, Ahmednagar.
5. Balasaheb Nanasaheb Shinde,
Age : Major, Occu. Service,
Incharge Depot Manager,
Sangamner Bus Stand, Tq. Sangamner,
District: Ahmednagar.
6. Rani B. Varpe,
Age : Major, Occu. Service,
Depot Manager,
Sangamner Bus Stand, Tq. Sangamner,
District: Ahmednagar.
7. Ajay Wamanrao Bhosale,
Age : 57 yrs., Occu. - Service,
Regional Executive Engineer,
MSTC, Nasik Division,
MSRTC, Nasik, Nasik.
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8. Ramhari Mohan Katore,
Age 50 yrs., Occu. Business,
R/o Govind Nagar, Sangamner,
District Ahmednagar. ... Respondents.
...
Advocate for Petitioners : Mr. S. S. Dixit.
AGP for Respondent-State : Mr. A. S. Shinde.
Adv. for respective Respondents : Ms. R.D. Reddy (Absent).
Advocate for Respondent No.4 : Mr. D. S. Bagul.
Advocate for Respondent No.6 to 9 : Mr. Nikhil S. Jaju.
Advocate for Respondent No.10 : Mr. Vinod Y. Bhide.
Advocate for Respondent No.6 in CP : Mr. Parag V. Barde.
Advocate for Respondent No.4 in CP : Mr. S. S. Bora.
...
CORAM : S. G. MEHARE, AND
SHAILESH P. BRAHME, JJ.
RESERVED ON : 05.02.2025
PRONOUNCED ON : 05.03.2025
JUDGMENT :
(Per S. G. Mehare, J.) :-
1. Rule. Rule made returnable forthwith and heard finally
by consent of the parties.
2. The petitioners who are specially abled filed this writ
petition for allotting the shops in the complex constructed by
the respondents Nos 1 to 5 at Sangamner. They have claimed
that they have a preferential right in such premises as they
have reservation under the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation Act,
1995 ("The Act" for short). The respondent/ MSRTC has
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developed the land on build, operate and transfer (BOT
Scheme) through a builder respondent No.10. It is further case
of the petitioners that the shops in the complex should have
been allotted at the prime location to make their life
convenient considering their special ability. The Government of
Maharashtra under the above Act has framed the action plan in
2011 for protecting the rights of such persons.
3. The contesting respondent had initially opposed the
petition on the ground that since the development is not with
the Government aid therefore job reservation for such persons
in entire premises does not apply to the MSRTC being a
Corporation. However, after a long struggle, the Principal
Secretary (Transport), Mantralaya, Mumbai in a meeting dated
01.04.2019 informed that Government Resolution dated
25.07.2007 shall be followed and 3% shops shall be reserved
and be given to the disabled persons. After said meeting,
immediately 5 shops were reserved in the complex at
Sangamner Bus Stand out of 169 shops. All the petitioners
were served with letter dated 01.04.2019 calling them for a
meeting proposed on 03.04.2019 for discussion. The conscious
decision was taken to reserve the five shops for disabled
persons. However, the petitioner did not consent to take the
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shops and refused to accept the shops in the said meeting.
Even they did not sign the minutes of the meeting. Out of six,
five petitioners were present in that meeting. Since the
petitioner refused to take the shops, the Contractor was
informed that the reserved five shops should be allotted to the
disabled person on concessional rate if any. Other disable
persons respondent Nos.6 to 9 approached to him immediately.
Out of five shops, the Contractor allotted the four shops to
respondent Nos.6 to 9. Only one shop remained vacant. The
registered lease deed also executed in favour of respondent
Nos.6 to 9.
4. The petitioner has stated that the shops were allotted on
the first floor on the extreme backside of the premises, which
was in violation of the action plan scheme. The lift facility was
also not suitably available. Considering their disablement and
the rights protected under the Act, they should have been
given a shop on the ground floor. This has not been done
deliberately. For this substantial reason, they denied to get
those shops. Since the respondents were not interested to allot
the shops to the petitioners, they have deliberately produced
the another respondent Nos.6 to 9 and suddenly without
considering the rights prior in time illegally allotted the shops
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to them. Therefore, allotment to respondent Nos.6 to 9 is in
contravention and violation of the rights of the petitioners who
were claiming the shops first in time. Respondent Nos.6 to 9
were served and appeared through Mr. Jaju. However,
respondent Nos.6 to 9 did not file affidavit-in-reply.
5. Respondent No.10/Contractor has filed affidavit-in-reply.
His reply is mostly identical to the reply of the contesting
respondent/MSRTC. He has given the details of floating of the
tender executing his agreement. In addition to it, he has come
with the case that efficacious remedy lies before the
Commissioner under the Act of 1995 (09.09.2016). He has
submitted that since there was no condition for reserving 3%
of the shops for the specially abled person, he would suffer
financial loss if the shops are given on concessional rate. In
such a situation, his financial interest needs to be protected
and if the Court comes to the conclusion that the petitioner
deserve allotment of the shops, his right be protected and he is
entitled to recover the damages from MSRTC. In his affidavit-
in-reply, dated 23.04.2023 he submits that as on that date, he
was holding for 11 shops vacant for which he is paying rent to
the MSRTC, he did not parted with his possession to any third
party. If the petitioners choose them and/or in the case of
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Courts direct so, he has given the description of those shops. If
the petitioners desire on the terms specified in his agreement
as developer with MSRTC, those are available for the
petitioners.
6. Heard the respective learned counsels at length and gone
through the petition, affidavit-in-reply and rejoinder with the
abled assistance of the respective learned counsels.
7. Learned counsel for the petitioners referred to the
Government Resolutions dated 25.07.2007, 25.02.2015 and
Section 47 of the Act of 2016 (old 1996). Referring to the
above Government Resolutions and the provisions of the Act,
he has pressed into service the arguments that the specially
abled persons have the protection. The very object of the Act
was to give the equal opportunities, protection of the rights
and full participation by the person with disability. Only for
disability, they cannot be discriminated. Section 43 of the old
Act of 1995 provides for the schemes for preferential allotment
of land for certain purposes. As per the Section, the
Governments and local authorities should have framed the
schemes in favour of the persons with disabilities, for the
preferential allotment of land at concessional rate for house,
setting up business, setting up of special recreation centres,
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establishment of special schools, establishment of research
centres and establishment of factories by entrepreneurs with
disabilities.
8. The identical provision in the Act of 2016 has
incorporated under Section 37(c). Reading the above sections,
the schemes to achieve the object of the Act should have been
framed by the State Government. Pursuant thereto, the State
of Maharashtra has published the action plan for such persons.
The facts reveal that after a long battle, the contesting
respondent/MSRTC agreed to allot five shops to the
petitioners. However, the dispute arose on the location.
Admittedly, the shops reserved for the petitioners or like
persons were on the first floor. However, the petitioners
denied the same for the reason that it was not on the front side
of the building and ground floor. A small dispute arose on the
facility of the elevator.
9. The question is "can the shops on first floor be kept
reserved for the persons like petitioners"?
10. In the action plan, at point No.3.54 it has been provided
that if any such tenaments are to be allotted to such persons, it
should be given on the front side and if the claimants are more
than the tenaments reserved draw by lots should be drawn.
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11. It has been argued by the learned counsel for the
contesting respondents that since the shops were five and the
petitioners were six, they were fighting against each other.
12. When the dispute was pending before the Court and on
denial with reasons to get the shops on the first floor, the
contesting respondent/MSRTC seems to have hastily conferred
the powers upon respondent No.10 to allot the shops and he
without following the procedure allotted the shops to
respondent Nos.6 to 9. It also seems that when the scheme
was floated, they were not the applicants.
13. Learned counsel for the petitioners rely on the case of
Shivaji Vishwanath Dongre Vs. State of Maharashtra and
others ; 2006 (1) Mh.L.J. 417 . In this case, it has been held
that the petitioner is entitled to invoke extra-ordinary writ
jurisdiction of the High Court for implementation of the
provisions of the Act. Therefore, the objection as regards the
non maintainability of the writ petition was discarded. Here in
the case, the objection has been raised by respondent No.10
that an alternate efficacious remedy is available to the
petitioner. In view of the above judicial pronouncement, we
deem it fit to entertain this writ petition under the extra-
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ordinary jurisdiction under Article 226 of the Constitution of
India.
14. After examining the record with able assistance of the
respective learned counsels, we find that the shops reserved for
the disabled persons were apparently allotted to respondent
Nos.6 to 9 in contravention of the action plan of the
Government. Allotting the tenaments on concession is not
showing the mercy upon such person. Their physical disability
should be borne in mind while allotting the tenaments.
Therefore, the Government has correctly laid down the
condition in the action plan that the tenaments should be
allotted to such persons in the front and at convenient place in
the project. As per this action plan, if there are more
candidates than the tenaments reserved, the allotment should
have been done by a lottery. But, the facts reveal that making
the reason of the ahead denying the shops on the first floor, the
contesting respondent/MSRTC unauthorisedly and illegally
authorized respondent No.10 to take the decision and allot the
shops to respondent Nos.6 to 9. No procedure laid down in the
action plan has been followed. Therefore, the allotment of the
shops to respondent Nos.6 to 9 are apparently illegal and not
binding upon the petitioners. We are satisfied that the
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petitioners were the persons who put their rights into action
and after a great battle they could succeed to establish that the
scheme and the provisions of the Act also apply to the building
constructed by the MSRTC. If the claimants are more than the
tenaments, the respondent/MSRTC should have allotted it by
lottery. Therefore, we do not find substance in the argument of
the respondents that since the claimants were six and
tenaments were five, they were fighting amongst themselves.
After scanning the facts of the case and reading the relevant
provisions of law, we are of the opinion that the writ petition
deserves to be allowed. Hence, the following order :
ORDER
(i) Writ petition is allowed.
(ii) The petitioners with disability are entitled to the
allotment of the tenaments to the extent of the
reservation i.e. 3% of the total tenaments on the
front side of the building/premises.
(iii) The contesting respondents/MSRTC is directed to
proceed with for the allotment of the tenaments
by taking care of the rights of respondent No.10
on the ground floor and the front side.
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(iv) The allotment of the tenaments on the first floor
to respondent Nos.6 to 9 stands cancelled.
(v) Contesting respondent/MSRTC should follow
strictly the procedure for allotment of the shops as
mentioned above by lottery if the claimants are
more than the tenaments reserved under the Act.
The process of re-allotment and reserving the
tenaments for the persons with disability on the
front side should be done within three (3) months
from today.
(vi) In view of the above, Contempt Petition stands
disposed of.
(vii) Rule made absolute. No order as to costs.
(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)
15. After pronouncement of the judgment, learned counsel
for contesting respondent/M.S.R.T.C. seeks stay to the
judgment pronounced for eight (8) weeks, as the respondents
want to impugn judgment and order before the Supreme
Court. For completing the process, this Court has already
granted three (3) months.
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16. In the circumstances, of granting reasonable time, the
present order would not be implement. The respondents have
breathing time to move the supreme Court. Hence, we decline
the prayer.
(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)
...
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