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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
PUBLIC INTEREST LITIGATION NO. 74 OF 2010
1. Dr. Surendra Ramlal Tiwari,
aged about 44 years,
occupation - Lecturer in
Physical Education in Jyoti
College of Physical Education,
Hingna Road, Nagpur, r/o
Trimurty Nagar, Nagpur.
2. Trimurty Nagar (N.I.T.) Ground
Bachav Kruti Samiti through
its Secretary, Purushottam
Parmore, aged about 49 years,
occupation - Private, r/o L.I.G.
Colony, Trimurty Nagar, Nagpur. ... PETITIONERS
Versus
1. State of Maharashtra,
through its Secretary,
Urban Land Development
Department, Mantralaya,
Mumbai 400 32.
2. Nagpur Improvement Trust,
through its Chairman,
Civil Lines, Nagpur.
3. Nagpur Municipal Corporation,
through its Commissioner,
Civil Lines, Nagpur.
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4. Bhartiya Vidya Bhavan,
Munshi Sadan, Kulpati K.M. Munshi
Marg, Mumbay 400 007, through
constituted Attorney Shri T.G.L.
Iyer, Director, Bhartiya Vidhya
Bhavan, Nagpur Kendra, Lala
Lajpat Rai Marg, Near Museum,
Civil Lines, Nagpur. ... RESPONDENTS
Shri A.S. Jaiswal, Advocate for the petitioners.
Shri D.M. Kale, Advocate for respondent No. 1.
Shri S.K. Mishra, Advocate for respondent No. 2.
Shri C.S. Kaptan, Advocate for respondent No. 3.
Shri M.G. Bhangde, Sr. Advocate with Shri V.V. Bhangde,
Advocate for respondent No. 4.
.....
CORAM : B.P. DHARMADHIKARI &
A. P. BHANGALE, JJ.
DATE OF RESERVING JUDGMENT : SEPTEMBER 16, 2011.
DATE OF PRONOUNCING JUDGMENT : OCTOBER 12, 2011
JUDGMENT : (Per B.P. DHARMADHIKARI, J.)
By this petition, the challenge is to action of
Respondent No. 2 in allotting land reserved for Primary School,
Secondary School and Playground to Respondent No. 4 –
Educational Institution/ Trust. The petition has been accepted as
Public Interest Litigation as per orders of the learned Senior
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Judge on 02.12.2010 and on 06.12.2010 notices were issued to
the other side.
2. The facts briefly stated are : The reservation is on
Khasra No. 12 of Mouza – Bhamti included in Bhamti Parsodi
Street Scheme of Nagpur Improvement Trust (respondent 2
herein) and as per Development Plan sanctioned in the year
2001, it has reservation No. SW 164 for Primary School on area
0.176 H. Reservation No. SW 165 is on Area 0.352 H. for
secondary School and reservation No. MSW 16 for playground is
1.1136 H. The remaining reservation is for 9 mtrs. x 12 mtrs.
wide road and residential purpose.
3. The prayers in the petition are to quash an
advertisement dated 29.03.2010 with its corrigendum issued
later and the subsequent tender notice similarly published in
September 2010. The petitioners before this Court are the
residents of the area. Petitioner No. 1 is a Lecturer while
petitioner No. 2 is an association of local residents formed for
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saving the said playground.
4. One of the prayers in the petition also sought
declaration that modification of reservations suggested by
Respondent No. 3 – Nagpur Municipal Corporation vide notice
dated 26.10.2010 under Section 37 of Maharashtra Recognition
of Trade Practices Act, 1966, (hereinafter referred to as 1966
Act) by seeking deletion of reservation for Primary School and
Secondary School and to add the land thereof to playground is
legal and valid. It is not in dispute that during the pendency of
this petition, Nagpur Municipal Corporation has considered said
proposal and later on decided to withdraw it.. With the result,
original reservation as given in Development Plan stands as it is.
The position declared by Respondent No. 3 on record and vide
affidavit dated 10.08.2011 and declaration that proposal for
minor modification of Development Plan initiated under Section
37 of 1966 Act is dropped, has not been questioned in any way
though thereafter CAO No. 1182 of 2011 has been moved by the
petitioners on 24.08.2011 seeking leave to add para 16G to the
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petition. That amendment was allowed by this Court on
14.09.2011. Thus, the declaration that proposal to drop
reservations for Secondary School and Primary School is valid.
has not been pressed thereafter by the petitioners. Similarly,
though there is a subsequent tender issued in September 2010,
that second tender has also not been questioned before this
Court specifically. However, it needs to be pointed out that
resolution by Respondent No. 2 – Nagpur Improvement Trust
passed on 07.01.2011 accepting the offer received in pursuance
of that tender has been challenged by amending the prayer
clause and by adding grounds on 25.03.2011 and thereafter on
14.09.2011.
5. We have heard Shri Jaiswal, learned counsel for the
petitioner, Shri Kale, learned AGP for respondent No. 1, Shri
Mishra, learned counsel for respondent No. 2, Shri Kaptan,
learned counsel for respondent No. 3 Municipal Corporation and
Shri M.G. Bhangde, learned Senior Advocate with Shri V.V.
Bhangde, learned counsel for respondent No. 4.
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6. After pointing out the facts in brief, Shri Jaiswal,
learned counsel has urged that there are 20 Schools in the
vicinity and hence there is no need of any new Primary and
Secondary School in the area. He has contended that area is
congested one and children are having no facility of playground
and similarly elderly persons have no open space for their
Morning or Evening walk and exercise. He, therefore, contends
that the allotment of entire land with even reservation for
playground to Respondent No. 4 is contrary to provisions of Act
of 1966. He points out that in first tender notice inviting offers,
the area declared for School was 3850 square meters and an
obligation was cast upon successful bidder to develop area ad-
measuring 13666 sq. mtrs. as playground and garden. The
aspirant was expected to have minimum annual turn over
exceeding Rs. 10 crores in any three financial years and net
worth of Rs. 5 crores. This could not materialize and then
similar notice was again published in September 2010 and in this
revised tender, the minimum annual turn over exceeding Rs. 10
crores was maintained as it is and net worth of Rs. 10 crores as
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on 31.03.2010 was asked for. The condition that bidder must
have previous experience of running and managing or must own
at least five Schools or Colleges over past 5 years was also put.
He argues that as there was no response to March 2010 tender,
the conditions needed to be relaxed but here in later invitation,
conditions were made more stringent.
7.
In this background, he has invited attention to clause
9 of the tender notice to urge that entire playground as also
garden is to be used by the School and thus it no longer remains
available for the children residing in the locality or for general
public throughout the day. He contends that the conditions in
the tender have also been modified later on to suit the
Respondent No. 4 and allotment to it on 07.01.2011 is malafide.
Attention is invited to admitted fact that the father of Chairman
of Respondent No. 2 – Trust is on Local Executive Committee (for
Nagpur) of Respondent No. 4. It is urged that because of this,
the condition later published on 06.09.2010 show distinct
changes to see that it can be allotted only to Respondent No. 4.
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The learned counsel has invited attention to provisions of Section
16(1)(d) of Nagpur Improvement Trust Act, 1936, to contend
that if really Chairman of Respondent No. 2 had abstained from
meeting in which resolution in favour of Respondent No. 4 came
to be passed by Respondent No. 3, it was obligatory for the
Trustees to elect somebody as Chairman to preside over that part
of meeting. He contends that declaration of interest has come at
the end of business transacted and the Chairman of Respondent
No. 2 has refused to participate only in decision on the subject
and there is nothing on record to show that he did not
participate in deliberations. It is contended that because of
influence Respondent No. 4 and Chairman of Respondent No. 2,
the condition to allot the reserved land to CBSE School or then
stringent conditions like experience and minimum number of
Schools etc. came to be added. The resolution dated 07.01.2011
passed by Respondent No. 2 is, therefore, challenged as invalid
and unsustainable, as also illegal.
8. Our attention is invited to provisions of Section 22(c)
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of Act of 1966. The learned counsel states that reservation in
Development Plan for playground is a separate entry and
reservation for garden or park is an independent reservation.
When the land in the lay out is reserved for playground, it
cannot be permitted to be used as garden or park. The support
is being taken from Division Bench judgment of this Court in the
case of Sarvajanik Shri Ganeshotsav Mandal, Mumbai & Anr. vs.
Municipal Corporation of Greater Mumbai & Ors., reported at
2006 (4) Mh. L.J. 207, particularly paras 13, 14 & 20 for this
purpose. It is reiterated that because of congested position and
availability of large number of schools in the locality, the
petitioners need a playground. That need is rightly recognized
in Development Plan and hence the playground cannot be
allowed to be put to any other use and cannot be allowed as a
playground to Respondent No. 4 – School.
9. Shri Mishra, learned counsel for Respondent No. 2
states that the petition as filed is not a bonafide or genuine
attempt to redress public grievance. He points out that petition
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has been filed on 01.12.2010 i.e. long after second invitation
dated 06.09.2010, and still it does not contain any challenge or
reference to that tender notice. The effort in the petition was to
have entire ground for playground without any reservation for
school and this was after Nagpur Municipal Corporation passed a
resolution to propose modification under Section 37 of Act of
1966 for this purpose. Respondent 3 Nagpur Municipal
Corporation has dropped that proposal and as petition seeks
something which is contrary to Development Plan, it is not in
public interest. He further contends that proposed reservation in
Development Plan exists since the year 2000 and it is nowhere
the case of the petitioner that reserved land is the only
playground available in the locality. He contends that because of
Section 31(6) of Act of 1966, Development Plan is binding on
Nagpur Improvement Trust. As reservation is for School, the
condition that such School has to be recognized by CBSE is good
and valid. He points out that no objection was raised by
petitioners or any residents before Development Plan was
finalized. In Writ Petition, there is only challenge to tender as
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published on 29.03.2010 and though it has been amended
subsequently twice, there is no express challenge to tender as
published on 06.09.2010.
10. In response to earlier tender dated 29.03.2010, the
only offer of Rs.1.08 Crores was received whereas an amount of
Rs.2.5 Crores was needed for playground development. Hence,
that tender notice was cancelled and fresh tender was published
on 06.09.2010. In fresh tender, Rs.2.5 Crores are stipulated for
the School plots. He contends that the project is Public Private
Participation Project (PPP) and there is no question of any loss to
public revenue. Though two tenders were received, only one
continued its offer on 20.10.2010 when tenders were opened.
Offer of Respondent No. 4 was found above upset price and
Respondent No. 4 had offered Rs. 5.31 Crores. These
developments are not being questioned in writ petition. It was
amended in March 2011 to incorporate challenge to resolution
dated 07.01.2011 and thereafter in September 2011. In this
background, it is contended that Section 16(1)(d) of NIT Act is
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not attracted in present facts. There were total 78 different
subjects before trustees on 07.01.2011 and only one valid offer
was available for consideration. There is no prejudice to
anybody because of that grant. He has invited attention to
photograph placed on record to point out how four play-courts
are to be developed in playground within 18 months.
Respondent No. 4 has agreed to pay Rs. two lakh per year for
maintenance of playground. It is further stated that the
Chairman of Respondent No. 2 (Shri Sanjay Mukherjee) against
whom allegations of bias are made, was transferred in June 2011
and he has not been joined in person. Attention is invited to
reply of Respondent No. 2 to amendment effected by the
petitioners to point out how the playground is to be used. He
further points out that tender also permitted consortium to be
formed and hence it cannot be alleged that conditions in it were
tailor-made.
11. Shri Bhangde, learned Senior Advocate for
respondent No. 4 has assailed the bonafides of the petitioners.
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According to him, petition is not filed in public interest but the
petitioners are actually puppets in the hands of other School
managements in the area. He points out that cost of each tender
notice was Rs.10,000/- and here though the petitioners have
annexed both these tenders, they have not disclosed the source
from which they got its copy. He contends that the petitioners
have not purchased the same. Similarly, attention is invited to
communication/ letters dated 25.11.2008, 07.05.2010,
07.04.2010, resolution dated 12.04.201, copy of note sheet
produced as Annexure P-10 and also copy of impugned
resolution dated 07.01.2011 to contend that the same could not
have become available to the petitioners in normal course. The
impugned letter of intent dated 18.01.2011 is also pointed out to
be of similar nature. Attention is invited to reply filed to CAW
No. 1182 of 2011 to contend that appropriate stand in this
respect is already taken by Respondent No. 4 on record and the
petitioners have not chosen to explain the position. The
judgment of the Hon’ble Apex Court in the case of Dr. B. Singh
vs. Union of India & Ors., reported at (2004) 3 SCC 363, is
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pressed into service to urge that in such circumstances, no
cognizance of the controversy can be taken as PIL and the
petition needs to be dismissed with heavy costs.
12. The recent judgment delivered by the Hon’ble Apex
Court in the case of State of M.P. vs. Narmada Bachao Andolan,
reported at (2011) 7 SCC 639, is pressed into service to
emphasize the need of correct pleadings in such challenge. It is
contended that there is no challenge in entire matter to use of
reserved land for the playground as garden. The use of portion
of land reserved for playground as garden is not fatal and DP
reservation cannot be said to be violative thereby as user
substantially remains the same. Attention is invited to the
judgment of the Hon’ble Apex Court in the case of Forward
Construction Co. vs. Prabhat Mandal (Regd.), Andheri, reported at
(1986) 1 SCC 100, to substantiate this contention.
13. The judgment of this Court in the case of Sarvajanik
Shri Ganeshotsav Mandal, Mumbai & Anr. vs. Municipal
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Corporation of Greater Mumbai & Ors., (supra) relied upon by the
petitioners is sought to be distinguished by pointing out that the
judgment of the Hon’ble Apex Court relied upon by Respondent
No. 4 was not required to be looked into in it. He further states
that there plot reserved for playground was sought to be
developed into swimming pool and sports complex and it was
found contrary to Development Plan. Here, earlier user as per
development plan substantially continues.
14. He further points out that there is no challenge even
to second tender published on 06.09.2010 and there is no plea
that the conditions therein are tailor-made to suit Respondent
No. 4. The subsequent amendments effected by the petitioners
show that they had an opportunity to challenge later tender also
but the same has not been availed. The condition to permit only
CBSE School on reserved land is also not available. There is no
argument and challenge pointing out any damage to public
interest. In this connection, support is being taken from the
judgment in the case of Jagdish Mandal vs. State of Orissa,
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reported at (2007) 14 SCC 517. By pointing out para 21, it is
urged that as a contract is entered into between Respondent No.
4 and Respondent No. 2, scope of judicial review under Article
226 of Constitution of India is very limited and challenge as
raised does not call for any such interference.
15. The judgment of the Hon’ble Apex Court in the case
of Directorate of Education vs. Educomp Datamatics Ltd., reported
at (2004) 4 SCC 19, is also relied upon to show how terms and
conditions of tender need to be appreciated and the limited role
available to Courts of law in such matter. The learned counsel
states that the entire challenge on this count is without any
merit.
16. Inviting attention to proceedings of meeting of
Respondent No. 2 dated 07.01.2011, it is contended that the
relationship sought to be established between the Chairman of
Respondent No. 2 and Respondent No. 4 Society is too remote.
Again reply filed to CAW No. 1182 of 2011 is pressed into service
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for said purpose. Respondent No. 4 is old society registered at
Bombay and subsequently under Bombay Public Trust Act. The
resolution was passed on 15.10.2010 at Bombay to participate in
tender process of Respondent No. 2 and letter of intent was also
forwarded to Respondent No. 4 at Bombay. Respondent No. 4
has come into picture only after publication of tender notice and
the decision to modify tender conditions. Similarly, decision to
accept offer of Respondent No. 4 and to issue it a letter of intent
is taken by Board of Trustees of Respondent No. 2 and not by its
Chairman. These trustees are members of Respondent 2 and
there is no allegation of malafides against any of them. It is
urged that there were total six trustees. In this situation, it is
contended that only for one subject for which there was only one
offer, complete & valid in all respect; it was legally not necessary
for the Chairman of Respondent No. 2 to recuse himself. In any
case, it was not necessary for other trustees to appoint any other
person as the Chairman while considering the said subject. The
judgment of the Hon’ble Apex Court in the case of Javid Rasool
Bhat vs. State of Jammu & Kashimir, reported at (1984) 2 SCC
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641 is pointed out to show how bias in such matter needs to be
looked at. It is contended that here, the Chairman has not
participated in deliberations and was not party to decision. His
mere physical presence, therefore, was not sufficient and cannot
be construed as a fact sufficient to influence the decision making
process. The Full Bench judgment of Madhya Pradesh high-court
in the case of State through Local Self Government Department,
Bhopal vs. Beni Pd. Rathore, reported at AIR 1996 M.P. 101, is
pressed into service for evaluating presence of Chairman in
meeting on 07.01.2011. The learned counsel states that in this
situation, merely because another person is not elected as
Chairman under Section 16(1)(d) of NIT Act, that by itself is not
sufficient to vitiate the resolution dated 07.01.2011.
17. Lastly, attention is invited to the fact that in the said
area, there is no playground since last about 10 years and land
though reserved, is having only shrubs and wild grass, it cannot
be, therefore, used for any purpose. If the petitioners were/are
really interested and acting in public interest, they must explain
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why they have not approached any of the authorities or this
Court earlier in point of time for getting said land cleared and for
its use as per development plan.
18. Shri Jaiswal, learned counsel, in reply, has contended
that the residents of Trimurti Nagar are entitled to have
playground and that playground cannot be used for School. The
judgment of the Hon’ble Apex Court in the case of A. Abdul
Farook vs. Muncipal Council, Perambalur, reported at (2009) 15
SCC 351, is relied upon to urge that in such matters, Court
cannot take too technical approach. It is reiterated that in later
tender, instead of relaxing the terms and conditions, same have
been made more harsh only to favour Respondent No. 4. None
of the documents produced on record by petitioners are pointed
out as incorrect or false, & hence Respondent No. 4 should not
hide behind technicalities. It is also argued that the Chairman of
Respondent No. 4 duly communicated his interest in awarding
tender to Respondent No. 4 on 07.01.2011 and his presence,
therefore, has influenced the entire proceedings. He, therefore,
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sought for an order in favour of the residents of Trimurti Nagar.
19. Recent judgment on which Shri Jaiswal, learned
counsel has placed reliance is in the case of A. Abdul Farook .vrs.
Municipal Council, Perambalur (supra). Paragraph no.33 there
contains observations of Hon’ble Apex Court that in a public
interest of a nature as before it, it is not necessary for the Court
to abide by strict rules of pleadings and even if it is found that
petitioners are busy bodies, Courts while discharging them can
proceed to deal with the public interest litigation suo motu.
Earlier judgments have been also noted to show that the public
interest litigation is inquisitorial in nature, while private
litigation is adversarial. In public interest litigation Court is not
supposed to strictly follow ordinary procedure. Hon’ble Apex
Court finds permanent arches allowed to erected by municipal
council in political interest and not in public interest.
20. Shri Bhangde, learned Senior Counsel has relied
upon the later judgment of larger bench of Hon’ble Apex Court in
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the case of State of M.P. .vrs. Narmada Bachao Andolan (supra),
to urge that the law on pleadings is also applicable to public
interest litigation. Perusal of paragraph nos. 8 to 11 of the said
judgment show the purpose of pleadings and issues. The Hon’ble
Apex Court has observed that if any factual or legal issue, despite
having merit has not been raised by the parties, the Court should
not decide the same, as the opposite counsel does not have a fair
opportunity to answer the line of reasoning adopted in that
regard and such a judgment may be violative of principles of
natural justice. In paragraph no.12, the Hon’ble Apex Court has
observed that every technicality in procedural law is not
available as a defence in matters of grave public importance. In
paragraph no.13, it is observed that there must be sufficient
material in petition on the basis of which the Court may proceed.
Public interest litigation must have factual foundation to show
basis on which litigant is claiming relief and information
furnished by him should not be vague and indefinite. Proper
pleadings are necessary to meet the requirements of principles of
natural justice. Even in public interest litigation, litigant cannot
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approach the Court to have a fishing and roving enquiry. In
public interest litigation before the Hon’ble Apex Court,
impression was given that some drastic steps would be taken by
the authorities causing great hardship to large number of
persons. The petition however, did not disclose the factum of
number of persons who had already vacated their houses and
handed over possession. Contention was urgent measures were
required to be taken by the Courts and Hon’ble Apex Court has
noted that there was no material to adjudicate upon the issue
involved in the public interest litigation. High Court in this
background had directed the Authority to submit report on
rehabilitation work and authority vide its report then pointed out
a huge amount of several thousand crores already invested and
disbursed. Majority of the families had already shifted and
amount of Rs. 9924 Crores was already disbursed amongst the
claimants and sum of Rs. 589 Crores was only left to be
disbursed. The Hon’ble Apex Court has noted that there were
no pleadings before the High Court on the basis of which a Writ
Petition could have been entertained and decided and it
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deserved rejection at threshold. It is also noted by the Hon’ble
Apex Court that even in public interest litigation, in absence of
such factual matrix, similar course can be followed by the Courts.
This judgment therefore shows total absence of pleadings on
facts vital for consideration & completion of more that 95% of
rehabilitation has weighed with Hon. Apex Court. Such is not the
position here.
21. In Dr. B. Singh .vrs. Union of India and others
(supra), the Hon’ble Apex Court has considered the issue of
bonafides of petitioner after observing that time has come to
weed out the petitions which though titled as public interest
litigation are in essence something else. The Courts at times
entertain such private disputes which results in wasting of
valuable judicial time. It has been noted that in service matters,
public interest litigation are not entertained. The Hon’ble Apex
Court has noted that such public interest litigation could have
been thrown out by the High Court. Tendency growing slowly to
permit setting in motion criminal law jurisdiction often
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unjustifiably just for getting publicity and giving adverse
publicity to the opponent, is also noted. In the process it is also
observed that official documents are being annexed without even
indicating as to how the petitioner could possess them. The
story of accidentally finding such documents was not believed.
Where such petitioner does not have even a remote link with the
issue involved, the Hon’ble Apex Court has stated that it becomes
imperative for Court to lift the veil and uncover the real purpose
of the petition and the real purpose of the petition and real
person behind it. The issue before the Hon’ble Apex Court was
about a petition purported to have been filed questioning the
propriety of a person being considered for appointment as a
Judge.
22. None of the respondents have contended that present
issue cannot form a subject matter of scrutiny in Public Interest
Litigation. The details of reservation with respective earmarked
area are already mentioned by us above. It is the stand of
Nagpur Improvement Trust that it is not required to obtain
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development permission from Nagpur Municipal Corporation in
respect of developments undertaken by it as a development
agency and State Government through its notification dated
27.02.2002 has clarified that it can continue functioning as
Planning Authority for such developments undertaken by it. We
find that notification issued continues Respondent 2 for limited
purpose in areas transferred to Municipal Corporation. Present
area i.e. Bhamti Parsodi area is one such area. Though
petitioners have raised this issue in para 4 of their petition, no
arguments about absence of authority in Respondent 2 are
advanced by them. The Respondents like State of Maharashtra,
Nagpur Corporation have also not argued any thing in this
respect. However, in affidavit dated 11.08.2011 sworn by
Ravindra Rambhau Kumbhare, Additional Municipal
Commissioner, states that “The Nagpur Improvement Trust,
which was planning and development authority in respect of
these reserved lands prior to 27th February, 2002, had submitted
objection to the proposed development plan”. But none of the
learned Counsel have thought it proper to invite our attention to
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it. We fail to understand whether use of past tense in this
statement has any significance. The effort made by citizens to
secure entire land from Khasra No. 12 as playground by deleting
reservation of Primary School and Secondary School and for that
purpose to seek minor modification in final Development Plan as
per Section 37 of Act of 1966, could not succeed. But then
details of those 20 schools in para 11 of the petition are not in
dispute. The petitioners as also respondents have not invited
attention of Court to proceedings of pre-bid meeting conducted
by the Chairman of Respondent No. 2 on 17.09.2010. Two of
the institutes interested in submitting tender are reported to
have participated in it. However, minutes do not record their
names. First clarification given by Respondent No. 2 is about
area of land under School project. It is stated to be revised to
4125.50 sq. mtrs. or 1.02 Acres. This seems to be because of
requirement of CBSE that plot of School to be recognized by it
must have area above one Acre. The provision in clause 5.8(2)
of the tender document has been amended accordingly and
reserved price has also been modified to Rs.2.75 Crores. The
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timings for use of playground and garden for School are revised from
Morning 8.30 to 4.30 in the evening. For general public time given is
5.00 AM to 8.00 AM and 5.00 PM to 9.00 PM. T.C. (Terms and
Conditions) and charges for use of playground and garden for School
are stated to be Rs.2 lakh per year with 5% increase per year over
previous year and Respondent No. 2 has agreed for arranging
maintenance of garden. Ownership of playground and garden is
stated to be with Nagpur Improvement Trust. No ground floor
construction is permitted except for staircase and lift. The
requirement of 4.50 meter from Ground level to the beam soffit of stilt
parking is also clarified. The question about grant of relaxation for
marginal space for better planning of School is answered by stating
that relaxation shall be allowed as per Development Control Rules.
The detailed specification and estimate for the development of
playground and garden is stated to be enclosed along with some
communication as Annexures Y & Z. One of the queries required
Respondent No. 2 to specify timing of restaurant for general public.
This timing is specified to be from 5.00 PM onwards.
23. The perusal of tender document vide clause 5.5.2(xi)
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shows that 10 seats in the School every year are to be filled in
exclusively on recommendations of Chairman of Respondent No.
2. The tender document states playground and garden as Project
A and Primary and Secondary School as Project B. The perusal of
clause 5.5.2 (xii) shows that if bidder fails to comply (Garden
project), it would be considered as major breach of terms and
conditions. Thus, failure to comply with playground part
perhaps is not a major breach.
24. This perusal of minutes of pre-bid meeting with
tender document, therefore, reveals a further reduction in the
area of playground. The area for school is increased and some
area of playground is also allowed to be developed as a garden.
In Section 22(c) of Act of 1966, playground is an independent
reservation implying thereby that it cannot be construed to mean
reservation for park or garden. In other words, it may require
minor modification under Section 37 of the Act of 1966. The
garden as also playground is to be used by School during day
time and it becomes available to public only after 5.00 PM.
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Thus, children in the locality who are beneficiaries of that
Development Plan reservation are supposed to play between
5.00 AM to 8.00 AM and 5.00 PM to 9.00 PM. Insofar as garden
is concerned, very same time limits apply. Not only this, but
indirectly a commercial user is also permitted and a restaurant is
allowed to come up either in playground or in garden. That
facility perhaps is to be used by School and person running it can
cater to general public after 5.00 PM. Such person will obviously
be a contractor as Respondent 4 or School will not run a
restaurant for general public. Such commercial user and such
exploitation of property or garden has not been communicated
to general public as there is no such mention in documents
inviting offer. Clause 5.3 of tender describes the entire area to
be purely residential area. Not only this, but availability of area
as per CBSE requirement is also not disclosed to general public.
It cannot be presumed that other institutions having CBSE
affiliation and running Schools in the Country would not have
been interested in opening a School in the city, had they known
that land as required by CBSE with such facilities is available for
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them. It is equally important to note that this meeting dated
17.09.2010 has been chaired by the Chairman of Nagpur
Improvement Trust against whom there are allegations of bias
and partiality. As per tender document, cost of project A
(playground & garden) to be borne by Respondent 4 is Rs. 2.50
Crores minimum & it is as per NIT’s 2008-09 CSR. But then offer
on that basis & for that sum is being accepted in 2010–2011 ie.
almost 2 years later. No pains are taken to point out CSR rates
for 2010-2011. It also needs mention that last date of E-
submission of tender was 05.10.2010 & opening has been on
05.10.2010. But then body of Respondent 4 at Mumbai did
resolve to participate in tender on 15.10.2010.
25. Shri Jaiswal, learned counsel has relied upon the
Division Bench judgment of this Court in the case of Sarvajanik
Shri Ganeshotsav Mandal, Mumbai vs. Municipal Corporation of
Greater Mumbai, (supra) In this judgment, open space reserved
for Development Plan or playground was being put to use as
park. The Hon’ble Division Bench has noted that ordinary
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meaning of playground is a outer area for children to play on or
on piece of land set up for open air recreation, specially for
children or then one connected with School. The judgment of
learned Single Judge of this Court in the case of C.R. Dalvi and
Ors. vs. Municipal Corporation of Greater Bombay and Ors.,
reported at 1986 Mh. L.J. 373, holding that such land reserved
in Development Plan cannot be utilized for any purpose other
than play of children and similar recreational activities is also
noted by Division Bench. In para 20, the Division Bench then
notices that playground, swimming pool, gymnasium and park
even though covered under the head (Recreational grounds and
facilities) is a separate and distinct “use” category and cannot be
put to interchangeable use wholly or partly. The Division Bench,
therefore, found that swimming pool can never be covered by
expression playground or vice versa. The Division Bench
concluded that land reserved for playground cannot be
permitted for the purpose of swimming pool and sports complex.
26. Shri Bhangde, learned counsel has relied upon the
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judgment in the case of Forward Construction Company vs.
Prabhat Mandal (Regd.) Andheri, (supra), where the reservation
was for bus depot and the land was sought to be put to use by
compounding bus depot with commercial activity of a shopping
complex. The plot was in commercial road and was acquired by
Municipal Corporation for bus depot and ultimately was used for
bus depot with commercial purpose. The Hon’ble Apex Court
held that it did not constitute “change”. It is noted that general
meaning of word change is “to make or become different, to
transform or convert”. If the user was to be completely or
substantially changed, only then the prior modification of
Development Plan was necessary. In facts before the Hon’ble
Apex Court, user of plot was not changed. It was being used as a
bus depot with commercial use to augment income of
corporation for public purpose. It is, therefore, obvious that a
plot in commercial area acquired for bus depot was being used
not only for bus depot but also for commercial purpose. Both
user were legal and also possible.
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27. The judgments on which respective counsel have
placed reliance show that where original reservation is not in any
way increased and an activity incidental thereto is taken up, the
Hon’ble Apex Court has found that such activity is not in
violation of Development Plan reservation. Here, Respondent
No. 2 has limited powers of continuing with development
already undertaken and in case, area of respective reservation
i.e. under DP reservation is to be changed, it must obtain
previous approval of Respondent No. 3 – Nagpur Municipal
Corporation. Similarly, its changing purposes by putting part of
land to use as garden or then for commercial purpose as
restaurant, the object behind providing entire land for
playground is definitely frustrated. For use of certain facilities
in playground, the children/ their parents are supposed to pay.
Charges for use of tennis court , throw ball, basket ball, skating
rink, table tennis, craft etc. for equipments & maintenance of
these Courts are to be worked out by Respondent No. 2. Only
playground to be handed over and available to children free of
costs. It does not speak anything about restaurant. In facts
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before this Court, the area of playground is being reduced, a
garden though not envisaged in DP is introduced & is proposed
in part of playground. Similarly, commercial user by allowing
restaurant open to public is also permitted. The area for school
is also increased. It is, therefore, obvious that all these changes
cannot be viewed as residential and in this situation, test of
substantial user cannot be applied.
28. This brings us to question of the presence of the
Chairman of Respondent No. 2 during the meeting. The
proceedings no doubt record that the interest which Chairman of
Respondent No. 2 had in the subject was disclosed by him and
thereafter on 07.01.2011 the decision has been taken. The
minutes record the history and in the meeting of trustees nobody
appears to have either moved that subject or seconded it. None
of the parties had raised any contention in this respect and hence
we are also not basing our adjudication upon this aspect. But at
the end of minutes, the fact of disclosure of interest is recorded.
The Chairman had disclosed that his father is a Committee
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Member of Respondent No. 4 for Nagpur area. Hence, the
Chairman would not participate in taking decision and the
Trustees, therefore, had to take appropriate view on merits. It is
further recorded that this fact was noted by trustees and then
approval was given to allotment of 4125.50 sq. mtrs. of land on
premium of Rs.281 lakh to Respondent No. 4. This also shows
that there was no discussion at all.
29. The perusal of judgment in the case of Javid Rsool
Bhat vs. State of Jammu and Kashmir, (supra) reveals that there
contention was that the selection of candidates was vitiated
because of presence of father of one of the candidates on
Selection Committee. The Principal of Medical College, Srinagar,
whose daughter was a candidate for admission to Medical
College had informed Selection Committee at the very outset
about it and had also stated that he would not be concerned with
written test and would not be present at the time of interview of
his daughter. The other members of Selection Committee
accepted and did not think it necessary to advise Government to
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appoint a substitute member of Selection Committee. The
Hon’ble Apex Court has noted that the procedure adopted by
Selection Committee and members concerned was not in
accordance with well known and accepted procedure. It is also
noted that in the absence of malafides, it would not be right to
set right the selection merely because one of the candidates
happened to be related to Member of Selection Committee. In
para 14, the Hon’ble Apex Court has noted facts in case of A.K.
Kraipak vs. Union of India, reported at AIR 1970 SC 150, and
then concluded that in facts before it when other candidates
were interviewed, Principal was not aware of marks obtained
either by his daughter or by any other candidate and there was
no occasion to suspect his bonafides even remotely. There was
not even a suspicion of bias and hence there was no violation of
principles of natural justice.
30. In State of M.P. Through Local Self Govt. Department,
Bhopal vs. Beni Pd. Rathore, (supra), Full Bench of Madhya
Pradesh has considered similar aspect but in case of meeting of
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no confidence and then noted that requirement of a law to
preside over meeting if President is present, contemplated not
mere physical presence but presence coupled with readiness to
preside over the meeting and in the absence of President or in
the event of his declining, it was for Vice President to preside.
31. In facts which we have noticed, the decision as to
area under reservation was taken at the time of pre-bid meeting.
But then it was not made known to general public. The
premium amount was proportionately raised but it was not
communicated to public. That meeting was conducted by the
Chairman himself. The material changes and diversions from
development plan are already noted by us above and absence of
any details on the issue is also noted by us. We, therefore, find
that in such situation, it was obligatory for Respondent No. 2 as
also Respondent No. 4 to bring on record the circumstances in
which the changes were brought and accepted. Respondent No. 2 has
remained satisfied by throwing burden on the shoulders of the
petitioners and by contending that as necessary details are not
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pleaded, this Court cannot take cognizance of the matter as
Public Interest Litigation. There bonafides have been questioned
by pointing out the production of documents which normally
could not have reached them. In these facts, we do not find that
production of documents by itself show any oblique motive. The
issue brought by them before Court is in public interest and they
have succeeded in pointing out how a development plan
reservation is being violated.
32. The judgment of the Hon’ble Apex Court in the case
of Dr. B. Singh vs. Union of India, (supra) considers the filing of
PIL in service matters. We find observations therein not
applicable directly in present facts. In any case, we are not in a
position to find out any oblique motive with the petitioners who
are residents of the area. The existence of about 20 Schools in
the vicinity and, therefore, no need of any other School is
already on record. Therefore, only Planning authority had
proposed minor modifications under Section 37 of Act of 1966
by deleting reservation for School by adding said land to
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playground. However, later on the said authority viz.,
Respondent No. 3 has gone back on its proposal.
33. State of Madhya Pradesh vs. Narmada Bachao
Andolan, (supra) shows the application of law of pleadings. In
present matter, necessary material is already on record and the
petitioners have sufficiently pleaded their case of violation of
development plan reservation. The first question which arises
for consideration is whether in such circumstances when several
Schools are available in the vicinity, the State Government or any
other authority which has to permit the School to be open, is
duty bound to grant permission to Respondent No. 4 merely
because of Development Plan reservation. The other question is
whether Planning Authority in the light of provisions of Section
31(6) of Act of 1966 can alter the area of land under reservation
and whether Respondent No. 2 – who has been given limited
role, can do so without recourse to provisions of Section 37
thereof. It is also not understood how a public authority like
Respondent No. 2 can seek reservation of 10 seats from
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Respondent No. 4 in such matters. All these issues definitely are
issues in larger public interest.
34. Shri Bhangde, learned Senior Advocate has
contended that courts have limited jurisdiction while
appreciating the terms and conditions of the tender. The perusal
of judgment in the case of Directorate of Education vs. Educomp
Datamatics Ltd., (supra), particularly paras 11 & 12 show that
terms and conditions are prescribed by competent authority
bearing in mind the nature of contract and such authorities are
best judges to prescribe the same. It is not for the courts to
comment whether better conditions and terms could have been
prescribed. In such matters, such authorities need to be given a
free hand. The State Government can choose its own method to
arrive at a decision and fix its own terms of invitation to tender
and that is not open to judicial scrutiny. However, the Hon’ble
Apex Court has also found that Court can examine decision
making process.
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35. In A. Abdul Farook vs. Municipal Council, Perambalur,
(supra), the Hon’ble Apex Court has held that in public interest
litigation, it is not necessary for courts to abide by strict rules of
pleadings and such litigation is inquisitorial in nature. The
question before the Hon’ble Apex Court was regarding erection
of arches and no objection certificate issued by Municipality to
construct the same on the condition that there would be no
hindrance to traffic. The Secretary of District Consumer Council
had filed writ petition for issuance of writ of mandamus
forbearing the respondents from putting up such arches. There
was also challenge to a Ward Member, who sought certiorari for
quashing no objection certificate. The learned Single Judge
dismissed that writ petition. In turn, appeal was preferred. The
Division Bench of High Court dismissed that appeal as also writ
petition and then the Secretary of District Consumer counsel and
Ward Member approached the Hon’ble Apex Court. The Apex
Court allowed the appeal. It is noted by the Hon’ble Apex Court
in para 37 that though the authorities may grant permission to
construct such permanent structure, there must be public interest
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in carrying it out not in private interest or interest of any
political party. The judgment, therefore, shows that whenever a
public interest is found, the Court can interfere in public interest
litigation without bothering for technical objections as attempted
to be raised by the respondents.
36. We find it necessary to mention State of Uttarnchal
vs. Balwant Singh Chaufal, reported at AIR 2010 S.C. 2050
=(2010) 3 SCC 402, where Hon’ble Apex Court has laid down
certain norms and important out of it are :–
“(3) The courts should prima facie verify the
credentials of the petitioner before entertaining a P.I.L.
(4) The court should be prima facie satisfied regarding
the correctness of the contents of the petition beforeentertaining a PIL. (5) The court should be fully
satisfied that substantial public interest is involved
before entertaining the petition. (6) The court shouldensure that the petition which involves larger public
interest, gravity and urgency must be given priority
over other petitions.(7) The courts before entertaining
the PIL should ensure that the PIL is aimed at
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court should also ensure that there is no personal
gain, private motive or oblique motive behind filingthe public interest litigation. (8) The court should also
ensure that the petitions filed by busybodies for
extraneous and ulterior motives must be discouraged
by imposing exemplary costs or by adopting similarnovel methods to curb frivolous petitions and the
petitions filed for extraneous considerations. ”
While tracing history of PIL in country, Hon’ble Apex
Court noted that the public interest litigation is an extremely
important jurisdiction exercised by the Supreme Court and the
High Courts. The Courts in a number of cases have given
important directions and passed orders which have brought
positive changes in the country. The Courts’ directions have
immensely benefited marginalized sections of the society in a
number of cases. It has also helped in protection and
preservation of ecology, environment, forests, marine life,
wildlife etc. etc. The court’s directions to some extent have
helped in maintaining probity and transparency in the public
life. Hon’ble Apex Court while exercising its jurisdiction of
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judicial review realized that a very large section of the societybecause of extreme poverty, ignorance, discrimination and
illiteracy had been denied justice for time immemorial and in
fact they have no access to justice. Predominantly, to provide
access to justice to the poor, deprived, vulnerable, discriminated
and marginalized sections of the society, Hon’ble Court has
initiated, encouraged and propelled the public interest litigation.
The litigation is upshot and product of Hon’ble Apex Court’s
deep and intense urge to fulfill its bounded duty and
constitutional obligation. The courts expanded the meaning of
right to life and liberty guaranteed under Article 21 of the
Constitution. The rule of locus-standi was diluted and the
traditional meaning of ‘aggrieved person’ was broadened to
provide access to justice to a very large section of the society
which was otherwise not getting any benefit from the judicial
system. In paragraph 36, Hon’ble Apex Court observes that little
Indians in large numbers seeking remedies in courts through
collective proceedings, instead of being driven to an expensive
plurality of litigations, is an affirmation of participative justice in
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our democracy. Hon’ble Court states that the narrow concepts of
’cause of action’, ‘person aggrieved’ and individual litigation are
becoming obsolescent in some jurisdictions.
37. Thus there can not be any estoppel or
acquiescence in such matters by local residents when this Court
has found the cause presented to it as public cause & cognizance
is taken in larger public interest. The limitations laid by Hon’ble
Apex Court can not enable the wrongdoers & manipulators to
hide behind the technicalities or by continuing to indulge in
activities prejudicial to public at large. In Mohd. Aslam v. Union
of India, (2003) 4 SCC 1, Hon’ble Apex Court has considered the
technical objections raised in situation when it has treated
letters, telegrams or postcards or news reports as writ petitions.
In such petitions, on the basis of pleadings that emerge in the
case after notice to different parties, relief can be given or
refused. Therefore, Court should not approach matters where
public interest is involved in a technical or a narrow manner.
Particularly, when Court has entertained the petition, issued
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notice to different parties. It would not be appropriate for the
Court to dispose of the petition on such grounds. In proceeding
before Hon’ble Apex Court initiated as a public interest petition,
several reliefs were claimed but after the interested parties were
impleaded and their pleadings were put forth, Hon’ble Apex
Court gathered what crystallized therefrom as the controversy
involved. Jagdish Mandal vs. State of Orissa, (supra) laying down
scope of judicial review in award of contracts is therefore not
attracted & decisive in present facts.
38. In this situation, we find that respondents 2 & 3
have not made clean breast of matter. These Respondents along
with last Respondent are trying to take shelter behind
technicalities. Violation of final development plan and injury to
rights of local residents for whose benefit the reservation exists is
sufficiently established and needs redress in public interest.
Respondent no. 1 State of Maharashtra has not found it
necessary to clarify the position. We find that E-tender floated by
Respondent 3 does not depict clear position which said
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Respondent has revealed in pre-bid meeting on 17/9/2010. We
therefore quash the entire process undertaken by Respondent 3
including allotment effected in favour of Respondent 4 on
07.01.2011.
39. Petition is accordingly allowed, however, without any
order as to costs.
JUDGE JUDGE
At this stage, Shri Bhangde, learned counsel for
Respondent No. 4 states that the position prevailing today should
be continued for a period of six weeks so as to enable
Respondent No. 4 to take further appropriate steps in the matter.
Shri Jaiswal, learned counsel for the petitioner is
opposing the request.
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However, in the interest of justice and looking to the
nature of controversy, we direct parties to maintain status quo as
on today for a further period of six weeks. The said order shall
cease to operate automatically thereafter.
JUDGEig JUDGE
*******
*GS.
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