Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Dr. Surendra Ramlal Tiwari vs State Of Maharashtra on 12 October, 2011
Bench: B. P. Dharmadhikari, A.P. Bhangale
                                    1
           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 before

entertaining a PIL. (5) The court should be fully
satisfied that substantial public interest is involved
before entertaining the petition. (6) The court should

ensure 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
redressal of genuine public harm or public injury. The

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court should also ensure that there is no personal
gain, private motive or oblique motive behind filing

the 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 similar

novel 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 society

because 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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