REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2619 of 2002
PRAGATI MAHILA MANDAL, NANDED ....Appellant
Versus
MUNICIPAL COUNCIL, NANDED & ORS. ...Respondents
J U D G M E N T
Deepak Verma, J.
1. How far whip of Public Interest Litigation can
be stretched and used is the moot and foremost question
to be answered in this Appeal, arising out of judgment
and order dated 16/17th July, 2001 passed by Division
Bench of the High Court of Judicature of Bombay, Bench at
Aurangabad in W.P. No. 925 of 1988 titled as Anil
Tryambakarao Kokil (since dead) Vs. Municipal Council,
Nanded and others.
C.A.No.2619/02 …. (contd.)
– 2 –
2. Appellant herein – Pragati Mahila Mandal,
Nanded is before us challenging the said judgment and
order passed by Division Bench, whereby and whereunder
allotment of a piece of plot bearing Survey No. 42 of
Village Assadullabad (Maganpura), admeasuring 75’x 350′
in its favour has been set aside and quashed as being
illegal and void ab initio, with further direction to
Respondent No. 1, Municipal Council, Nanded to take
possession of the said plot together with building
appurtenant thereto, within a period of eight weeks from
the date of impugned judgment.
Thumb nail sketch of the facts of the case is as
under:
3. Appellant is a Charitable Trust duly registered
under the provisions of Bombay Public Trust Act, 1950. On
14.10.1983, it made a request to Respondent No. 1
Municipal Council, Nanded (now Nanded Waghela City
Municipal Corporation) for allotment of a plot, out of
the lands belonging to it, for starting a school to
provide education, especially for girls. Accordingly, in
C.A.No.2619/02 …. (contd.)
– 3 –
the year 1984, the Administrator, who was then holding
the charge of the Municipal Council, vide Resolution
dated 22.10.1984 allotted a plot admeasuring 75′ x 350′
bearing Survey No. 42 to the Appellant on a 60 years’
lease.
4. It further contemplated that the applicable
rental compensation shall be fixed on the basis of the
rate to be worked out by the Assistant Town Planner,
subject to compliance of the provisions of Section 92 of
the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965 (for short ‘The Act’). The
Assistant Town Planner was also required to undertake the
measurements and after fixing boundaries, the said piece
of plot came to be handed over to the Appellant on
25.10.1984, after drawing a possession Panchanama.
However, at that time, the nominal rental compensation
could not be fixed as the State Government was yet to
grant sanction for transfer of the land in favour of the
Appellant, as contemplated under Section 92 of the Act.
5. Respondent No.1, the Municipal Council then in
turn submitted a proposal to the Collector, seeking
C.A.No.2619/02 …. (contd.)
– 4 –
sanction of the State Government regarding allotment of
the aforesaid plot in favour of the Appellant. The
Assistant Town Planner by his communication dated
5.6.1986 informed Respondent No.1 that rental
compensation for the subject plot for giving it on long
lease of 60 years, would work out at Rs. 6,816/- per
annum. A representation was made by the Appellant for
reduction of the rental to a reasonable sum, owing to it
being a Charitable Trust, working mainly for the benefit
of girls and women and it had no source of income to pay
such rental compensation. On reconsideration of the
matter, the rental was fixed at Rs. 11 per annum by the
Divisional Commissioner, vide his order dated 12.11.1986,
wherein sanction was granted under Section 92 of the
Act, for allotment of the subject plot to the Appellant
on a lease for 60 years. Thus, it was an ex-post facto
sanction granted in favour of the Appellant, after the
possession of the plot was already handed over to the
Appellant. It was this allotment of land in favour of
the Appellant and also other allotments made by
Respondent No.1 in favour of other allottees together
C.A.No.2619/02 …. (contd.)
– 5 –
with certain donations made by Respondent No.1, Municipal
Council that were the subject matter of challenge in a
consolidated writ petition filed by Anil Tryambakarao
Kokil (since dead) in the nature of pro bono publico.
6. However, it appears that during pendency of this Writ
Petition, the sole petitioner Anil Tryambakarao Kokil
expired. It is to be noted here that, following his
demise, no application to bring the Legal
Representatives of the deceased Petitioner on record
was preferred, before the hearing of the writ petition
could commence. Thereafter, instead of directing the
petition to have abated or to have made some
alternative arrangements (since his legal
representatives were not brought on record) to ensure
that some other public spirited person to be brought
in as petitioner to prosecute the petition, in place
of deceased Anil Tryambakarao Kokil, the counsel Mr.
S.C. Bora, who probably was already appearing for
deceased Writ Petitioner, was appointed as Amicus
Curiae and was directed to continue to prosecute the
said petition in that capacity of Amicus Curiae. Thus
for all practical purposes, the petition
continued to be
C.A.No.2619/02 …. (contd.)
– 6 –
prosecuted and heard even when admittedly the sole
Petitioner Anil Tryambakarao Kokil had expired long time
back.
7. Thus, apart from examining the correctness,
legality and propriety of the impugned order passed by
Division Bench, it is also necessary to examine the
effect of death of the sole petitioner in a Public
Interest Litigation, viz., whether the same would stand
abated or can be allowed to be continued without bringing
anyone else in place of the deceased petitioner.
8. The Division Bench had, vide its interim order dated
16.1.2001, considered the question of the effect of the
death of the sole petitioner Anil Tryambakrao Kokil on
the Writ Petition, and whether anyone else is required to
be brought in his place. After due deliberation, the
Division Bench then appointed counsel for the petitioner
who was already appearing as Amicus Curiae, with further
direction to allow him to continue the petition. Thus,
there was change of status of the counsel for deceased
petitioner. The said Order dated 16.1.2001 reads as
under:
C.A.No.2619/02 …. (contd.)
– 7 –
“This is a public interest litigation
pertaining to the allotment of plots and shops
in the Nanded City; by the Municipal Council,
Nanded. However, the petitioner has expired
long back. Nobody has come forward to agitate
the cause of this petition further. After
having gone through the petition, this Court
would like to hear the parties to find out
whether there is any substance in the
petition.
Shri S.C. Bora, learned Advocate, who has
made the statement that the petitioner has
expired, has stated that this Vakilpatra
ceases to be effective. However, in our
opinion, it is necessary to appoint Amicus
Curiae so as to assist this Court to
understand the facts of the case and to find
out if any decision is required to be given in
the matter. Shri Bora is, therefore,
appointed as Amicus Curiae in the matter.
Shri M.V. Deshpande, learned Advocate for
the Municipal Council, states that he was
under the impression that since the petitioner
has expired, the matter will not be heard
today. The learned Advocates for other
respondents also state that they require more
time for getting themselves prepared in the
matter.
S.O. to 6.2.2001.”
9. Perusal thereof does not, in fact, reflect or show
as to for what reasons and under what circumstances the
Amicus Curiae was allowed to be relegated to the position
of the petitioner, who had admittedly died long
C.A.No.2619/02 …. (contd.)
– 8 –
time back. It is too well settled that no matter can be
allowed to be prosecuted for and on behalf of a dead
person or against a dead party but it is also no doubt
true that a Public Interest Litigation, which generally
raises an issue of general public importance, should not
be allowed to be withdrawn or dismissed on technical
grounds, if cognizance thereof has already been taken by
the Court. But an important issue would still arise
whether in case of death of a sole petitioner in a Public
Interest Litigation, without bringing anyone else in his
place, if the petition could still be allowed to be
prosecuted or continued?
10. The concept of Public Interest Litigation was
introduced in Indian Legal System to help a person or a
class of persons whose legal and Constitutional Rights
are violated and where such person or class of persons
as the case may be, owing to their disadvantaged position
such as poverty, exploitation, socially and economic
backwardness and other forms of disablement etc. is
unable to approach the courts. Under the aforesaid
circumstances, a person or the society could espouse a
C.A.No.2619/02 …. (contd.)
– 9 –
common grievance by filing a petition under Article 226
of the Constitution of India in the High Court or under
Article 32 of the Constitution of India in the Supreme
Court.
11. According to Black’s Law Dictionary – “Public
Interest Litigation means a legal action initiated in a
court of law for the enforcement of public interest or
general interest in which the public or class of the
community have pecuniary interest or some interest by
which their legal rights or liabilities are affected.”
12. It is also well settled that laws of procedure are
meant to regulate effectively, assist and aid the object
of doing substantial and real justice and not to
foreclose an adjudication on merits of substantial rights
of citizens under personal, property or other laws.
13. Though, the courts entertaining PIL enjoy a degree
of flexibility unknown to the trial of traditional court
litigation but the procedure to be adopted by it should
be known to the judicial tenets and adhere to established
principles of a judicial procedure employed in every
judicial proceedings which constitute the basic
C.A.No.2619/02 …. (contd.)
– 10 –
infrastructure along whose channels flows the power of
the court in the process of adjudication. It would thus
clearly mean that the courts have to, in the normal
course of business, follow traditional procedural law.
However, minor deviations are permissible here and there
in order to do complete justice between the parties.
14. Even though, we made fervent search to find out a
suitable answer to the questions posed hereinabove, from
earlier precedents of this Court but it appears to be a
unique case. Therefore, in our wisdom, we thought it
appropriate to provide answer to the said question.
15. Before proceeding to decide the said issue, it is
necessary to take into consideration some of the
provisions of the Code of Civil Procedure, 1908
(hereinafter shall be referred to as Code for short).
Section 141 of the Code, which creates a bar of
applicability of the provisions of the Code to petitions
filed under Article 226 of the Constitution reads as
under:
“141. Miscellaneous proceedings- The
procedure provided in this Code in regard
to suit shall be followed, as far as it
C.A.No.2619/02 …. (contd.)
– 11 –
can be made applicable, in all proceedings
in any Court of civil jurisdiction.
[Explanation – In this section,
the expression “proceedings” includes
proceedings under Order IX, but does not
include any proceeding under article 226
of the Constitution.]”
Explanation which has been added in the Code
with effect from 1.2.1977 makes it clear that the
provisions of the Code do not specifically apply to the
proceedings under Article 226 of the Constitution of
India.
The necessary corollary thereof shall be that
it shall be open to the Courts to apply the procedure
provided in the Code to any proceeding in any Court of
civil jurisdiction except to the proceedings under
Article 226 of the Constitution of India.
16. Order XXII, Rule 4A of the Code prescribes the
procedure where there is no legal representative, reads
thus:
“Order XXII Rule 4A. Procedure where there is
no legal representative-
If, in any suit, it shall appear to the Court
that any party who has died during the
pendency of the suit has no legal
representative, the Court may, on the
application of any party to the suit,
C.A.No.2619/02 …. (contd.)
– 12 –
proceed in the absence of a person
representing the estate of the deceased
person, or may by order appoint the
Administrator-General, or an officer of the
Court or such other person as it thinks fit
to represent the estate of the deceased
person for the purpose of the suit; and any
judgment or order subsequently given or made
in the suit shall bind the estate of the
deceased person to the same extent as he
would have been bound if a personal
representative of the deceased person has
been a party to the suit.
2) Before making an order under this Rule, the
Court –
a) may require notice of the application
for the order to be given to such (if any)
of the persons having an interest in the
estate of the deceased person as it thinks
fit; and
b) shall ascertain that the person proposed
to be appointed to represent the estate of
the deceased person is willing to be so
appointed and has no interest adverse to
that of the deceased person.”
17. Thus, even if it is held that Order 22 of the Code,
which relates to the subject of ‘abatement of suits’, is
not applicable to writ proceedings, it does not mean that
death of the petitioner can be totally ignored. Looking
to the nature of the writ proceedings, as initiated by
the deceased petitioner, the question is whether the
right to pursue the remedy would have
C.A.No.2619/02 …. (contd.)
– 13 –
survived despite the absence of any person on record
representing the deceased.
18. Under these circumstances, what would have been the
best option open to the court, is to be seen. In our
considered opinion, the following options could have been
exercised by the Court.
19. As soon as the information is received that a sole
petitioner to the writ petition in the nature of a PIL
filed pro bono publico, is dead, the Court can issue a
notice through newspapers or electronic media inviting
public spirited bodies or persons to file applications to
take up the position of the petitioner. If such an
application is filed, the court can examine the
antecedents of the person so applying and find out if
allowing him to be impleaded as petitioner could meet the
ends of justice.
20. If the matter is already pending and the court is of
the opinion that the relief sought could be granted in
the PIL, without having to take recourse to adversarial-
style of proceedings, then it can proceed further as if
it had taken suo moto cognizance of the matter.
C.A.No.2619/02 …. (contd.)
– 14 –
21. The court can still examine and explore the
possibility, if any of the non-contesting Respondents of
the Writ Petition could be transposed as petitioner as
ultimately the relief would be granted to the said party
only. The court in a suitable case can ask any lawyer or
any other individual or an organisation to assist the
court in place of the person who had earlier filed the
petition.
22. However, the fact situation of this case would show
that after the death of the original petitioner Anil
Tryambakarao Kokil, Respondent No.1 Municipal Council
could have stepped into the shoes of the petitioner,
albeit on a limited scale. This is because, while the
Writ Petitioner had challenged the initial allotment of
land in favour of the Appellant charitable organization
on the ground that it was made in contravention of the
purpose envisaged in the Master Plan, Respondent No.1
Nanded Municipal Council had emphasized on the subsequent
unauthorized change in user of land by the Appellant. If
we were to cast our net wider, Sitaram Maganlal Shukla,
(who was Respondent No. 12 in the Writ Petition), could
C.A.No.2619/02 …. (contd.)
– 15 –
also have been transposed as a Petitioner because he too,
had a similar grievance against the Respondent Municipal
Council as that of the original deceased petitioner. It
has been brought to our notice that the said Sitaram
Maganlal Shukla also had passed away during the pendency
of the Writ Proceedings – however, in his own Second
Appeal No. 30 of 2000, he had been represented through
his Legal Representative. So, the impleadment of that
Legal Representative as the Petitioner in this PIL would
have been sufficient for continuance of proceedings.
Since the petition before the High Court was in the
nature of a PIL, it is immaterial that the respective
causes of action urged by the Writ Petitioner and
Respondent No. 12 have their foundations in different
sets of legal argument, as the main relief sought is the
same, i.e. quashing of the allotment order in favour of
the Appellant.
23. At any rate, in cases like the above, where the main
Writ Petitioner has passed away and any other person (not
being a representative of the deceased) is brought on
record, either from the opposite side or from a third
C.A.No.2619/02 …. (contd.)
– 16 –
party, the court may, after having received an
application requesting for permission for the same, grant
opportunity to the newly added petitioners to amend the
petition, if they so desire.
24. In these circumstances, Court could have taken a suo
moto cognizance of the averments made in the petition,
despite death of original petitioner, by asigning reasons
and could have continued to bring it to a logical end, so
as to meet the ends of justice.
25. In this view of the matter, reasoning of the Court
in this regard cannot be legally upheld nor we can put a
seal of approval to such a procedure as the same would
lead to an anomalous situation not akin to law.
26. Now, coming to the merits of the matter, few facts
material for deciding have already been mentioned
hereinabove but we have to decide whether the Division
Bench in the impugned judgment was justified in quashing
the allotment made in favour of the Appellant or not.
27. It is pertinent to point out here that the
aforementioned Sitaram Maganlal Shukla had filed a civil
suit for cancellation of the lease granted in favour of
C.A.No.2619/02 …. (contd.)
– 17 –
the Appellant. Ultimately, matter was carried up to this
Court. The said suit was dismissed. An SLP (c)
No.16517/2007 against the judgment and order dated
15.6.2007 passed in Second Appeal No. 30 of 2000 of the
High Court of Bombay, Bench at Aurangabad was filed
before this Court. However, on 21.9.2007 the said SLP
was dismissed as withdrawn. Thus, in any case, the
question of legality of the allotment of the subject
piece of land in favour of the Appellant, had attained
finality at the High Court stage, even though at the
instance of some other person.
28. In the aforesaid suit filed by Sitaram Maganlal
Shukla, who was the plaintiff therein, the Municipal
Council was arrayed as defendant No.2 in which it had
filed its written statement giving reasons for allotment
of piece of plot in favour of the Appellant. It was
categorically mentioned in the same that Divisional
Commissioner had accorded sanction to the said transfer
of plot by its letter dated 12.11.1986. Accordingly, the
Appellant had started the construction of its building to
be used for the hostel for girls and working women.
C.A.No.2619/02 …. (contd.)
– 18 –
Similarly, all other Respondents had fully supported the
allotment of plot in favour of the Appellant.
29. In the Writ Petition No. 925 of 1988, Respondent No.
1 has submitted that the reservations of the land in
survey No. 42 and Survey No. 29 for the establishment of
a primary school near the open space in the revised
layout was not under the master plan. It was development
plan submitted by the owner of these two lands under
Section 44 of the Maharashtra Regional and Town Planning
Act of 1966 and those two reservations are as per the
tentative development plan formulated by the Municipal
Council as a planning authority. This plan was
sanctioned before 1972. The owner of the land was not in
a position to finance the construction of a primary
school. In this background, Appellant – Trust came
forward with the offer to establish primary school as per
the revised development plan with the consent of the
owner.
30. It is pertinent to point out the affidavit of
Collector, Nanded in the Writ Petition. He has
categorically averred that the said plot was reserved to
C.A.No.2619/02 …. (contd.)
– 19 –
be allotted on the lease basis for 60 years and the main
object of the Appellant, Pragati Mahila Mandal, Nanded
is to conduct educational activities for girls.
Assistant Director of Town Planning had also issued no
objection certificate for the allotment of plot to the
above institution. He has also referred to Rule 21 of the
Maharashtra Municipalities (Transfer of Immovable
property) Rules, 1983 under which the Municipal Council
is bestowed with the powers of sanction of government
grant of the land on the basis of lease for promotion of
educational, medical, religious, social and charitable
purposes to the registered institutions on payment of
such concessional premium as the council may, in its
discretion, determine.
31. The Chief Officer of Nanded Municipal Council,
Nanded had also submitted his affidavit in reply to the
Writ Petition and assigned various valid and cogent
reasons for allotment of plot to the Appellant.
32. In the reply affidavit of Kiran Kurundkar dated
30.6.2001, the then Commissioner of the Nanded – Waghela
Municipal Corporation, it has categorically been stated
C.A.No.2619/02 …. (contd.)
– 20 –
that on 3.1.1978, the first development plan of Nanded
city was sanctioned by the Government in which the said
plot was shown and included in the Development plan for
public and semi public purposes and was not shown or
included as land reserved exclusively for primary school.
Thus, only after land user was changed, admittedly the
Appellant is using it for the said purposes ie. Public
and semi public use, which fact has not been denied by
Respondents.
33. However, as has been mentioned earlier, for want of
money and financial crunch, the school for which the
land was initially acquired by the Appellant could not be
started. So, it constructed a hostel for working women
and girls taking higher education. There is one
auditorium also which is being used as family counselling
centre.
34.It has neither been disputed before us nor anything
could be brought on record to show that Appellant is
running the said hostel for any gains or profit. In
fact, it is run on no profit-no loss basis. This is
manifest from the details of the list of students
C.A.No.2619/02 …. (contd.)
– 21 –
who have been pursuing various courses for higher
education since the year 1991 to the year 2000. It
largely discloses the names of the students, the courses
for which they had opted and the colleges of enrolment.
It also shows that initially room rent was only Rs. 150/-
which was enhanced to Rs. 400/- in the year 2000. Most
of the inmates were students and only handful of them
were working women. We have been given to understand
that as of today, it is charging only Rs. 750/- per
month from each of the students occupying the room. The
accounts of the Appellant are duly audited and reflect
absolute transparency. There is no reason to doubt the
correctness thereof.
35. It is a matter of common knowledge that girls and
women face lot of problems and difficulties in finding a
suitable and safe accommodation when they go out of
their own cities, to their respective schools or
colleges or work-place. If a hostel has been constructed
for girls and working women, then it would definitely be
for public or semi public purpose and it cannot be said
that there has been any deviation from the purposes for
C.A.No.2619/02 …. (contd.)
– 22 –
which the said plot was earmarked and allotted to the
Appellant. It is commendable that the Appellant has taken
the initiative of introducing progressive elements
(through the establishment of counselling centres), in
its efforts to alleviate some primary concerns of most
working women. It would be nothing short of a cruel
twist of justice, if they are prevented from continuing
to do so by a PIL, which is motivated by ulterior
motives.
36. In this regard, it is further necessary to mention
that the provisions of Memorandum of Association of the
Appellant clearly state that one of the objectives of the
Appellant is to provide Hostel facilities for girls and
working women. This further fortifies the stand of the
Appellant that it is public or at least semi-public
purpose.
37. Thus, looking to the matter from all angles, we are
of the considered opinion that impugned judgment and
order passed by the Division Bench cannot be sustained in
law. It deserves to be set aside and quashed. We
C.A.No.2619/02 …. (contd.)
– 23 –
accordingly do so. The appeal is accordingly hereby
allowed.
Parties are directed to bear their own
respective costs.
………………….J.
[DALVEER BHANDARI]
………………….
J.
[DEEPAK VERMA]
February 18, 2011
New Delhi.