{"id":246343,"date":"2011-10-12T00:00:00","date_gmt":"2011-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-surendra-ramlal-tiwari-vs-state-of-maharashtra-on-12-october-2011"},"modified":"2017-11-12T13:05:45","modified_gmt":"2017-11-12T07:35:45","slug":"dr-surendra-ramlal-tiwari-vs-state-of-maharashtra-on-12-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-surendra-ramlal-tiwari-vs-state-of-maharashtra-on-12-october-2011","title":{"rendered":"Dr. Surendra Ramlal Tiwari vs State Of Maharashtra on 12 October, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dr. Surendra Ramlal Tiwari vs State Of Maharashtra on 12 October, 2011<\/div>\n
Bench: B. P. Dharmadhikari, A.P. Bhangale<\/div>\n
                                    1\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH\n\n\n\n\n                                                                   \n       PUBLIC INTEREST LITIGATION NO.  74  OF  2010\n\n\n\n\n                                           \n     1. Dr. Surendra Ramlal Tiwari,\n        aged about 44 years, \n\n\n\n\n                                          \n        occupation - Lecturer in \n        Physical Education in Jyoti\n        College of Physical Education,\n        Hingna Road, Nagpur, r\/o\n\n\n\n\n                                \n        Trimurty Nagar, Nagpur.\n                   \n     2. Trimurty Nagar (N.I.T.) Ground\n        Bachav Kruti Samiti through \n        its Secretary, Purushottam \n                  \n        Parmore, aged about 49 years,\n        occupation - Private, r\/o L.I.G.\n        Colony, Trimurty Nagar, Nagpur.        ...   PETITIONERS\n      \n\n\n                     Versus\n   \n\n\n\n     1. State of Maharashtra,\n        through its Secretary, \n        Urban Land Development\n\n\n\n\n\n        Department, Mantralaya,\n        Mumbai 400 32.\n\n     2. Nagpur Improvement Trust,\n        through its Chairman,\n\n\n\n\n\n        Civil Lines, Nagpur.\n\n     3. Nagpur Municipal Corporation,\n        through its Commissioner,\n        Civil Lines, Nagpur.\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 17:50:18 :::\n                                             2\n     4. Bhartiya Vidya Bhavan,\n        Munshi Sadan, Kulpati K.M. Munshi\n\n\n\n\n                                                                             \n        Marg, Mumbay 400 007, through\n        constituted Attorney Shri T.G.L.\n\n\n\n\n                                                    \n        Iyer, Director, Bhartiya Vidhya\n        Bhavan, Nagpur Kendra, Lala\n        Lajpat Rai Marg, Near Museum,\n        Civil Lines, Nagpur.               ...   RESPONDENTS\n\n\n\n\n                                                   \n     Shri A.S. Jaiswal, Advocate for the petitioners.\n\n\n\n\n                                       \n     Shri D.M. Kale, Advocate for respondent No. 1.\n     Shri S.K. Mishra, Advocate for respondent No. 2.\n                        \n     Shri C.S. Kaptan, Advocate for respondent No. 3.\n     Shri   M.G.   Bhangde,   Sr.   Advocate   with   Shri   V.V.   Bhangde, \n     Advocate for respondent No. 4.\n                       \n                       .....\n\n                           \n                       CORAM :   B.P. DHARMADHIKARI &\n                                 A. P. BHANGALE, JJ.\n<\/pre>\n
     DATE OF RESERVING JUDGMENT       : SEPTEMBER 16, 2011.
\n     DATE OF PRONOUNCING JUDGMENT : OCTOBER 12, 2011<\/p>\n
     JUDGMENT :  (Per B.P. DHARMADHIKARI, J.)<\/p>\n
                  By   this   petition,   the   challenge   is   to   action   of <\/p>\n
     Respondent No. 2 in allotting land reserved for Primary School, <\/p>\n
     Secondary   School   and   Playground   to   Respondent   No.   4   –\n<\/p>\n
     Educational Institution\/ Trust.  The petition has been accepted as <\/p>\n
     Public   Interest   Litigation   as   per   orders   of   the   learned   Senior <\/p>\n
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\n                                               3<\/span>
\n     Judge on 02.12.2010 and on 06.12.2010 notices were issued to <\/p>\n
     the other side.\n<\/p>\n
     2.            The   facts   briefly   stated   are   :   The   reservation   is   on <\/p>\n
     Khasra No. 12 of   Mouza – Bhamti included in Bhamti Parsodi <\/p>\n
     Street   Scheme   of   Nagpur   Improvement   Trust   (respondent   2 <\/p>\n
     herein)   and   as   per   Development   Plan   sanctioned   in   the   year <\/p>\n
     2001, it has reservation No. SW 164 for Primary School on area <\/p>\n
     0.176   H.     Reservation   No.   SW   165   is   on   Area   0.352   H.   for <\/p>\n
     secondary School and reservation No. MSW 16 for playground is <\/p>\n
     1.1136 H.   The remaining reservation is for 9 mtrs. x 12 mtrs.\n<\/p>\n
     wide road and residential purpose.\n<\/p>\n
     3.            The   prayers   in   the   petition   are   to   quash   an <\/p>\n
     advertisement   dated   29.03.2010   with   its   corrigendum   issued <\/p>\n
     later   and   the   subsequent   tender   notice   similarly   published   in <\/p>\n
     September   2010.     The   petitioners   before   this   Court   are   the <\/p>\n
     residents   of   the   area.     Petitioner   No.   1   is   a   Lecturer   while <\/p>\n
     petitioner No. 2 is an association of local residents formed for <\/p>\n
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\n                                             4<\/span>
\n     saving the said playground.\n<\/p>\n
     4.           One   of   the   prayers   in   the   petition   also   sought <\/p>\n
     declaration   that   modification   of   reservations   suggested   by <\/p>\n
     Respondent No. 3 – Nagpur Municipal Corporation vide notice <\/p>\n
     dated 26.10.2010 under Section 37 of Maharashtra Recognition <\/p>\n
     of   Trade   Practices   Act,   1966,   (hereinafter   referred   to   as   1966 <\/p>\n
     Act) by seeking deletion of reservation for Primary School and <\/p>\n
     Secondary School and to add the land thereof to playground is <\/p>\n
     legal and valid.  It is not in dispute that during the pendency of <\/p>\n
     this petition, Nagpur Municipal Corporation has considered said <\/p>\n
     proposal and later on decided to withdraw it..   With the result, <\/p>\n
     original reservation as given in Development Plan stands as it is.\n<\/p>\n
     The position declared by Respondent No. 3 on record and vide <\/p>\n
     affidavit   dated   10.08.2011   and   declaration   that   proposal   for <\/p>\n
     minor modification of Development Plan initiated under Section <\/p>\n
     37 of 1966 Act is dropped, has not been questioned in any way <\/p>\n
     though thereafter CAO No. 1182 of 2011 has been moved by the <\/p>\n
     petitioners on 24.08.2011 seeking leave to add para 16G to the <\/p>\n
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\n                                             5<\/span>
\n     petition.     That   amendment   was   allowed   by   this   Court   on <\/p>\n
     14.09.2011.     Thus,   the   declaration   that   proposal   to   drop <\/p>\n
     reservations for Secondary School and Primary School is valid.\n<\/p>\n
     has   not   been   pressed   thereafter   by   the   petitioners.     Similarly, <\/p>\n
     though there is a subsequent tender issued in September 2010, <\/p>\n
     that   second   tender   has   also   not   been   questioned   before   this <\/p>\n
     Court   specifically.     However,   it   needs   to   be   pointed   out   that <\/p>\n
     resolution   by   Respondent   No.   2   –   Nagpur   Improvement   Trust <\/p>\n
     passed on 07.01.2011 accepting the offer received in pursuance <\/p>\n
     of   that   tender   has   been   challenged   by   amending   the   prayer <\/p>\n
     clause and by adding grounds on 25.03.2011 and thereafter on <\/p>\n
     14.09.2011.\n<\/p>\n
     5.           We have heard Shri Jaiswal, learned counsel for the <\/p>\n
     petitioner,     Shri  Kale,   learned  AGP  for  respondent   No.   1,   Shri <\/p>\n
     Mishra,   learned   counsel   for   respondent   No.   2,   Shri   Kaptan, <\/p>\n
     learned counsel for respondent No. 3 Municipal Corporation and <\/p>\n
     Shri   M.G.   Bhangde,   learned   Senior   Advocate   with   Shri   V.V.\n<\/p>\n
     Bhangde, learned counsel for respondent No. 4.\n<\/p>\n
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\n                                             6<\/span><\/p>\n
     6.           After   pointing   out   the   facts   in   brief,   Shri   Jaiswal, <\/p>\n
     learned   counsel   has   urged   that   there   are   20   Schools   in   the <\/p>\n
     vicinity   and   hence   there   is   no   need   of   any   new   Primary   and <\/p>\n
     Secondary School in the area.    He has contended that area is <\/p>\n
     congested one and children are having no facility of playground <\/p>\n
     and   similarly   elderly   persons   have   no   open   space   for   their <\/p>\n
     Morning or Evening walk and exercise.  He, therefore, contends <\/p>\n
     that   the   allotment   of   entire   land   with   even   reservation   for <\/p>\n
     playground to Respondent No. 4 is contrary to provisions of Act <\/p>\n
     of 1966.  He points out that in first tender notice inviting offers, <\/p>\n
     the   area   declared   for   School   was   3850   square   meters   and   an <\/p>\n
     obligation was cast upon successful bidder to develop area ad-\n<\/p>\n
     measuring   13666   sq.   mtrs.   as   playground   and   garden.     The <\/p>\n
     aspirant   was   expected   to   have   minimum   annual   turn   over <\/p>\n
     exceeding   Rs.   10   crores   in   any   three   financial   years   and   net <\/p>\n
     worth   of   Rs.   5   crores.     This   could   not   materialize   and   then <\/p>\n
     similar notice was again published in September 2010 and in this <\/p>\n
     revised tender, the minimum annual turn over exceeding Rs. 10 <\/p>\n
     crores was maintained as it is and net worth of Rs. 10 crores as <\/p>\n
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\n                                               7<\/span>
\n     on 31.03.2010 was asked for.   The condition that bidder must <\/p>\n
     have previous experience of running and managing or must own <\/p>\n
     at least five Schools or Colleges over past 5 years was also put.\n<\/p>\n
     He argues that as there was no response to March 2010 tender, <\/p>\n
     the conditions needed to be relaxed but here in later invitation, <\/p>\n
     conditions were made more stringent.\n<\/p>\n
     7.<\/p>\n
                   In this background, he has invited attention to clause <\/p>\n
     9   of   the   tender   notice   to   urge   that   entire   playground   as   also <\/p>\n
     garden is to be used by the School and thus it no longer remains <\/p>\n
     available for the children residing in the locality or for general <\/p>\n
     public throughout the day.   He contends that the conditions in <\/p>\n
     the   tender   have   also   been   modified   later   on   to   suit   the <\/p>\n
     Respondent No. 4 and allotment to it on 07.01.2011 is malafide.\n<\/p>\n
     Attention is invited to admitted fact that the father of Chairman <\/p>\n
     of Respondent No. 2 – Trust is on Local Executive Committee (for <\/p>\n
     Nagpur) of Respondent No. 4.   It is urged that because of this, <\/p>\n
     the   condition   later   published   on   06.09.2010   show   distinct <\/p>\n
     changes to see that it can be allotted only to Respondent No. 4.\n<\/p>\n
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\n                                              8<\/span><\/p>\n
     The learned counsel has invited attention to provisions of Section <\/p>\n
     16(1)(d)  of   Nagpur   Improvement   Trust   Act,   1936,   to   contend <\/p>\n
     that if really Chairman of Respondent No. 2 had abstained from <\/p>\n
     meeting in which resolution in favour of Respondent No. 4 came <\/p>\n
     to   be   passed   by   Respondent   No.   3,   it   was   obligatory   for   the <\/p>\n
     Trustees to elect somebody as Chairman to preside over that part <\/p>\n
     of meeting.  He contends that declaration of interest has come at <\/p>\n
     the end of business transacted and the Chairman of Respondent <\/p>\n
     No. 2 has refused to participate only in decision on the subject <\/p>\n
     and   there   is   nothing   on   record   to   show   that   he   did   not <\/p>\n
     participate   in   deliberations.     It   is   contended   that   because   of <\/p>\n
     influence Respondent No. 4 and Chairman of Respondent No. 2, <\/p>\n
     the condition to allot the reserved land to CBSE School or then <\/p>\n
     stringent   conditions   like   experience   and   minimum   number   of <\/p>\n
     Schools etc. came to be added.  The resolution dated 07.01.2011 <\/p>\n
     passed by Respondent No. 2 is, therefore, challenged as invalid <\/p>\n
     and unsustainable, as also illegal.\n<\/p>\n
     8.            Our attention is invited to provisions of Section 22(c) <\/p>\n
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\n                                               9<\/span>
\n     of Act of 1966.   The learned counsel states that reservation in <\/p>\n
     Development   Plan   for   playground   is   a   separate   entry   and <\/p>\n
     reservation   for   garden   or   park   is   an   independent   reservation.\n<\/p>\n
     When   the   land   in   the   lay   out   is   reserved   for   playground,   it <\/p>\n
     cannot be permitted to be used as garden or park.  The support <\/p>\n
     is being taken from Division Bench judgment of this Court in the <\/p>\n
     case of  Sarvajanik Shri Ganeshotsav Mandal, Mumbai & Anr. vs.  <\/p>\n
     Municipal   Corporation   of   Greater   Mumbai   &   Ors.,<\/a>   reported   at <\/p>\n
     2006 (4) Mh. L.J. 207, particularly paras 13, 14 & 20 for this <\/p>\n
     purpose.  It is reiterated that because of congested position and <\/p>\n
     availability   of   large   number   of   schools   in   the   locality,   the <\/p>\n
     petitioners need a playground.   That need is rightly recognized <\/p>\n
     in   Development   Plan   and   hence   the   playground   cannot   be <\/p>\n
     allowed to be put to any other use and cannot be allowed as a <\/p>\n
     playground to Respondent No. 4 – School.\n<\/p>\n
     9.            Shri   Mishra,   learned   counsel   for   Respondent   No.   2 <\/p>\n
     states   that   the   petition   as   filed   is   not   a   bonafide   or   genuine <\/p>\n
     attempt to redress public grievance.  He points out that petition <\/p>\n
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\n                                            10<\/span>
\n     has   been   filed   on   01.12.2010   i.e.   long   after   second   invitation <\/p>\n
     dated 06.09.2010, and still it does not contain any challenge or <\/p>\n
     reference to that tender notice.  The effort in the petition was to <\/p>\n
     have entire ground for playground without any reservation for <\/p>\n
     school and this was after Nagpur Municipal Corporation passed a <\/p>\n
     resolution   to  propose   modification   under  Section   37   of  Act   of <\/p>\n
     1966   for   this   purpose.   Respondent   3   Nagpur   Municipal <\/p>\n
     Corporation   has   dropped   that   proposal   and   as   petition   seeks <\/p>\n
     something which is contrary to Development Plan, it  is not in <\/p>\n
     public interest.  He further contends that proposed reservation in <\/p>\n
     Development Plan exists since the year 2000 and it is nowhere <\/p>\n
     the   case   of   the   petitioner   that   reserved   land   is   the   only <\/p>\n
     playground available in the locality.  He contends that because of <\/p>\n
     Section 31(6) of Act of 1966, Development Plan is binding on <\/p>\n
     Nagpur   Improvement   Trust.     As   reservation   is   for   School,   the <\/p>\n
     condition that such School has to be recognized by CBSE is good <\/p>\n
     and   valid.     He   points   out   that   no   objection   was   raised   by <\/p>\n
     petitioners   or   any   residents   before   Development   Plan   was <\/p>\n
     finalized.   In Writ Petition, there is only challenge to tender as <\/p>\n
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\n                                           11<\/span>
\n     published   on   29.03.2010   and   though   it   has   been   amended <\/p>\n
     subsequently  twice,   there   is no  express challenge   to tender  as <\/p>\n
     published on 06.09.2010.\n<\/p>\n
     10.          In response to  earlier tender dated 29.03.2010, the <\/p>\n
     only offer of Rs.1.08 Crores was received whereas an amount of <\/p>\n
     Rs.2.5 Crores was needed for playground development.   Hence, <\/p>\n
     that tender notice was cancelled and fresh tender was published <\/p>\n
     on 06.09.2010.  In fresh tender, Rs.2.5 Crores are stipulated for <\/p>\n
     the School plots.   He contends that the project is Public Private <\/p>\n
     Participation Project (PPP) and there is no question of any loss to <\/p>\n
     public   revenue.     Though   two   tenders   were   received,   only   one <\/p>\n
     continued its   offer  on  20.10.2010  when  tenders  were   opened.\n<\/p>\n
     Offer   of   Respondent   No.   4   was   found   above   upset   price   and <\/p>\n
     Respondent   No.   4   had   offered   Rs.   5.31   Crores.     These <\/p>\n
     developments are not being questioned in writ petition.   It was <\/p>\n
     amended in March 2011 to incorporate challenge to resolution <\/p>\n
     dated   07.01.2011   and   thereafter   in   September   2011.     In   this <\/p>\n
     background, it is contended that Section 16(1)(d) of NIT Act is <\/p>\n
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\n                                             12<\/span>
\n     not   attracted   in   present   facts.     There   were   total   78   different <\/p>\n
     subjects before trustees on 07.01.2011 and only one valid offer <\/p>\n
     was   available   for   consideration.       There   is   no   prejudice   to <\/p>\n
     anybody   because   of   that   grant.     He   has   invited   attention   to <\/p>\n
     photograph placed on record to point out how four play-courts <\/p>\n
     are   to   be   developed   in   playground   within   18   months.\n<\/p>\n
     Respondent No. 4 has agreed to pay Rs. two lakh per year for <\/p>\n
     maintenance   of   playground.     It   is   further   stated   that   the <\/p>\n
     Chairman of Respondent No. 2 (Shri Sanjay Mukherjee) against <\/p>\n
     whom allegations of bias are made, was transferred in June 2011 <\/p>\n
     and he has not been joined in person.   Attention is invited to <\/p>\n
     reply   of   Respondent   No.   2   to   amendment   effected   by   the <\/p>\n
     petitioners to point out how the playground is to be used.   He <\/p>\n
     further points out that tender also permitted consortium to be <\/p>\n
     formed and hence it cannot be alleged that conditions in it were <\/p>\n
     tailor-made.\n<\/p>\n
     11.           Shri   Bhangde,   learned   Senior   Advocate   for <\/p>\n
     respondent No. 4 has assailed the bonafides of the petitioners.\n<\/p>\n
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\n                                              13<\/span><\/p>\n
     According to him, petition is not filed in public interest but the <\/p>\n
     petitioners   are   actually   puppets   in   the   hands   of   other   School <\/p>\n
     managements in the area.  He points out that cost of each tender <\/p>\n
     notice   was   Rs.10,000\/-   and   here   though   the   petitioners   have <\/p>\n
     annexed both these tenders, they have not disclosed the source <\/p>\n
     from which they got its copy.   He contends that the petitioners <\/p>\n
     have not purchased the same.   Similarly, attention is invited to <\/p>\n
     communication\/   letters   dated   25.11.2008,   07.05.2010, <\/p>\n
     07.04.2010,   resolution   dated   12.04.201,   copy   of   note   sheet <\/p>\n
     produced   as   Annexure   P-10   and   also   copy   of   impugned <\/p>\n
     resolution dated 07.01.2011 to contend that the same could not <\/p>\n
     have become available to the petitioners in normal course.  The <\/p>\n
     impugned letter of intent dated 18.01.2011 is also pointed out to <\/p>\n
     be of similar nature.   Attention is invited to reply filed to CAW <\/p>\n
     No.   1182   of   2011   to   contend   that   appropriate   stand   in   this <\/p>\n
     respect is already taken by Respondent No. 4 on record and the <\/p>\n
     petitioners   have   not   chosen   to   explain   the   position.     The <\/p>\n
     judgment of the Hon’ble Apex Court in the case of  Dr. B. Singh  <\/p>\n
     vs.   Union   of   India   &   Ors.,<\/a>   reported   at   (2004)   3   SCC   363,   is <\/p>\n
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\n                                           14<\/span>
\n     pressed   into   service   to   urge   that   in   such   circumstances,   no <\/p>\n
     cognizance   of   the   controversy   can   be   taken   as   PIL   and   the <\/p>\n
     petition needs to be dismissed with heavy costs.\n<\/p>\n
     12.          The recent judgment delivered by the Hon’ble Apex <\/p>\n
     Court in the case of  State of M.P. vs. Narmada Bachao Andolan, <\/p>\n
     reported   at   (2011)   7   SCC   639,   is   pressed   into   service   to <\/p>\n
     emphasize the need of correct pleadings in such challenge.  It is <\/p>\n
     contended that there is no challenge in entire matter to use of <\/p>\n
     reserved land for the playground as garden.  The use of portion <\/p>\n
     of land reserved for playground as garden is not fatal and DP <\/p>\n
     reservation   cannot   be   said   to   be   violative   thereby   as   user <\/p>\n
     substantially   remains   the   same.     Attention   is   invited   to   the <\/p>\n
     judgment   of   the   Hon’ble   Apex   Court   in   the   case   of  Forward <\/p>\n
     Construction Co. vs. Prabhat Mandal (Regd.), Andheri,<\/a> reported at <\/p>\n
     (1986) 1 SCC 100, to substantiate this contention.\n<\/p>\n
     13.          The judgment of this Court in the case of Sarvajanik  <\/p>\n
     Shri   Ganeshotsav   Mandal,   Mumbai   &   Anr.   vs.   Municipal  <\/p>\n
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\n                                             15<\/span>
\n     Corporation of Greater Mumbai & Ors., (supra) relied upon by the <\/p>\n
     petitioners is sought to be distinguished by pointing out that  the <\/p>\n
     judgment of the Hon’ble Apex Court relied upon by Respondent <\/p>\n
     No. 4 was not required to be looked into in it.  He further states <\/p>\n
     that   there   plot   reserved   for   playground   was   sought   to   be <\/p>\n
     developed into swimming pool and sports complex and it was <\/p>\n
     found contrary to Development Plan.   Here, earlier user as per <\/p>\n
     development plan substantially continues.\n<\/p>\n
     14.           He further points out that there is no challenge even <\/p>\n
     to second tender published on 06.09.2010 and there is no plea <\/p>\n
     that   the  conditions  therein  are   tailor-made   to  suit   Respondent <\/p>\n
     No. 4.   The subsequent amendments effected by the petitioners <\/p>\n
     show that they had an opportunity to challenge later tender also <\/p>\n
     but the same has not been availed.  The condition to permit only <\/p>\n
     CBSE School on reserved land is also not available.  There is no <\/p>\n
     argument   and   challenge   pointing   out   any   damage   to   public <\/p>\n
     interest.     In   this   connection,   support   is   being   taken   from   the <\/p>\n
     judgment   in   the   case   of  Jagdish   Mandal   vs.   State   of   Orissa,<\/a> <\/p>\n
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\n                                             16<\/span>
\n     reported at (2007) 14 SCC 517.   By pointing out para 21, it is <\/p>\n
     urged that as a contract is entered into between Respondent No. <\/p>\n
     4 and Respondent No. 2, scope of judicial review under Article <\/p>\n
     226   of   Constitution  of  India    is  very  limited  and  challenge   as <\/p>\n
     raised does not call for any such interference.\n<\/p>\n
     15.           The judgment of the Hon’ble Apex Court in the case <\/p>\n
     of Directorate of Education vs. Educomp Datamatics Ltd.,<\/a> reported <\/p>\n
     at (2004) 4 SCC 19, is also relied upon to show how terms and <\/p>\n
     conditions of tender need to be appreciated and the limited role <\/p>\n
     available to Courts of law in such matter.   The  learned counsel <\/p>\n
     states   that   the   entire   challenge   on   this   count   is   without   any <\/p>\n
     merit.\n<\/p>\n
     16.           Inviting   attention   to   proceedings   of   meeting   of <\/p>\n
     Respondent   No.   2   dated   07.01.2011,   it   is   contended   that   the <\/p>\n
     relationship sought to be established between the Chairman of <\/p>\n
     Respondent No. 2 and Respondent No. 4 Society is too remote.\n<\/p>\n
     Again reply filed to CAW No. 1182 of 2011 is pressed into service <\/p>\n
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\n                                              17<\/span>
\n     for said purpose.   Respondent No. 4 is old society registered at <\/p>\n
     Bombay and subsequently under Bombay Public Trust Act.   The <\/p>\n
     resolution was passed on 15.10.2010 at Bombay to participate in <\/p>\n
     tender process of Respondent No. 2 and letter of intent was also <\/p>\n
     forwarded to Respondent No. 4 at Bombay.   Respondent No. 4 <\/p>\n
     has come into picture only after publication of tender notice and <\/p>\n
     the decision to modify tender conditions. Similarly, decision to <\/p>\n
     accept offer of Respondent No. 4 and to issue it a letter of intent <\/p>\n
     is taken by Board of Trustees of Respondent No. 2 and not by its <\/p>\n
     Chairman.     These   trustees   are   members   of   Respondent   2   and <\/p>\n
     there   is   no   allegation   of   malafides  against   any  of  them.     It   is <\/p>\n
     urged that there were total six trustees.   In this situation, it is <\/p>\n
     contended that only for one subject for which there was only one <\/p>\n
     offer, complete & valid in all respect; it was legally not necessary <\/p>\n
     for the Chairman of Respondent No. 2 to recuse himself.  In any <\/p>\n
     case, it was not necessary for other trustees to appoint any other <\/p>\n
     person as the Chairman while considering the said subject.  The <\/p>\n
     judgment of the Hon’ble Apex Court in the case of Javid Rasool  <\/p>\n
     Bhat vs. State of Jammu & Kashimir,<\/a>  reported at (1984) 2 SCC <\/p>\n
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\n                                            18<\/span>
\n     641 is pointed out to show how bias in such matter needs to be <\/p>\n
     looked   at.     It   is   contended   that   here,   the   Chairman   has   not <\/p>\n
     participated in deliberations and was not party to decision.  His <\/p>\n
     mere physical presence, therefore, was not sufficient  and cannot <\/p>\n
     be construed as a fact sufficient to influence the decision making <\/p>\n
     process.  The Full Bench judgment of Madhya Pradesh high-court <\/p>\n
     in the case of  State through Local Self Government Department,  <\/p>\n
     Bhopal vs. Beni Pd. Rathore, reported at AIR 1996 M.P. 101, is <\/p>\n
     pressed   into   service   for   evaluating   presence   of   Chairman   in <\/p>\n
     meeting on 07.01.2011.   The learned counsel states that in this <\/p>\n
     situation,   merely   because   another   person   is   not   elected   as <\/p>\n
     Chairman under Section 16(1)(d) of NIT Act, that by itself is not <\/p>\n
     sufficient to vitiate the resolution dated 07.01.2011.\n<\/p>\n
     17.          Lastly, attention is invited to the fact that in the said <\/p>\n
     area, there is no playground since last about 10 years and land <\/p>\n
     though reserved, is having only shrubs and wild grass, it cannot <\/p>\n
     be, therefore, used for any purpose.  If the petitioners were\/are <\/p>\n
     really interested and acting in public interest, they must explain <\/p>\n
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\n                                             19<\/span>
\n     why   they   have   not   approached   any   of   the   authorities   or   this <\/p>\n
     Court earlier in point of time for getting said land cleared and for <\/p>\n
     its use as per development plan.\n<\/p>\n
     18.           Shri Jaiswal, learned counsel, in reply, has contended <\/p>\n
     that   the   residents   of   Trimurti   Nagar   are   entitled   to   have <\/p>\n
     playground and that playground cannot be used for School.  The <\/p>\n
     judgment   of   the   Hon’ble   Apex   Court   in   the   case   of  A.   Abdul  <\/p>\n
     Farook vs. Muncipal Council, Perambalur,<\/a> reported at (2009) 15 <\/p>\n
     SCC   351,   is   relied   upon   to   urge   that   in   such   matters,   Court <\/p>\n
     cannot take too technical approach.  It is reiterated that in later <\/p>\n
     tender, instead of relaxing the terms and conditions, same have <\/p>\n
     been made more harsh only to favour Respondent No. 4.    None <\/p>\n
     of the documents produced on record by petitioners are pointed <\/p>\n
     out as incorrect or false, & hence Respondent No. 4 should not <\/p>\n
     hide behind technicalities.  It is also argued that the Chairman of <\/p>\n
     Respondent No. 4 duly communicated his interest in awarding <\/p>\n
     tender to Respondent No. 4 on 07.01.2011 and his   presence, <\/p>\n
     therefore, has influenced the entire proceedings.   He, therefore, <\/p>\n
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\n                                            20<\/span>
\n     sought for an order in favour of the residents of Trimurti Nagar.\n<\/p>\n
     19.           Recent   judgment   on   which   Shri   Jaiswal,   learned <\/p>\n
     counsel has placed reliance is in the case of A. Abdul Farook .vrs.\n<\/p>\n
     Municipal Council, Perambalur  (supra).   Paragraph no.33 there <\/p>\n
     contains   observations   of   Hon’ble   Apex   Court   that   in   a   public <\/p>\n
     interest   of a nature as before it, it is not necessary for the Court <\/p>\n
     to abide by strict rules of pleadings and even if it is found that <\/p>\n
     petitioners are busy bodies, Courts while discharging them can <\/p>\n
     proceed   to   deal   with   the   public   interest   litigation   suo   motu.\n<\/p>\n
     Earlier judgments have been also noted to show that the public <\/p>\n
     interest   litigation   is   inquisitorial   in   nature,   while   private <\/p>\n
     litigation is adversarial.  In public interest litigation Court is not <\/p>\n
     supposed   to   strictly   follow   ordinary   procedure.   Hon’ble   Apex <\/p>\n
     Court finds  permanent arches allowed to erected by municipal <\/p>\n
     council in political interest and not in public interest.\n<\/p>\n
     20.           Shri   Bhangde,   learned   Senior   Counsel   has   relied <\/p>\n
     upon the later judgment of larger bench of Hon’ble Apex Court in <\/p>\n
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\n                                              21<\/span>
\n     the case of State of M.P. .vrs. Narmada Bachao Andolan (supra), <\/p>\n
     to   urge   that   the   law   on   pleadings   is   also   applicable   to   public <\/p>\n
     interest litigation.   Perusal of paragraph nos. 8 to 11 of the said <\/p>\n
     judgment show the purpose of pleadings and issues.  The Hon’ble <\/p>\n
     Apex Court has observed that if any factual or legal issue, despite <\/p>\n
     having merit has not been raised by the parties, the Court should <\/p>\n
     not decide the same, as the opposite counsel does not have a fair <\/p>\n
     opportunity   to   answer   the   line   of   reasoning   adopted   in   that <\/p>\n
     regard   and  such   a   judgment   may   be   violative   of   principles   of <\/p>\n
     natural justice.  In paragraph no.12, the Hon’ble Apex Court has <\/p>\n
     observed   that   every   technicality   in   procedural   law   is   not <\/p>\n
     available as a defence in matters of grave public importance.  In <\/p>\n
     paragraph   no.13,   it   is   observed   that   there   must   be   sufficient <\/p>\n
     material in petition on the basis of which the Court may proceed.\n<\/p>\n
     Public interest litigation must have factual  foundation to show <\/p>\n
     basis   on   which   litigant   is   claiming   relief   and  information <\/p>\n
     furnished by him should not   be  vague  and indefinite.    Proper <\/p>\n
     pleadings are necessary to meet the requirements of principles of <\/p>\n
     natural justice.  Even in public interest litigation, litigant cannot <\/p>\n
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\n                                             22<\/span>
\n     approach   the   Court   to   have   a   fishing   and   roving   enquiry.     In <\/p>\n
     public   interest   litigation   before   the   Hon’ble   Apex   Court, <\/p>\n
     impression was given that some drastic steps would be taken by <\/p>\n
     the   authorities   causing   great   hardship   to   large   number   of <\/p>\n
     persons.     The petition however, did not disclose the factum of <\/p>\n
     number of  persons  who  had  already  vacated  their  houses  and <\/p>\n
     handed over possession.  Contention was urgent measures were <\/p>\n
     required to be taken by the Courts and Hon’ble Apex Court has <\/p>\n
     noted that there was no material to adjudicate upon the issue <\/p>\n
     involved   in   the   public   interest   litigation.     High   Court   in   this <\/p>\n
     background   had   directed   the   Authority   to   submit   report   on <\/p>\n
     rehabilitation work and authority vide its report then pointed out <\/p>\n
     a huge amount of several thousand crores already invested and <\/p>\n
     disbursed.     Majority   of   the   families   had   already   shifted   and <\/p>\n
     amount of Rs. 9924 Crores was already disbursed amongst the <\/p>\n
     claimants   and   sum   of   Rs.   589  Crores   was   only   left   to   be <\/p>\n
     disbursed.     The Hon’ble Apex Court  has noted that there were <\/p>\n
     no pleadings before the High Court on the  basis of which a Writ <\/p>\n
     Petition   could   have   been   entertained   and   decided   and   it <\/p>\n
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\n                                             23<\/span>
\n     deserved rejection at threshold.   It is also noted by the Hon’ble <\/p>\n
     Apex Court that even in public interest litigation, in absence of <\/p>\n
     such factual matrix, similar course can be followed by the Courts.\n<\/p>\n
     This     judgment   therefore   shows   total  absence   of  pleadings  on <\/p>\n
     facts vital for consideration & completion of more that 95% of <\/p>\n
     rehabilitation has weighed with Hon. Apex Court. Such is not the <\/p>\n
     position here.\n<\/p>\n
     21.           In  Dr.   B.   Singh   .vrs.   Union   of   India   and   others <\/p>\n
     (supra),   the   Hon’ble   Apex   Court   has   considered   the   issue   of <\/p>\n
     bonafides   of   petitioner   after   observing   that   time   has   come   to <\/p>\n
     weed   out   the   petitions   which   though   titled   as   public   interest <\/p>\n
     litigation   are   in   essence   something   else.     The   Courts   at   times <\/p>\n
     entertain   such   private   disputes   which   results   in   wasting   of <\/p>\n
     valuable judicial time.  It has been noted that in service matters, <\/p>\n
     public interest litigation are not entertained.   The Hon’ble Apex <\/p>\n
     Court has noted that such public interest litigation could have <\/p>\n
     been thrown out by the High Court.  Tendency growing slowly to <\/p>\n
     permit   setting   in   motion   criminal   law   jurisdiction   often <\/p>\n
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\n                                              24<\/span>
\n     unjustifiably   just   for   getting   publicity   and   giving   adverse <\/p>\n
     publicity to the opponent, is also noted.  In the process it is also <\/p>\n
     observed that official documents are being annexed without even <\/p>\n
     indicating as  to how  the petitioner could possess them.     The <\/p>\n
     story of accidentally finding such documents was not believed.\n<\/p>\n
     Where such petitioner does not have even a remote link with the <\/p>\n
     issue involved, the Hon’ble Apex Court has stated that it becomes <\/p>\n
     imperative for Court to lift the veil and uncover the real purpose <\/p>\n
     of   the   petition   and   the   real   purpose   of   the   petition   and   real <\/p>\n
     person behind it.  The issue before the Hon’ble Apex Court was <\/p>\n
     about a petition purported to have been filed   questioning the <\/p>\n
     propriety   of   a   person   being   considered   for   appointment   as   a <\/p>\n
     Judge.\n<\/p>\n
     22.           None of the respondents have contended that present <\/p>\n
     issue cannot form a subject matter of scrutiny in Public Interest <\/p>\n
     Litigation.  The details of reservation with respective earmarked <\/p>\n
     area   are   already   mentioned   by   us   above.     It   is   the   stand   of <\/p>\n
     Nagpur   Improvement   Trust   that   it   is   not   required   to   obtain <\/p>\n
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\n                                           25<\/span>
\n     development permission from Nagpur Municipal Corporation in <\/p>\n
     respect     of   developments   undertaken   by   it   as   a   development <\/p>\n
     agency   and   State   Government   through   its   notification   dated <\/p>\n
     27.02.2002   has   clarified   that   it   can   continue   functioning   as <\/p>\n
     Planning Authority for such developments  undertaken by it. We <\/p>\n
     find that notification  issued continues Respondent 2  for limited <\/p>\n
     purpose in areas transferred to Municipal Corporation.   Present <\/p>\n
     area   i.e.   Bhamti   Parsodi   area   is   one   such   area.  Though <\/p>\n
     petitioners have raised this issue in para 4 of their petition, no <\/p>\n
     arguments   about   absence   of   authority   in   Respondent   2   are <\/p>\n
     advanced by them. The Respondents like State of Maharashtra, <\/p>\n
     Nagpur   Corporation   have   also   not   argued     any   thing   in   this <\/p>\n
     respect.   However,   in     affidavit   dated   11.08.2011   sworn   by <\/p>\n
     Ravindra   Rambhau   Kumbhare,   Additional   Municipal <\/p>\n
     Commissioner,   states     that   “The   Nagpur   Improvement   Trust, <\/p>\n
     which  was  planning   and   development   authority   in   respect   of <\/p>\n
     these reserved lands prior to 27th February, 2002, had submitted <\/p>\n
     objection to the proposed development plan”. But none of the <\/p>\n
     learned Counsel have thought it proper to invite our attention to <\/p>\n
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\n                                              26<\/span>
\n     it.     We   fail   to   understand   whether   use   of   past   tense   in   this <\/p>\n
     statement has any significance.   The effort made by citizens to <\/p>\n
     secure entire land from Khasra No. 12 as playground by deleting <\/p>\n
     reservation of Primary School and Secondary School and for that <\/p>\n
     purpose to seek minor modification in final Development Plan as <\/p>\n
     per   Section   37   of   Act   of   1966,   could   not   succeed.     But   then <\/p>\n
     details of those 20 schools in para 11 of the petition are not in <\/p>\n
     dispute.     The   petitioners  as   also  respondents  have   not   invited <\/p>\n
     attention of Court to proceedings of pre-bid meeting conducted <\/p>\n
     by the Chairman of Respondent No. 2 on 17.09.2010.   Two of <\/p>\n
     the   institutes   interested   in   submitting   tender   are   reported   to <\/p>\n
     have participated in it.   However, minutes do not record their <\/p>\n
     names.   First clarification given by Respondent No. 2 is about <\/p>\n
     area of land under School project.   It is stated to be revised to <\/p>\n
     4125.50 sq. mtrs. or 1.02 Acres.   This seems to be because of <\/p>\n
     requirement of CBSE that plot of School to be recognized by it <\/p>\n
     must have area above one Acre.  The provision in clause 5.8(2) <\/p>\n
     of   the   tender   document   has   been   amended   accordingly   and <\/p>\n
     reserved price has also been modified to Rs.2.75 Crores.   The <\/p>\n
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\n                                               27<\/span>
\n     timings for use of playground and garden for School are revised from <\/p>\n
     Morning 8.30 to 4.30 in the evening.  For general public time given is <\/p>\n
     5.00   AM   to   8.00   AM   and   5.00   PM   to   9.00   PM.     T.C.   (Terms   and <\/p>\n
     Conditions) and charges for use of playground and garden for School <\/p>\n
     are stated to be Rs.2 lakh per year with 5% increase per year over <\/p>\n
     previous   year   and   Respondent   No.   2   has   agreed   for   arranging <\/p>\n
     maintenance   of   garden.     Ownership   of   playground   and   garden   is <\/p>\n
     stated   to   be   with   Nagpur   Improvement   Trust.     No   ground   floor <\/p>\n
     construction   is   permitted   except   for   staircase   and   lift.     The <\/p>\n
     requirement of 4.50 meter from Ground level to the beam soffit of stilt <\/p>\n
     parking   is also clarified.   The question about grant of relaxation for <\/p>\n
     marginal space for better planning of School is answered by stating <\/p>\n
     that relaxation  shall  be allowed as per Development Control  Rules.\n<\/p>\n
     The   detailed   specification   and   estimate   for   the   development   of <\/p>\n
     playground   and   garden   is   stated   to   be   enclosed   along   with   some <\/p>\n
     communication   as   Annexures   Y   &   Z.     One   of   the   queries   required <\/p>\n
     Respondent No. 2 to specify timing of restaurant for general public.\n<\/p>\n
     This timing is specified to be from 5.00 PM onwards.\n<\/p>\n
     23.            The perusal of tender document vide clause 5.5.2(xi) <\/p>\n
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\n                                            28<\/span>
\n     shows that 10 seats in the School every year are to be filled in <\/p>\n
     exclusively on recommendations of Chairman of Respondent No. <\/p>\n
     2.  The tender document states playground and garden as Project  <\/p>\n
     A and Primary and Secondary School as Project B.  The perusal of <\/p>\n
     clause 5.5.2 (xii) shows that if bidder fails to comply (Garden <\/p>\n
     project), it would be considered as major breach of terms and <\/p>\n
     conditions.     Thus,   failure   to   comply   with   playground   part <\/p>\n
     perhaps is not a major breach.\n<\/p>\n
     24.          This   perusal   of   minutes   of   pre-bid   meeting   with <\/p>\n
     tender  document,   therefore,  reveals a  further  reduction   in  the <\/p>\n
     area of playground.   The area for school is increased and some <\/p>\n
     area of playground is also allowed to be developed as a garden.\n<\/p>\n
     In Section 22(c) of Act of 1966, playground is an independent <\/p>\n
     reservation implying thereby that it cannot be construed to mean <\/p>\n
     reservation for park or garden.   In other words, it may require <\/p>\n
     minor modification under Section 37 of the Act of 1966.   The <\/p>\n
     garden as also playground is to be used by School during day <\/p>\n
     time   and   it   becomes   available   to   public   only   after   5.00   PM.\n<\/p>\n
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\n                                             29<\/span><\/p>\n
     Thus,   children   in   the   locality   who   are   beneficiaries   of   that <\/p>\n
     Development   Plan   reservation   are   supposed   to   play   between <\/p>\n
     5.00 AM to 8.00 AM and 5.00 PM to 9.00 PM.  Insofar as garden <\/p>\n
     is   concerned,   very   same   time   limits   apply.     Not   only  this,   but <\/p>\n
     indirectly a commercial user is also permitted and a restaurant is <\/p>\n
     allowed  to  come   up  either  in   playground   or   in   garden.     That <\/p>\n
     facility perhaps is to be used by School and person running it can <\/p>\n
     cater to general public after 5.00 PM.  Such person will obviously <\/p>\n
     be   a   contractor   as   Respondent   4   or   School   will   not   run   a <\/p>\n
     restaurant for general public.     Such commercial user and such <\/p>\n
     exploitation of property or garden has not been communicated <\/p>\n
     to   general   public   as   there   is   no   such   mention   in   documents <\/p>\n
     inviting offer.   Clause 5.3 of tender describes the entire area to <\/p>\n
     be purely residential area. Not only this, but availability of area <\/p>\n
     as per CBSE requirement is also not disclosed to general public.\n<\/p>\n
     It   cannot   be   presumed   that   other   institutions   having   CBSE <\/p>\n
     affiliation and running Schools in the Country would not have <\/p>\n
     been interested in opening a School in the city, had they known <\/p>\n
     that land as required by CBSE with such facilities is available for <\/p>\n
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\n                                           30<\/span>
\n     them.   It is equally important to note that this meeting dated <\/p>\n
     17.09.2010   has   been   chaired   by   the   Chairman   of   Nagpur <\/p>\n
     Improvement Trust against whom there are allegations of bias <\/p>\n
     and   partiality.  As   per   tender   document,  cost   of   project   A <\/p>\n
     (playground & garden) to be borne by Respondent 4 is Rs. 2.50 <\/p>\n
     Crores minimum & it is as per NIT’s 2008-09 CSR. But then offer <\/p>\n
     on that basis & for that sum is being accepted  in 2010–2011 ie.\n<\/p>\n
     almost 2 years later. No pains are taken to point out CSR rates <\/p>\n
     for   2010-2011.   It   also   needs   mention   that   last   date   of   E-\n<\/p>\n
     submission   of   tender   was   05.10.2010   &   opening   has   been   on <\/p>\n
     05.10.2010.   But   then   body   of   Respondent   4   at   Mumbai   did <\/p>\n
     resolve  to participate in tender  on 15.10.2010.\n<\/p>\n
     25.          Shri   Jaiswal,   learned   counsel   has   relied   upon   the <\/p>\n
     Division Bench judgment of this Court in the case of Sarvajanik  <\/p>\n
     Shri Ganeshotsav Mandal, Mumbai vs. Municipal Corporation of  <\/p>\n
     Greater Mumbai,<\/a> (supra)  In this judgment, open space reserved <\/p>\n
     for   Development   Plan   or   playground   was   being   put   to   use   as <\/p>\n
     park.     The   Hon’ble   Division   Bench   has   noted   that   ordinary <\/p>\n
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\n                                              31<\/span>
\n     meaning of playground is a outer area for children to play on or <\/p>\n
     on   piece   of   land   set   up   for   open   air   recreation,   specially   for <\/p>\n
     children or then one connected with School.   The judgment of <\/p>\n
     learned Single Judge of this Court in the case of C.R. Dalvi and  <\/p>\n
     Ors.   vs.   Municipal   Corporation   of   Greater   Bombay   and   Ors.,<\/a> <\/p>\n
     reported at 1986 Mh. L.J. 373, holding that such land reserved <\/p>\n
     in Development Plan cannot be utilized for any purpose other <\/p>\n
     than play of  children and similar recreational activities is also <\/p>\n
     noted by Division Bench.   In para 20, the Division Bench then <\/p>\n
     notices that playground, swimming pool, gymnasium and park <\/p>\n
     even though covered under the head (Recreational grounds and <\/p>\n
     facilities) is a separate and distinct  “use” category and cannot be <\/p>\n
     put to interchangeable use wholly or partly.  The Division Bench, <\/p>\n
     therefore, found that swimming pool can never be covered by <\/p>\n
     expression   playground   or   vice   versa.   The   Division   Bench <\/p>\n
     concluded   that   land   reserved   for   playground   cannot   be <\/p>\n
     permitted for the purpose of swimming pool and sports complex.\n<\/p>\n
     26.           Shri   Bhangde,   learned   counsel   has   relied   upon   the <\/p>\n
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\n                                            32<\/span>
\n     judgment   in   the   case   of  Forward   Construction   Company   vs.  <\/p>\n
     Prabhat Mandal (Regd.) Andheri,<\/a> (supra), where the reservation <\/p>\n
     was for bus depot and the land was sought to be put to use by <\/p>\n
     compounding bus depot with commercial activity of a shopping <\/p>\n
     complex.  The plot was in commercial road and was acquired by <\/p>\n
     Municipal Corporation for bus depot and ultimately was used for <\/p>\n
     bus  depot  with  commercial purpose.   The Hon’ble Apex Court <\/p>\n
     held that it did not constitute “change”.  It is noted that general <\/p>\n
     meaning   of   word   change   is   “to   make   or   become   different,   to <\/p>\n
     transform   or   convert”.     If   the   user   was   to   be   completely   or <\/p>\n
     substantially   changed,   only   then   the   prior   modification   of <\/p>\n
     Development   Plan   was   necessary.     In   facts   before   the   Hon’ble <\/p>\n
     Apex Court, user of plot was not changed.  It was being used as a <\/p>\n
     bus   depot   with   commercial   use   to   augment   income   of <\/p>\n
     corporation for public purpose.   It is, therefore, obvious that a <\/p>\n
     plot in commercial area acquired for bus depot was being used <\/p>\n
     not only for bus depot but also for commercial purpose.   Both <\/p>\n
     user were legal and also possible.\n<\/p>\n
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\n                                            33<\/span><\/p>\n
     27.            The   judgments   on   which   respective   counsel   have <\/p>\n
     placed reliance show that where original reservation is not in any <\/p>\n
     way increased and an activity incidental thereto is taken up, the <\/p>\n
     Hon’ble   Apex   Court   has   found   that   such   activity   is   not   in <\/p>\n
     violation   of   Development   Plan   reservation.     Here,   Respondent <\/p>\n
     No.   2   has   limited   powers   of   continuing   with   development <\/p>\n
     already  undertaken and in  case,  area  of  respective  reservation <\/p>\n
     i.e.   under   DP   reservation   is   to   be   changed,   it   must   obtain <\/p>\n
     previous   approval   of   Respondent   No.   3   –   Nagpur   Municipal <\/p>\n
     Corporation.  Similarly, its changing purposes by putting part of <\/p>\n
     land   to   use   as   garden   or   then   for   commercial   purpose   as <\/p>\n
     restaurant,   the   object   behind   providing   entire   land   for <\/p>\n
     playground is definitely frustrated.   For use of   certain facilities <\/p>\n
     in playground, the children\/ their parents are supposed to pay.\n<\/p>\n
     Charges for use of tennis court , throw ball, basket ball, skating <\/p>\n
     rink,   table   tennis,   craft   etc.   for   equipments   &   maintenance   of <\/p>\n
     these Courts are to be worked out by Respondent No. 2.   Only <\/p>\n
     playground to be handed over and available to children free of <\/p>\n
     costs.   It   does   not   speak   anything   about     restaurant.  In   facts <\/p>\n
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\n                                             34<\/span>
\n     before   this   Court,   the   area   of   playground   is   being   reduced,   a <\/p>\n
     garden though not envisaged in DP is introduced &  is proposed <\/p>\n
     in part of playground.   Similarly, commercial user by allowing <\/p>\n
     restaurant open to public is also permitted.  The area for school <\/p>\n
     is also increased.  It is, therefore, obvious that all these changes <\/p>\n
     cannot   be   viewed   as   residential   and   in   this   situation,   test   of <\/p>\n
     substantial user cannot be applied.\n<\/p>\n
     28.           This   brings   us   to   question   of   the   presence   of   the <\/p>\n
     Chairman   of   Respondent   No.   2   during   the   meeting.     The <\/p>\n
     proceedings no doubt record that the interest which Chairman of <\/p>\n
     Respondent No. 2 had in the subject was disclosed by him and <\/p>\n
     thereafter   on   07.01.2011   the   decision   has   been   taken.     The <\/p>\n
     minutes record the history and in the meeting of trustees nobody <\/p>\n
     appears to have either moved that subject or seconded it.  None <\/p>\n
     of the parties had raised any contention in this respect and hence <\/p>\n
     we are also not basing our adjudication upon this aspect.  But at <\/p>\n
     the end of minutes, the fact of disclosure of interest is recorded.\n<\/p>\n
     The   Chairman   had   disclosed   that   his   father   is   a   Committee <\/p>\n
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\n                                           35<\/span>
\n     Member   of   Respondent   No.   4   for   Nagpur   area.     Hence,   the <\/p>\n
     Chairman   would   not   participate   in   taking   decision   and   the <\/p>\n
     Trustees, therefore, had to take appropriate view on merits.  It is <\/p>\n
     further recorded that this fact was noted by trustees and then <\/p>\n
     approval was given to allotment of 4125.50 sq. mtrs. of land on <\/p>\n
     premium of Rs.281 lakh to Respondent No. 4.   This also shows <\/p>\n
     that there was no discussion at all.\n<\/p>\n
     29.          The  perusal of  judgment  in  the case  of  Javid Rsool  <\/p>\n
     Bhat vs. State of Jammu and Kashmir,<\/a> (supra) reveals that there <\/p>\n
     contention   was   that   the   selection   of   candidates   was   vitiated <\/p>\n
     because   of   presence   of   father   of   one   of   the   candidates   on <\/p>\n
     Selection Committee.  The Principal of Medical College, Srinagar, <\/p>\n
     whose   daughter   was   a   candidate   for   admission   to   Medical <\/p>\n
     College   had   informed   Selection   Committee   at   the   very   outset <\/p>\n
     about it and had also stated that he would not be concerned with <\/p>\n
     written test and would not be present at the time of interview of <\/p>\n
     his   daughter.     The   other   members   of   Selection   Committee <\/p>\n
     accepted and did not think it necessary to advise Government to <\/p>\n
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\n                                           36<\/span>
\n     appoint   a   substitute   member   of   Selection   Committee.     The <\/p>\n
     Hon’ble   Apex   Court   has   noted   that   the   procedure   adopted   by <\/p>\n
     Selection   Committee   and   members   concerned   was   not   in <\/p>\n
     accordance with well known and accepted procedure.  It is also <\/p>\n
     noted that in the absence of malafides, it would not be right to <\/p>\n
     set   right   the   selection   merely   because   one   of   the   candidates <\/p>\n
     happened to be related to Member of Selection Committee.   In <\/p>\n
     para 14, the Hon’ble Apex Court has noted facts in case of A.K.\n<\/p>\n
     Kraipak vs. Union of India, reported at   AIR 1970   SC 150, and <\/p>\n
     then   concluded   that   in   facts   before   it   when   other   candidates <\/p>\n
     were   interviewed,   Principal   was   not   aware   of   marks   obtained <\/p>\n
     either by his daughter or by any other candidate and there was <\/p>\n
     no occasion to suspect his bonafides even remotely.   There was <\/p>\n
     not even a suspicion of bias and hence there was no violation of <\/p>\n
     principles of natural justice.\n<\/p>\n
     30.          In  State of M.P. Through Local Self Govt.  Department,  <\/p>\n
     Bhopal   vs.   Beni   Pd.   Rathore,   (supra),   Full   Bench   of   Madhya <\/p>\n
     Pradesh has considered similar aspect but in case of meeting of <\/p>\n
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\n                                            37<\/span>
\n     no   confidence   and   then   noted   that   requirement   of   a   law   to <\/p>\n
     preside  over meeting if President is present, contemplated not <\/p>\n
     mere physical presence but presence coupled with readiness to <\/p>\n
     preside over the meeting and in the absence of President or in <\/p>\n
     the event of his declining, it was for Vice President to preside.\n<\/p>\n
     31.          In   facts   which   we   have   noticed,   the   decision   as   to <\/p>\n
     area under reservation was taken at the time of pre-bid meeting.\n<\/p>\n
     But   then   it   was   not   made   known   to   general   public.     The <\/p>\n
     premium   amount   was   proportionately   raised   but   it   was   not <\/p>\n
     communicated to public.   That meeting was conducted  by the <\/p>\n
     Chairman   himself.     The   material   changes   and   diversions   from <\/p>\n
     development plan are already noted by us above and absence of <\/p>\n
     any  details on the issue is also noted by us.  We, therefore, find <\/p>\n
     that in such situation, it was obligatory for Respondent No. 2 as <\/p>\n
     also Respondent No. 4 to bring on record the circumstances in <\/p>\n
     which the changes were brought and accepted.  Respondent No. 2 has <\/p>\n
     remained satisfied by throwing burden on the shoulders of the <\/p>\n
     petitioners and by contending that as necessary details are not <\/p>\n
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\n                                            38<\/span>
\n     pleaded,   this   Court   cannot   take   cognizance   of   the   matter   as <\/p>\n
     Public Interest Litigation.  There bonafides have been questioned <\/p>\n
     by   pointing   out   the   production   of   documents   which   normally <\/p>\n
     could not have reached them.  In these facts, we do not find that <\/p>\n
     production of documents by itself show any oblique motive.  The <\/p>\n
     issue brought by them before Court is in public interest and they <\/p>\n
     have   succeeded   in   pointing   out   how   a   development   plan <\/p>\n
     reservation is being violated.\n<\/p>\n
     32.          The judgment of the Hon’ble Apex Court in the case <\/p>\n
     of  Dr. B. Singh vs. Union of India,<\/a> (supra) considers the filing of <\/p>\n
     PIL   in   service   matters.     We   find   observations   therein   not <\/p>\n
     applicable directly in present facts.  In any case, we are not in a <\/p>\n
     position to find out any oblique motive with the petitioners who <\/p>\n
     are residents of the area.   The existence of about 20 Schools in <\/p>\n
     the   vicinity   and,   therefore,   no   need   of   any   other   School   is <\/p>\n
     already   on   record.     Therefore,   only   Planning   authority   had <\/p>\n
     proposed minor modifications under Section 37 of Act of 1966 <\/p>\n
     by   deleting   reservation   for   School   by   adding   said   land   to <\/p>\n
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\n                                            39<\/span>
\n     playground.     However,   later   on   the   said   authority   viz., <\/p>\n
     Respondent No. 3 has gone back on its proposal.\n<\/p>\n
     33.          State   of  Madhya   Pradesh   vs.   Narmada   Bachao  <\/p>\n
     Andolan, (supra) shows the application of law of pleadings.   In <\/p>\n
     present matter, necessary material is already on record and the <\/p>\n
     petitioners   have   sufficiently   pleaded   their   case   of   violation   of <\/p>\n
     development plan reservation.   The first question which arises <\/p>\n
     for consideration is whether in such circumstances when several <\/p>\n
     Schools are available in the vicinity, the State Government or any <\/p>\n
     other authority which has to permit the School to be open, is <\/p>\n
     duty   bound   to   grant   permission   to   Respondent   No.   4   merely <\/p>\n
     because of Development Plan reservation.  The other question is <\/p>\n
     whether Planning Authority in the light of provisions of Section <\/p>\n
     31(6) of Act of 1966 can alter the area of land under reservation <\/p>\n
     and  whether  Respondent  No.   2   –  who  has  been  given   limited <\/p>\n
     role,   can   do   so   without   recourse   to   provisions   of   Section   37 <\/p>\n
     thereof.   It  is also not understood how a public authority like <\/p>\n
     Respondent   No.   2   can   seek   reservation   of   10   seats   from <\/p>\n
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\n                                               40<\/span>
\n     Respondent No. 4 in such matters.  All these issues definitely are <\/p>\n
     issues in larger public interest.\n<\/p>\n
     34.           Shri   Bhangde,   learned   Senior   Advocate   has <\/p>\n
     contended   that   courts   have   limited   jurisdiction   while <\/p>\n
     appreciating the terms and conditions of the tender.  The perusal <\/p>\n
     of judgment in the case of  Directorate of Education vs. Educomp  <\/p>\n
     Datamatics Ltd.,<\/a> (supra), particularly paras 11 & 12 show that <\/p>\n
     terms   and   conditions   are   prescribed   by   competent   authority <\/p>\n
     bearing in mind the nature of contract and such authorities are <\/p>\n
     best   judges   to  prescribe   the   same.     It   is  not   for   the   courts  to <\/p>\n
     comment whether better conditions and terms could have been <\/p>\n
     prescribed.  In such matters, such authorities need to be given a <\/p>\n
     free hand.  The State Government can choose its own method to <\/p>\n
     arrive at a decision and fix its own terms of invitation to tender <\/p>\n
     and that is not open to judicial scrutiny.   However, the Hon’ble <\/p>\n
     Apex   Court   has   also   found   that   Court   can   examine   decision <\/p>\n
     making process.\n<\/p>\n
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\n                                            41<\/span><\/p>\n
     35.          In A. Abdul Farook vs. Municipal Council, Perambalur,<\/a> <\/p>\n
     (supra), the Hon’ble Apex Court has held that in  public interest <\/p>\n
     litigation, it is not necessary for courts to abide by strict rules of <\/p>\n
     pleadings   and   such   litigation   is   inquisitorial   in   nature.     The <\/p>\n
     question before the Hon’ble Apex Court was regarding erection <\/p>\n
     of arches and no objection certificate issued by Municipality to <\/p>\n
     construct   the   same   on   the   condition   that   there   would   be   no <\/p>\n
     hindrance to traffic.  The Secretary of District Consumer Council <\/p>\n
     had   filed   writ   petition   for   issuance   of   writ   of   mandamus <\/p>\n
     forbearing the respondents from putting up such arches.   There <\/p>\n
     was also challenge to a Ward Member, who sought certiorari for <\/p>\n
     quashing   no   objection   certificate.     The   learned   Single   Judge <\/p>\n
     dismissed that writ petition.  In turn, appeal was preferred.  The <\/p>\n
     Division Bench of High Court dismissed that appeal as also writ <\/p>\n
     petition and then the Secretary of District Consumer counsel and <\/p>\n
     Ward Member approached the Hon’ble Apex Court.   The Apex <\/p>\n
     Court allowed the appeal.  It is noted by the Hon’ble Apex Court <\/p>\n
     in para 37 that though the authorities may grant permission to <\/p>\n
     construct such permanent structure, there must be public interest <\/p>\n
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\n                                              42<\/span>
\n     in   carrying   it   out   not   in   private   interest   or   interest   of   any <\/p>\n
     political party.  The judgment, therefore, shows that whenever a <\/p>\n
     public interest is found, the Court can interfere in public interest <\/p>\n
     litigation without bothering for technical objections as attempted <\/p>\n
     to be raised by the respondents.\n<\/p>\n
     36.           We find it necessary to mention   State of Uttarnchal  <\/p>\n
     vs.   Balwant   Singh   Chaufal,<\/a>   reported   at   AIR   2010   S.C.   2050 <\/p>\n
     =(2010) 3 SCC   402, where Hon’ble Apex Court has laid down <\/p>\n
     certain norms and important out of it are :–\n<\/p>\n
                     “(3)  The   courts   should   prima   facie   verify   the  <\/p>\n
            credentials of the petitioner before entertaining a P.I.L.\n<\/p><\/blockquote>\n
            (4) The court should be prima facie satisfied regarding
\n            the  correctness   of   the  contents   of   the  petition  before <\/p>\n
            entertaining   a   PIL.   (5)   The   court   should   be   fully
\n            satisfied   that   substantial   public   interest   is   involved
\n            before entertaining the petition.  (6) The court should  <\/p>\n
            ensure that the petition which involves larger  public
\n            interest,   gravity   and   urgency   must   be   given   priority
\n            over other petitions.(7) The courts before entertaining
\n            the   PIL   should   ensure   that   the   PIL   is   aimed   at
\n            redressal of genuine public harm or public injury. The  <\/p>\n
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\n                                            43<\/span>
\n           court   should   also   ensure   that   there   is   no   personal
\n           gain,   private   motive   or   oblique   motive   behind   filing  <\/p>\n
           the public interest litigation. (8) The court should also <\/p>\n
           ensure   that   the   petitions   filed   by   busybodies   for
\n           extraneous and ulterior motives must be discouraged
\n           by   imposing   exemplary   costs   or   by   adopting   similar  <\/p>\n
           novel   methods   to   curb   frivolous   petitions   and   the
\n           petitions filed for extraneous considerations. ”\n<\/p><\/blockquote>\n
                   While tracing history of PIL in country, Hon’ble Apex <\/p>\n
     Court noted that   the public interest litigation is an extremely <\/p>\n
     important jurisdiction exercised by the Supreme Court and the <\/p>\n
     High   Courts.   The   Courts   in   a   number   of   cases   have   given <\/p>\n
     important   directions   and   passed   orders   which   have   brought <\/p>\n
     positive   changes   in   the   country.   The   Courts’   directions   have <\/p>\n
     immensely   benefited   marginalized   sections   of   the   society   in   a <\/p>\n
     number   of   cases.   It   has   also   helped   in   protection   and <\/p>\n
     preservation   of   ecology,   environment,   forests,   marine   life, <\/p>\n
     wildlife   etc.   etc.   The   court’s   directions   to   some   extent   have <\/p>\n
     helped   in   maintaining   probity   and   transparency   in   the   public <\/p>\n
     life.  Hon’ble  Apex   Court   while   exercising   its   jurisdiction   of <\/p>\n
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\n                                            44<\/span>
\n     judicial review realized that a very large section of the society <\/p>\n
     because   of   extreme   poverty,   ignorance,   discrimination   and <\/p>\n
     illiteracy  had been   denied justice  for  time  immemorial and in <\/p>\n
     fact   they   have   no   access   to   justice.   Predominantly,   to   provide <\/p>\n
     access to justice to the poor, deprived, vulnerable, discriminated <\/p>\n
     and   marginalized   sections   of   the   society,  Hon’ble  Court   has <\/p>\n
     initiated, encouraged and propelled the public interest litigation.\n<\/p><\/blockquote>\n
     The   litigation   is   upshot   and   product   of  Hon’ble  Apex   Court’s <\/p>\n
     deep   and   intense   urge   to   fulfill   its   bounded   duty   and <\/p>\n
     constitutional obligation.   The courts expanded the meaning of <\/p>\n
     right   to   life   and   liberty   guaranteed   under   Article   21   of   the <\/p>\n
     Constitution.   The   rule   of   locus-standi   was   diluted   and   the <\/p>\n
     traditional   meaning   of   ‘aggrieved   person’   was   broadened   to <\/p>\n
     provide access to justice to a very large section of the society <\/p>\n
     which was otherwise not getting any benefit from the judicial <\/p>\n
     system. In paragraph 36, Hon’ble Apex Court observes that little <\/p>\n
     Indians   in   large   numbers   seeking   remedies   in   courts   through <\/p>\n
     collective proceedings, instead of being driven to an expensive <\/p>\n
     plurality of litigations, is an affirmation of participative justice in <\/p>\n
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\n                                             45<\/span>
\n     our democracy. Hon’ble Court states that the narrow concepts of <\/p>\n
     ’cause of action’, ‘person aggrieved’ and individual litigation are <\/p>\n
     becoming obsolescent in some jurisdictions.\n<\/p>\n
     37.                   Thus   there   can   not   be   any   estoppel   or <\/p>\n
     acquiescence in such matters by local residents  when this Court <\/p>\n
     has found the cause presented to it as public cause & cognizance <\/p>\n
     is taken in larger public interest.  The limitations laid by Hon’ble <\/p>\n
     Apex Court can not enable the wrongdoers &   manipulators to <\/p>\n
     hide   behind   the   technicalities   or   by   continuing   to   indulge   in <\/p>\n
     activities prejudicial to public at large. In   Mohd. Aslam v. Union  <\/p>\n
     of India,<\/a> (2003) 4 SCC 1, Hon’ble Apex Court  has considered the <\/p>\n
     technical   objections   raised   in     situation   when   it    has   treated <\/p>\n
     letters, telegrams or postcards or news reports as writ petitions.\n<\/p>\n
     In such petitions, on the basis of pleadings that emerge in the <\/p>\n
     case   after   notice   to   different   parties,   relief   can   be   given   or <\/p>\n
     refused.  Therefore,   Court should not approach matters where <\/p>\n
     public   interest   is   involved   in   a   technical   or   a  narrow   manner.\n<\/p>\n
     Particularly,   when   Court   has   entertained   the   petition,   issued <\/p>\n
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\n                                          46<\/span>
\n     notice to different parties. It would not be appropriate for the <\/p>\n
     Court to dispose of the petition on such grounds. In proceeding <\/p>\n
     before Hon’ble Apex Court initiated as a public interest petition, <\/p>\n
     several reliefs were claimed but after the interested parties were <\/p>\n
     impleaded   and   their   pleadings   were   put   forth,   Hon’ble   Apex <\/p>\n
     Court gathered what   crystallized   therefrom as the controversy <\/p>\n
     involved. Jagdish Mandal vs. State of Orissa,<\/a>  (supra) laying down <\/p>\n
     scope  of  judicial review in award of contracts is therefore  not <\/p>\n
     attracted & decisive in present facts.\n<\/p>\n
     38.                     In this situation, we find that respondents 2 & 3 <\/p>\n
     have not made clean breast of matter. These Respondents along <\/p>\n
     with   last   Respondent   are   trying   to   take   shelter   behind <\/p>\n
     technicalities. Violation of final development plan and injury to <\/p>\n
     rights of local residents for whose benefit the reservation exists is <\/p>\n
     sufficiently   established   and   needs   redress   in   public   interest.\n<\/p>\n
     Respondent   no.   1     State   of   Maharashtra   has   not   found   it <\/p>\n
     necessary to clarify the position. We find that E-tender floated by <\/p>\n
     Respondent   3   does   not   depict   clear   position   which   said <\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:50:19 :::<\/span>
\n                                           47<\/span>
\n     Respondent has revealed in pre-bid meeting on 17\/9\/2010.  We <\/p>\n
     therefore quash the entire process undertaken by Respondent 3 <\/p>\n
     including   allotment   effected   in   favour   of   Respondent   4   on <\/p>\n
     07.01.2011.\n<\/p>\n
     39.          Petition is accordingly allowed, however, without any <\/p>\n
     order as to costs.\n<\/p>\n
                  JUDGE                                      JUDGE   <\/p>\n
                  At   this   stage,   Shri   Bhangde, learned   counsel   for <\/p>\n
     Respondent No. 4 states that the position prevailing today should <\/p>\n
     be   continued   for   a   period   of   six   weeks   so   as   to   enable <\/p>\n
     Respondent No. 4 to take further appropriate steps in the matter.\n<\/p>\n
                  Shri   Jaiswal,   learned   counsel   for   the   petitioner   is <\/p>\n
     opposing the request.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:50:19 :::<\/span>
\n                                      48<\/span><\/p>\n
                However, in the interest of justice and looking to the <\/p>\n
     nature of controversy, we direct parties to maintain status quo as <\/p>\n
     on today for a further period of six weeks.  The said order shall <\/p>\n
     cease to operate automatically thereafter.\n<\/p>\n
                JUDGEig                                JUDGE   \n                   \n                                  *******\n      \n\n\n     *GS.\n   \n\n\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 17:50:19 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-246343","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDr. Surendra Ramlal Tiwari vs State Of Maharashtra on 12 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-surendra-ramlal-tiwari-vs-state-of-maharashtra-on-12-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Surendra Ramlal Tiwari vs State Of Maharashtra on 12 October, 2011 - 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