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2012 Supreme(Bom) 2033
In the High Court of Bombay at Nagpur
P.V. HARDAS & A.P. BHANGALE, JJ.
Dr. Surendra Ramlal Tiwari & Another
Versus
State of Maharashtra, through its Secretary, Urban Land Development Department & Others
P.I.L. No. 74 of 2010
Decided on : 20-10-2012
For the Petitioners:A.S. Jaiswal, Advocate.
For the Respondents:R1, Mrs. Bharti Dangre, Addl. G.P., R2 & R3, S.K. Mishra, R4, M.G. Bhangde, Sr. Advocate with R.M. Bhangde, Advocates.
The Court held that the modification of reservation of land for Primary School, Secondary School, and Playground in the Development Plan was not valid as it was done without following the due process of law and without considering the public interest.
Headnote:
PUBLIC INTEREST LITIGATION - DEVELOPMENT PLAN - RESERVATION OF LAND FOR PRIMARY SCHOOL, SECONDARY SCHOOL AND PLAYGROUND - MODIFICATION OF RESERVATION - ALLOTMENT OF LAND TO BHARATIYA VIDYA BHAVAN (BVB) - CHALLENGE - VALIDITY OF TENDER PROCESS - BIAS AND MALA FIDES - PUBLIC INTEREST - WRIT PETITION - MAINTAINABILITY - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
The Nagpur Improvement Trust (NIT) issued a notice inviting offers to develop the aforesaid plot nos. SW-164 and SW-165 for the Primary and Secondary School on Public–private participation basis, contrary to the unanimous resolution passed by the NMC and modification proposed by it. The petitioners, who represent the residents of the area concerned, had made representations to the Planning Authority to declare the entire land comprising of plot nos. SW-164, SW 165, MSW-16 of the land Khasra no. 12 in Bhamti-Parsodi Street Scheme as a ‘playground’ and their prayers in the petition in the public interest were to quash an advertisement issued on dated 29.03.2010 with its Corrigendum issued later and the subsequent tender notice similarly published in September, 2010 by the NIT.
Finding of the Court:
The Court found that the NIT and the NMC had not made a clean breast of the matter and were trying to take shelter behind technicalities. The Court held that the violation of the final Development Plan and injury to the rights of local residents, for whose benefit the reservation exists, was sufficiently clear and needed redressal in the public interest. The Court also found that the e-tender floated by the NMC did not depict the clear position which the NMC had revealed in the pre-bid meeting on 17/9/2010. Therefore, the Court quashed the process undertaken by the NMC including the allotment effected in favor of BVB on 7/1/2011.
Issues: 1. Whether the modification of reservation of land for Primary School, Secondary School, and Playground in the Development Plan was valid? 2. Whether the allotment of land to Bharatiya Vidya Bhavan (BVB) was valid? 3. Whether the tender process for the allotment of land was valid? 4. Whether the petitioners had the locus standi to file the Public Interest Litigation? 5. Whether the Court had the jurisdiction to review the decision-making process of the NIT and the NMC?
Ratio Decidendi: 1. The Court held that the modification of reservation of land for Primary School, Secondary School, and Playground in the Development Plan was not valid as it was done without following the due process of law and without considering the public interest. 2. The Court held that the allotment of land to Bharatiya Vidya Bhavan (BVB) was not valid as it was done in violation of the Development Plan and without considering the public interest. 3. The Court held that the tender process for the allotment of land was not valid as it was not transparent and was conducted in a manner that favored BVB. 4. The Court held that the petitioners had the locus standi to file the Public Interest Litigation as they were representing the residents of the area who were affected by the modification of reservation of land and the allotment of land to BVB. 5. The Court held that it had the jurisdiction to review the decision-making process of the NIT and the NMC as the matter involved public interest.
Final Decision: The Court quashed the process undertaken by the NMC including the allotment effected in favor of BVB on 7/1/2011.
A.P. Bhangale, J.
1. Pursuant to Misc. Civil Application No.1129 of 2011 (Review Application) preferred by Bhartiya Vidya Bhavan (hereinafter referred to as “BVB”.) through its Attorney Shri T.G.L. Iyer, Civil Lines, Nagpur with a prayer to recall the Judgment dated 12th October, 2011, we had heard the parties and by order dated 26th April, 2012, we had recalled the Judgment dated 12th October, 2011 and restored the Public Interest Petition No.74 of 2010 for hearing afresh.
2. The challenge was to the action of local Planning Authority – Nagpur Improvement Trust (hereafter referred to as “N.I.T.”) for allotment of the land, which was reserved in the Development Plan for Primary School, Secondary School and Playground to Bhartiya Vidya Bhavan, an educational Institution/Trust. The petition was accepted as a Public interest Litigation pursuant to orders of the learned Senior Judge of the Bench at Nagpur dt.2.12.2010 and 6.12.2010 and notices were issued to the respondents named in the P.I.L.
3. The grievance of the BVB is that it had proposed to start the Primary and Secondary School of CBSE pattern in English Medium on the ground that it is required in Khasra No.12, mouza Bhamti (Bhamti-Parsodi Street Scheme) in the City of Nagpur. But the entire tender process was set aside by this Court initiated by e-tender, dated 06/09/2010. According to the BVB, there was no challenge in the petition that the area of the School has been increased and the area reserved for the playground is decreased without following the procedure according to law. According to the BVB, the Writ Petitioners had not challenged non-communication of the decision taken in the pre-bid meeting to the general public. According to the BVB, the minutes of the pre-bid meeting were communicated on the web site ‘www.nittenders.com’ on 01/10/2010 and the last date for the submission of the bid was 20/10/2010. According to the BVB, there was no challenge to violation of the Development Plan by reduction of the playground by allowing a restaurant in the residential Zone. The BVB contended that the restaurant was not meant for the general public nor for their school. It was a Canteen strictly for the refreshment for the people coming to the playground to be conducted by the Contractor appointed by the Nagpur Improvement Trust (N.I.T.). It is further contended that there is no plan for the commercial activity. The restaurant is to situate at the Corner occupying 90 Sq. Meters out of 13537 Sq. Meters within the permissible Zone. According to the BVB, there is no violation of the Development Regulations 2000 for Nagpur City and the dominant user will not change. It is also contended by the BVB that the public interest would not be injured/affected by the Restaurant/canteen as it is for the people using the playground. Further, according to the BVB, the Writ Petitioners had not challenged the fact that the last date for the submission of e-tender was 05/10/2010 and opening has been on 05/10/2010, but the resolution to participate in the tender process was made by the BVB at Mumbai on 15/10/2010. According to the BVB, the tender process was extended by the N.I.T. till 20/10/2010 by publishing the corrigendum on 30/09/2010 in the newspapers “The Hitavada”, “Lokmat Samachar”, “Deshonnati”, and “Navbhrat” and the bid was submitted on-line on 19/10/2010 within the extended time. According to the BVB, the Writ Petitioners had not raised a challenge that the names of the two participants were not recorded in the pre-bid meeting. The BVB submitted that there was separate attendance sheet for that purpose and the attendees had duly signed. Further, according to the BVB, apart from the land area of 11136 sq.meters, the N.I.T.’s land was also included to make it 13557 Sq. meters for the project of playground plus Garden. The BVB submitted that the entire area is included in Project A (playground+Garden at the periphery and left over places of the playground). According to the B
