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2014 Supreme(Bom) 476
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & Z.A. HAQ, JJ.
Nandkishor & Others
Versus
The State of Maharashtra through the Secretary, Urban Development Department & Others
Writ Petition No. 3973 of 2013
Decided On : 24-02-2014
For the Petitioners:M.G. Bhangde, Senior Advocate with V.V. Bhangde, R.M. Bhangde, Advocates.
For the Respondents:R1 & R4, B.H. Dangre, Additional GP, R3, C.S. Kaptan, Senior Advocate with P.S. Chauhan, R5, A.P. Kalmegh, K.S. Narwade, Advocates.
Headnote:Maharashtra Municipal Corporation Act, 1949 - Sections 63, 82 and 88 Constitution of India, Articles 14 and 166 Utilization of Municipal Fund. - Power of utilization of Municipal Fund by Municipal Corporation, may be substituted or superseded by State Government. - The power with the State Government to order execution of any work through the special grants does not enable it to exercise it arbitrarily. Basically, the need for any type of works in a particular area will first be realized by the Municipal Corporation and such works will first figure in its list. The State Government may, in a deserving situation substitute one or few works therein, or may at the threshold, direct particular works to be undertaken through said grants, if it finds execution of such works expedient. When the Act primarily obliges the Municipal Corporation to provide for all the municipal needs, such power given to the State Government to supersede or substitute the decision of the Municipal Corporation can be taken recourse to only in exigencies and after satisfaction that the work directed by the Government deserves precedence. Normally, in the democratic set up, the desire of the general body of corporators in such matters of public interest, the works selected by general body of the Corporation must be given primacy. In present facts, there is nothing before us to comprehend any application of mind by the Government qua the list of works submitted by respondent No. 3 or list handed over by him to the district level committee.
B.P. Dharmadhikari, J.
By this petition filed under Article 226 of the Constitution of India, Four Corporators of Respondent No.5 – Municipal Corporation seek a direction to quash and set aside the order of Respondent No.2 – the Hon'ble the Chief Minister, State of Maharashtra and consequential orders / steps in pursuance thereto. They submit that amount of Rs.25 crores released to Respondent No. 5 – Municipal Corporation must be permitted to be used by Respondent No.5 – Municipal Corporation in its discretion as per law. Respondent No.5 is a Body Corporate constituted under Maharashtra Municipal Corporation's Act, 1949 (hereinafter referred to as the Act). It has filed reply dated 18.12.2013 in support of the petitioners. This Court has on 24.07.2013 restrained Respondent No.5 – Municipal Corporation from parting with funds which it has received. That order continues to operate even today. In this situation, with the consent of the parties, writ petition is heard finally by issuing Rule and making it returnable forthwith.
2. Respondent No.1 State Government has released grants of Rs.2,50,00,000/as per Government Resolution dated 06.04.2013 to enable Municipal Corporation to provide elementary facilities and developments in municipal area. This is because of abolition of octroi and introduction of Local Body Tax (LBT). The said grant casts an obligation to contribute equal amount on Respondent No.5.
3. Respondent No.3 is a Member of Legislative Assembly (MLA) in Maharashtra, elected from Badnera Constituency. Respondent No.5 has got jurisdiction over two Legislative Assembly Constituencies viz., Amravati and Badnera. Respondent No.3 on 23.05.2013 sent a communication to Respondent No.2 – Chief Minister and stated that out of grants of Rs.25 crores, 12.5 crores needed to be spent in his constituency viz., Badnera Constituency and hence direction should be issued to Respondent No.4 – Divisional Commissioner for said purpose. He also requested that implementing Agency should be changed and work should be handed over to Public Works Department (PWD), Amravati, as works earlier done by PWD are satisfactory and Amravati Municipal Corporation did not complete its development works as expected & to match required standards. He, therefore, requested Chief Minister to direct Respondent No.1 to issue an order to Respondent No.4 to use Rs.12.5 crores for development activities through PWD in Badnera constituency. He also included list of 196 works on which the funds he proposed said funds to be spent. Respondent No.2 – Chief Minister has on 03.06.2013 put a remark to include said works and to nominate PWD as agency. This has been then implemented by Respondent No. 1 by issuing a communication dated 08.07.2013 to Respondents No.4 & 5. The said communication directs both these authorities to see that Municipal Corporation contributes its due share of 50%.
4. All these steps and communications are questioned in this petition by Four Corporators. They rely upon a resolution of Municipal Corporation dated 20.07.2013 to urge that the amount of Rs.25 crores received by Municipal Corporation is towards reimbursement on account of deficit in LBT and the Corporation in turn has to contribute equal amount. The Corporation, therefore, resolved unanimously to undertake the development activities departmentally looking to mandate of 73rd Constitutional Amendment. The office of Corporation was directed to prepare list of works worth Rs.12.5 crores each for both Constituencies. On 23.07.2013, Respondent No. 4 wrote to Respondent No. 5 asking it to transfer funds of Rs.12.5 crores to Public Works Department.
5. Shri Bhangde, Senior Advocate on behalf of the petitioners states that Respondents No.1 to 3 do not have this jurisdiction and directions issued by them are in violation of 73rd Constitutional Amendment. As the grants received constitute Municipal funds, the Municipal Corporation is competent to spend it for development activities as per its nee
