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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
V.M. KANADE AND SANGITRAO S. PATIL, JJ.
Chhabildas s/o. Tukaram Khadke and Ors. - Petitioners
Vs.
Jalgaon Municipal Council, through its Chief Officer, Jalgaon and Ors. - Respondents
WRIT PETITION NO. 2944 OF 1997
Decided On : 12-01-2017
It has to be noted that in this petition, prayer for refund of amount, which has been made pursuant to the order passed by the Arbitrator, is not made. Even otherwise, the question is, whether the order passed by the Arbitrator, who has been appointed pursuant to the arbitration clause under the Act, can be set aside by this Court while exercising the writ jurisdiction. It is an admitted position that the directions given by the Arbitrator have not been challenged on the ground of fraud or those being against the public policy. It is not, therefore, now open for the petitioners to challenge the said order, particularly when there is no such prayer made in this petition. Court is, therefore, not inclined to interfere with the order passed by the Arbitrator while exercising the writ jurisdiction under Article 226 of the Constitution of India.
Constitution of India, 1950-Article 226-Specific Relief Act, 1963, Section 14-Specific performance of contract.-Relief of specific performance of contract, cannot be granted in exercise of writ jurisdiction.
The petitioners in this petition is seeking reliefs in terms of prayer clauses (A) and (B). So far as prayer clause (B) is concerned, the said relief is in the nature of specific performance of contract and such relief cannot be granted by this Court while exercising its writ jurisdiction under Article 226 of the Constitution of India.
V.M. KANADE, J.
Heard the learned Senior Counsel for the petitioners and the learned Counsel for the respective respondents, at length.
2. Brief facts, which are relevant for the purpose of deciding this petition, are as under:-
3. A plot of land belonging to one Liladhar Bhatia was gifted by him to A.P.M.C., Jalgaon. Thereafter, said Bhatia expired and his heirs decided to give the plot to respondent no.1 Jalgaon Municipal Council (“the Municipal Council”, for short). Accordingly, the Municipal Council became owner of the plot.
4. The Municipal Council decided to develop the plot and a tender bid was invited for construction of a 17story building and also two other buildings. Since the plot was not developed for a long period, there were several encroachments on the said plot. Ultimately, tender bid was awarded to a developer namely, M/s. Golani Brothers, respondent no.5 (“the developer”, for short). In the agreement, it was agreed that the developer would construct a 17-story building, which would be used for administrative offices of the Municipal Council, and the developer would rehabilitate all the shop keepers, who have constructed the shops on the said plot.
5. Half way during the construction, the developer could not construct the remaining portion of the building. The construction was also delayed on account of the suits filed in the Courts and other circumstances. In the meantime, there was escalation in the cost of construction and the developer was unable to complete the construction work at the rate given in the agreement. According to the Municipal Council, under those circumstances, it had two options, either to file a suit against the developer for recovery of damages for nonperformance of the agreement or to purchase 206 flats. Accordingly, the flats were purchased and thereafter, the developer completed remaining construction of the building. A resolution to that effect was passed by the Municipal Council.
6. The petitioners challenged the resolution passed by the Municipal Council, before the Collector under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (“the Act”, for short). The Collector, Jalgaon, vide order dated 27.07.1993, suspended execution of the resolution holding that the resolution was not in the interest of public and there was loss of revenue to the Municipal Council. The Divisional Commissioner, vide order dated 29.08.1994, confirmed the order passed by the Collector. Against that order, a Revision Application was preferred before the Hon'ble Minister, who set aside the order passed by the Collector and the Divisional Commissioner and confirmed the resolution passed the Municipal Council. Being aggrieved by the decision of the Hon'ble Minister, the petitioners have filed this petition in this Court.
7. Initially, this Court dismissed the petition interalia holding that there was no public interest involved. Against that order, the petitioners preferred a Special Leave Petition in the Apex Court. The Apex Court, sometime in the year 2001, set aside the order passed by this Court and remanded the matter back for further consideration. The matter was heard, thereafter, on several occasions. At one stage on 13.11.2014, this Court asked the petitioners, whether they are still interested in pursuing the matter.
8. After the order was passed by the Hon'ble Minister, other subsequent events had taken place. It appears that in the agreement between the Municipal Council and the developer, there was a provision for appointment of an Arbitrator and accordingly, the Arbitrator was appointed. The Arbitrator decided the reference and increased the payment which was to be made to the developer, and the developer was accordingly paid the amount by the Municipal Council.
9. Mr. Dixit, learned Senior Counsel appearing for the petitioners submits that a huge financial loss has been caused to the Municipal Council on account of excess payment made by the M
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