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2019 Supreme(Bom) 1043
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, G.S. PATEL, JJ.
Prashant Bhagwantrao Palande - Appellant
Versus
Mira-Bhayandar Municipal Corporation - Respondent
Writ Petition No. 4448 of 2013
Decided On : 13-06-2019
Ganesh Sovani, Adv., N.R. Bubna, Adv., Ashwini A Purav, Adv., Milind Sathe, Adv., Nikita Panse, Adv., Veritas Legal, Adv.
Headnote:
Constitution of India,1950 – Article 14 and 226 - Maharashtra Municipal Corporation Act 1949 -Section 451 and 79(c) - Maharashtra Regional and Town Planning Act 1966 – Section 44 - Pending admission - Immovable property - Lease - This Petition has been pending admission when it was filed - It has been amended several times since then - Affidavits in Reply have been filed - Respondents waive service - By consent, Rule made returnable forthwith, and taken up for hearing and final disposal - Petitioner before court is a resident ,which falls within the Municipal limits of Municipal Corporation, 1st Respondent - Petitioner says that he is an active social worker and was also once a Corporator of this Corporation - 1st Respondent is a body corporate constituted under the then Bombay Provincial Municipal Corporation Act 1949 and now the Maharashtra Municipal Corporation Act 1949 - 2nd Respondent is the State of Maharashtra through Principal Secretary, Department of Urban Development - It is stated that State has an overriding power of control conferred by Section 451 of the MMC Act - 3rd Respondent to this Petition is a private limited company engaged in business of developing properties - 4th Respondent is the Deputy Municipal Commissioner of 1st Respondent Corporation - 3rd Respondent to this Petition claims to be owner of a certain immovable property that is more particularly described with development rights therein - 3rd Respondent obtained a development permission under Section 44 of the Maharashtra Regional and Town Planning Act 1966 in the form of a commencement certificate in regard to this property - 3rd Respondent wrote a letter to the 1st Respondent urging that as per the valuation made by the valuer the ideal monthly rent of the construction to be used as a school should be sum - 3rd Respondent also stated that all the terms and conditions imposed were agreed save and except with regard to the lease rent - Whether this mandate and principle would apply to the facts and circumstances of a particular transaction and case before court – Held, it is in this factual background Court came to conclusion that 6th respondent was continuing with the contract and that should be allowed to be operated, but the interests of justice as also Constitutional and the legal mandate demanded that Municipal Corporation should execute such agreements only after it had invited bids and offers from the public - It was once again clearly a violation of the Constitutional mandate Court do not think that there is any quarrel with this principle - Court do not believe it can or will, for the reasons we have already set out in detail - Once the principle is applied in this manner, then court do not think that even this decision will carry case of Petitioner any further - Supreme Court therefore held that sale was not in violation of any rules or regulations - Principle enunciated is that it is not every disposal of land under Section 79 that is axiomatically or ipso facto suspect or per se violative of the mandate of Article 14 - Something more must be shown, and an otherwise valid transaction disposing of government land, when shown to be in conformity with the statute, cannot be set aside on mere speculation, surmise or conjecture of what might have been - Writ petition fails – Order accordingly.
JUDGMENT :
S.C. Dharmadhikari, J.
1. This Petition has been pending admission since 2013 when it was filed. It has been amended several times since then. Affidavits in Reply have been filed. Hence, Rule. Respondents waive service. By consent, Rule made returnable forthwith, and taken up for hearing and final disposal.
2. Heard learned Counsel for both sides.
3. By this Petition under Article 226 of the Constitution of India the Petitioner challenges the agreement dated 30th June 2011 executed by the Mira-Bhayandar Municipal Corporation with the Respondent No.3.
4. Having found that during the time this Petition was pending admission there were subsequent developments, the Writ Petition was amended and three other reliefs were sought. The three reliefs sought by way of amendments are as under:
"27(b-ii) this Hon'ble Court may be pleased to declare that an act of or the decision of the Respondent No.2 as conveyed to the Respondent No.1 vide its letter bearing No. MBM/AN.S.No.20/Pra. Kra 274/11/Navi-28, Dt. 24.06.2014 of not interfering with the decision taken by the Respondent No.1 of entering into agreement with the Respondent No.1 dated 30.06.2011 of selling the open amenity space to the Respondent No.3 is illegal, bad in law, malafide and it may be set aside and annulled.
(f ) That the Hon'ble High Court may be pleased to stay the order of stay granted by the Respondent No.2, vide its order Dt.20.01.2016 on the representation filed by the Respondent No.3 challenging the legality and the validity of the Resolution No. 32 passed by majority in the General Body Meeting held on 13.07.2015 till the disposal of the Petition,
(g) that the Hon'ble Court may be pleased to further direct the Respondent No.2 dispose of the representation @ appeal filed by the Respondent No.3 in respect of the Resolution Dt.13.07.2015 within a specific time period or in time bound manner after the Petitioner makes an application in the same as per the order Dt. 15.02.2016 passed by this Hon'ble Court."
5. Very few facts are required to appreciate the arguments of Mr. Ganesh Sovani appearing for the Petitioner.
6. The Petitioner before us is a resident of Mira Road (East), which falls within the Municipal limits of the Mira-Bhayandar Municipal Corporation, the 1st Respondent. The Petitioner says that he is an active social worker and was also once a Corporator of this Corporation.
7. The 1st Respondent is a body corporate constituted under the then Bombay Provincial Municipal Corporation Act 1949 and now the Maharashtra Municipal Corporation Act 1949 ("the MMC Act"). The 2nd Respondent is the State of Maharashtra through the Principal Secretary, Department of Urban Development. It is stated that the State has an overriding power of control conferred by Section 451 of the MMC Act. The 3rd Respondent to this Petition is a private limited company engaged in the business of developing properties. The 4th Respondent is the Deputy Municipal Commissioner of the 1st Respondent Corporation.
8. The 3rd Respondent to this Petition claims to be the owner of a certain immovable property that is more particularly described in paragraph 6 of the Petition, with development rights therein.
9. On 5th August 2010, the 3rd Respondent obtained a development permission under Section 44 of the Maharashtra Regional and Town Planning Act 1966 ("MRTP Act") in the form of a commencement certificate in regard to this property. This development permission was conditional, and one of the conditions was that it would cede a part of the property for a public amenity, viz., a school and a public playground. That land had to be surrendered to the 1st Respondent Corporation. In the commencement certificate, a copy of which is at Exhibit "A" to the Petition, the Municipal Corporation (which is the Planning Authority) categorically stated that the plot of land was earmarked in the building plans for educational purposes. Therefore, the development in terms of the commencement certificate had to abide by
