The main legal point established in the judgment is that the appointment of the implementing agency and allocation of funds under the Vaishishtyapurna Yojna were within the executive authority of the State and did not violate the statutory provisions or the Constitution of India.

ORDER :

1. The petitioner assails Clause 3 of Government Resolution dated 03.10.2018 appointing respondent no. 3 Public Works Department (P.W.D.) as implementing agency being illegal, arbitrary and violative of Article 14, 19(1) (g) and Article 243-W of the Constitution of India and in contravention to the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 (hereinafter referred to as “Act 1965”). On the same ground the petitioner assails Clause 5 of Government Resolution dated 17.11.2017. The petitioner also assails letter dated 04.12.2018 issued by respondent no. 1 sanctioning 13 works to be carried out within the limits of the petitioner-Municipal Council and further letter dated 19.12.2018 issued by respondent no. 2. The petitioner further seeks direction to release fund of Rs. 2 crores in favour of petitioner and allow the petitioner to carry out the work as reserved under the Resolution No. 607 passed by General Body Meeting held on 26.11.2018.

2. Mr. Dhorde, learned senior counsel eruditely made submissions. According to the learned senior counsel:-

(a) The government under Government Resolution dated 17.11.2017 laid the modalities for Vaishishtyapurna Yojna. Under Clause 5 it kept the power unto itself to appoint implementing agency. Clause 5 appointing implementing agency as per its discretion is without guidelines. The discretion can not be unfettered. The Municipal Council run by the Councilors of ruling party are appointed as implementing agency, whereas in case of Municipal Council under control of opposition party P.W.D. is appointed as implementing agency. The same is arbitrary and illegal.

The learned senior counsel relies on Article 243-W of the Constitution of India to contend that the provisions are required to be made with respect to the performance of function and the implementation of the schemes as may be entrusted to the Municipalities including those in relation to the matters listed in 12th Schedule of the Constitution of India. The 12th Schedule of the Constitution includes work provided under the Government Resolution dated 17.11.2017 and therefore, only the Municipal Council has right to carry out the work enlisted in Government Resolution dated 17.11.2017 inter-alia would be the implementing agency. Clause 5 of the Government Resolution dated 17.11.2018 and Government Resolution dated 03.10.2018 is illegal and violative of Article 14, 19(1)(g) of Constitution of India.

(b) Section 90 of the Act, 1965 provides that funds received from the Government constitute Municipal funds. Rs. 2 crores has been sanctioned under Vaishishtyapurna Yojna. The said fund would be a Municipal fund and as such Municipal Council only has authority to carry out the work. The respondent is encroaching upon the powers of the Municipal Council bestowed by the Act, 1965.

(c) It is only for political consideration P.W.D. is appointed as implementing agency. For other Municipal Councils the respective Municipal Councils are appointed as implementing agency to carry out the work under Vaishishtyapurna Yojna. The wife of local MLA contested the election for the post of President of the petitioner Municipal Council. She was defeated and as such local MLA has a grudge and he is instrumental in appointment of P.W.D. as implementing agency.

(d) The petitioner had passed Resolution bearing No. 607 in its General Body Meeting dated 26.11.2018 detailing the work to be carried out under Vaishishtyapurna Yojna. The same was in consonance with the scheme.

(e) The works detailed by the State under Government Resolution are not warranted. The same are not the works to be carried on public place. Some works are on non existent lands. Arbitrariness is writ large.

(f) The respondent be directed to disburse the amount of Rs. 2 crores to the petitioner and permit the petitioner to carry out the work as per its resolution dated 26.11.2018 bearing No. 607. The learned senior counsel to buttress his submissio