Disposed

Milind Yashwantrao Dabhade and Ors. v. the State of Mah and Ors.

Bombay HC18 Feb 2014PIL/90/2012

Case brief

AI extract

What is this about?

The High Court held that Section 66A of the Maharashtra Municipal Corporations Act permits Private Public Participation in drinking water schemes. The Court directed the State Government to decide expeditiously, by March 18, 2014, whether to approve the Aurangabad Municipal Corporation's contract with a private agency for water supply implementation.

What did the court decide?

Directed the State Government to take a decision on the private agency contract proposal for drinking water supply by March 18, 2014.

Milind Yashwantrao Dabhade and Ors. Vs the… — Public Procurement and Tenders | Bombay HC (2014)

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PIL/112/2013+

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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PUBLIC INTEREST LITIGATION NO. 112 OF 2013 WITH PUBLIC INTEREST LITIGATION NO.8 OF 2012 WITH CA/14448/2012 & CA/5012/2013 WITH PUBLIC INTEREST LITIGATION NO. 90 OF 2012 WITH CA/111/2013

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MADHUKAR LAXMANRAO VAIDYA VERSUS THE STATE OF MAHARASHTRA AND OTHERS

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... Advocates for Petitioners : S/Shri Sachin S.Deshmukh, A.S.Golegaonkar and Pradip Patil ASG for Respondent - Union : Shri Alok Sharma GP for Respondent - State : Shri S.V.Kurundkar Advocate for Respondent - Corporation : Shri N.B.Khandare

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CORAM : S.C.DHARMADHIKARI & RAVINDRA V. GHUGE, JJ. Dated: February 18, 2014

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PER COURT :-

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The petitioners are, in the public interest, approaching this Court seeking early implementation of certain schemes and projects, so as to ensure to the residents of the Aurangabad city, supply of drinking water.

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Our attention has been invited to the fact that the Government has to, in part compliance of its obligations, approve the bye-laws which have been forwarded and proposed by the Aurangabad Municipal Corporation (for brevity, hereinafter "the AMC"), so as to enable the AMC to charge, and in the form of money, for supply of drinking water.

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We have been also taken through the scheme of the Maharashtra Municipal Corporations Act. Our attention has been invited to Section 66A of

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PIL/112/2013+

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the said Act, which reads as under:-

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" 66A. Performance of functions by agencies.

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When any duty has been imposed on, or any function has been assigned to, a Corporation under this Act or any other law for the time being in force, or a Corporation has been entrusted with the implementation of a scheme, by the State Government or any other authority, -

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(i) the Corporation may, either discharge such duty or perform such function or implement such schemes by itself; or

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(ii) subject to such directions as may be issued and the terms and conditions as may be determined by the State government, cause it to be discharged, performed or implemented by any agency;

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Provided that, the Corporation may also specify terms and conditions, not inconsistent with the terms and conditions determined by the state Government for such agency arrangements."

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A bare perusal of the same would indicate that when any duty has been imposed upon or any function has been assigned to a Corporation under the Maharashtra Municipal Corporations Act or any other law for the time being in force, or the Corporation has been entrusted with the implementation of the scheme by the State Government or by any other authority, the Corporation may discharge such duty or perform such function or implement such scheme by itself and subject to such directions as may be issued and the terms and conditions as may be determined by the State

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PIL/112/2013+

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Government, cause it to be discharged, performed or implemented by any agency.

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The Corporation is free to specify the terms and conditions, not inconsistent with the terms and conditions determined by the state Government for such agency arrangements.

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We are of the view that the scheme of the act is not averse to participation or involvement of a private agency. In a welfare scheme, including for ensuring provision for a clean and continuous drinking water, the entity like Municipal Corporation can involve a private agency, the Act does not prohibit or rule out participation of the private agency. Thus, in principle, a public private participation and in the project of this nature is not something which runs contrary to or defeat the purpose of the Act.

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However, in involving a private agency, the Corporation is bound by the terms, as may be issued and the conditions as may be determined by the State Government. In the facts and circumstances, it is stated that the private agency has been identified by the AMC. It has struck a deal or has accepted a contract with such a private participant, way back in the year 2011. The Contractor claims that it has set up the infrastructure in place and he is ready and willing to work and implement the project but the State Government has not given a final sanction or approval to the arrangement made by the AMC.

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PIL/112/2013+

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The AMC does not dispute that they have approached the State Government seeking sanction or approval to the arrangement which is presently devised by it.

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It is that part of the matter, which is still pending with the Government and the public interest litigant in PIL No.112 of 2013, therefore, prays that the State Government may be directed to take an early and expeditious decision in the matter so as to avoid inconvenience to residents of Aurangabad city.

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We are not unmindful of the fact that the State Government has ample powers in the scheme of this Act and particularly under Section 66A. The State government may entrust the AMC with the task of implementation of the scheme devised by itself or any other authority. Even if the State is not entrusting the AMC with the implementation of the scheme, evolved and prepared by it or by any other authority, still the arrangement that is devised by the AMC will have to be sanctioned and approved, meaning thereby the State Government can scrutinize, as to whether the present arrangement or the scheme devised by the AMC meets with its directions and terms and conditions as may be determined by it. It is this aspect, which is pending consideration of the Government, we would expect the Government to take early decision on the pending proposal in that behalf.

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We, therefore, direct the State Government to take such a decision as expeditiously as possible and in any event on/or before 18.3.2014. The

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PIL/112/2013+

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decision may be communication to the AMC.

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We clarify that we have expressed no opinion on what should be the decision. It would be open for the State to take a decision in terms of the Maharashtra Municipal Corporations Act and Section 66A thereof. It would be also open for the Government to scrutinize the proposal of the AMC in terms of its own directions or directives and issue early order. The State is free to approve the present scheme and in the very form or with modifications or with changes, as it deems fit and proper. The State can also take any decision, so as to subserve the larger public interest and ensure that the AMC and the residents of Aurangabad city can have an access to clean, pure so also contineous water supply.

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Public Interest Litigation No.112 of 2013 stands disposed of with these directions.

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Other Public Interest Litigations filed by the residents and seeking quashing and setting aside the decision of the AMC to award the contract, need not be entertained at this stage. In the event the State Government sanctions and approves the contract or upholds the decision of the AMC in that behalf, then it will be open for the petitioners to avail of such remedies as are available to them in law. We clarify that it would be for the petitioners to raise their grievances before the State Government and the Public Interest Litigations need not be kept pending. The Government may consider the present petitions as complaints or representations in relation to

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PIL/112/2013+

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the contract already executed and communicate the decision to the petitioners in this regard.

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We would highly appreciate if the petitioners and public interest litigants or pubic spirited citizens as they claim to be, themselves evolve such schemes and endeavour to implement them rather than depending upon the public bodies to frame and implement the scheme for drinking water. The citizens are equally duty bound to come forward and suggest the measures and submit concrete proposals and not resist them by filing litigations. Let the petitioners realize that it is equally their duty to build and construct something rather than have the existing structure and framework demolished, that takes them nowhere.

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Hence Public Interest Litigation Nos. 8 of 2012 and 90 of 2012, stand disposed of accordingly.

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Pending Civil Applications in all these petitions do not survive and stand disposed of.

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( RAVINDRA V. GHUGE, J. ) ( S.C.DHARMADHIKARI, J. )

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Milind Yashwantrao Dabhade and Ors. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Milind Yashwantrao Dabhade and Ors. v. the State of Mah and Ors.

Case brief

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What did the court decide?

What the court decided

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