Sanjay Ratnakar Zinje v. the State of Maharashtra and Others

Bombay HC15 Dec 2016PIL/75/2016

Case brief

AI extract

What is this about?

The High Court at Aurangabad disposed of a PIL challenging the Ahmednagar Municipal Corporation's resolution to develop a vegetable market on:FBT basis. The Court held that the Standing Committee's resolution was consistent with past General Body decisions and did not enter into the realm of valuation. Despite declining to quash the tender on merits, the Court returned the deposited costs to the p

What did the court decide?

The petition was not entertained/disposed of without a decision on the merits of the quashing, but the deposit amount was directed to be returned to the petitioner.

Sanjay Ratnakar Zinje Vs the State of… — Pension and Retirement Benefits | Bombay HC (2016)

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PIL 75/16

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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 PUBLIC INTEREST LITIGATION NO.75/2016

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Sanjay S/o Ratnakar Zinje,
Age:54 Years,
Occupation: Social Work
and Business,
R/o Chitale Road,
Near Nehru Market,
Ahmednagar.
...Petitioner..

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Versus
1] The State of Maharashtra
(Through it’s Principal Secretary)
Urban Development Department,
Mantralaya, Mumbai-32.
2] The Ahmednagar Municipal Corporation,
(Through it’s Municipal Commissioner),
Ahmednagar.
3] The City Engineer,
Ahmednagar Municipal Corporation,
Ahmednagar.
4] The Town Planner,
Ahmednagar Municipal Corporation,
Ahmednagar.
5] The Assistant Director of
Town Planning,
Ahmednagar Municipal Corporation,
Ahmednagar.

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6] Shripad S/o Shankar Chhindam,
Age:33 years,
Occupation: Business and Corporator,
R/o Banesaheb Patangan,Opposite Santoshi Mata
Mandir,Satbhai Galli,Ahmednagar.
...Respondents...

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PIL 75/16

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 .....

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Ms.P.S.Talekar, Advocate for petitioner.
Smt.A.V.Gondhalekar, AGP for the State.
Shri V.S.Bedre, Advocate for Respondent No.2.

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 .....

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CORAM: S.V. GANGAPURWALA & K.L. WADANE, JJ.

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DATE: 15.12.2016

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ORAL JUDGMENT (Per S.V. Gangapurwala, J.):

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1]The petitioner assails the resolution dated

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20.2.2016 passed by the standing committee of Ahmednagar

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Municipal Corporation so also the tender notice issued

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for development of Nehru Vegetable Market and Shopping

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Complex at Chitale Road, Ahmednagar. Further directions
are sought against the Municipal Corporation, Ahmednagar
to develop Nehru Vegetable Market and Shopping Complex
at Chitale Road on its own rather than on FBT basis.

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2]Miss.P.S. Talekar, learned counsel for the

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petitioner submits that the petitioner is a resident of
Ahmednagar. The standing committee of Ahmednagar

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Municipal Corporation passed a resolution on 20.2.2016

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thereby resolving to develop on FBT basis Vegetable

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Market and Commercial Complex wherein the premium was
fixed at Rs.2,28,60,837/-. The learned counsel submits

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PIL 75/16 - 3 -

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that in view of the provisions of Sections 79(C) and
79(D) of the Maharashtra Municipal Corporations Act, it

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is only with the sanction of the Corporation, the

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Commissioner may lease, sell, let out on hire or
otherwise convey any property, movable or immovable
belonging to the Corporation. The general body would
constitute the Corporation. The standing committee does
not have any authority to pass any such resolution in
this regard. According to the learned counsel, the
general body has not passed any such resolution. In

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absence of the resolution being passed by the general
body, the Commissioner could not have floated the said
tender.

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3] According to the learned counsel, the action of the Commissioner in floating the tender on the basis of the resolution passed by the standing committee de hors taking general body into confidence is illegal, without authority and void ab initio . According to the learned counsel, the general body had earlier passed a resolution on 15.3.2013 that said Vegetable Market and Commercial

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Complex should be constructed by the Corporation on its
own. Prior to that, on 13.12.2011 also, a resolution was

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PIL 75/16

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passed by the standing committee. The learned counsel
further submits that the general body had further passed
a resolution allocating the funds on 5.7.2014. The
standing committee could not have passed a contrary
resolution. The learned counsel submits that even the
resolution passed by the standing committee does not
stand to the test of the Development Control Rules. The
basement can never be used for any business purpose
except parking. The said resolution of the standing
committee is also not in consonance with the building
bye-laws and the Development Control Rules. The learned
counsel submits that this illegal resolution passed by
the standing committee can very well be assailed by
invoking writ jurisdiction of this Court under Article
226 of the Constitution of India. For the said purpose,
the learned counsel relies on various judgments in the
following cases :-

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1] Jayesh Dayaram Bhoir v. State of Maharashtra & others.

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2012 (5) Mh.L.J.733.

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2] Kiran Ramchandra Suryavanshi v. State of Maharashtra & others. 2013(2) Mh.L.J.433.

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3] Kailas Bhagwan Hajare v. State of Maharashtra & others.

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PIL 75/16

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2009 (6) Mh.L.J.490.

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4] M.S.Samiti,Akola v. Municipal Corporation & others.

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2012 (4) Mh.L.J.874.

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5] Union of India and others v. Tantia Constructions Pvt.Ltd. (2011) 5 SCC 697.

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6] Bahadursinh Lakhubhai Gohil v. Jagdishbhai M.Kamalia & others. (2004) 2 Supreme Court Cases 65.

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7] Lokprakashan Ltd. v. Kanchanbhai Kanibhai Tadvi & others. With

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The Sandesh Ltd. v. Rameshchandra Babulal Shah & others.

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(2009) 9 Supreme Court Cases 43.

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8] Jamnagar District Development Trust v. Municipal Corpration 2013 SCC Online Guj 1364.

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9] Kanchanbhai Kanbhai Tadvi & others v. Municipal Corporation of the City of Vadodara & others. 2001 SCC Online Guj 84:AIR 2002 Guj 31:(2002) 1 GLH 790.

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The learned counsel further submits that the writ
petition could be tenable and the petitioner need not be
asked to avail th remedy u/s 451 of the Maharashtra
Municipal Corporations Act.

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4]The learned counsel further submits that the
belting method has been adopted while arriving at a
premium amount. The belting method for determining

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PIL 75/16

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valuation of the property can only be adopted if there is

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no road abutting to the said site. The site on which the
complex is to be erected has got roads from three sides.

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As such, the very methodology adopted is erroneous. The

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learned counsel submits that the Corporation is the

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trustee of the property. It is expected to act fairly

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and reasonably. The power vested in the public
authority has to be viewed as a trust coupled with a duty

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to be exercised in larger public and social interest.

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The public officers are accountable to its citizens for

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its action in larger public interest. To substantiate

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the said submission, the learned counsel relies on the

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judgment of the Apex Court in the following cases :-

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1] M.I.Builders Pvt.LTd. v. Radhey Shyam Sahu & others.

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(1999) 6 SCC 464.

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2] State of Assam & others v. Susrita Holdings Pvt.Ltd.

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(2014) 11 SCC 192.

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3] Lalaram & others v. Jaipur Development 2015 SCC Online SC 1263.

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4] Eureka Forbes Ltd. v. Allahabad Bank & others (2010) 6 SCC 193.

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5]The learned counsel further submits that by

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issuing such a tender, the Corporation would be a loser.

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PIL 75/16

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The major chunk would be given to the contractor and
small portion would be left with the Corporation. The
major premium amount from the shop-keepers would be taken
by the contractor. In fact, the Corporation should have
high share in the developed area. The learned counsel
relies on the judgment of the Apex Court in the following

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cases :-

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1] Aloke Kumar Ghosh & others v. Calcutta Municipal Corporation & others. (1997)SCC online Cal 226

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2] Ennore Port Ltd. v. M/s Chettinad Inter national Coal Terminal Pvt.Ltd.

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O.S.A.No.196 of 2011 decided by Madras High
Court.

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6]Miss.Talekar, learned counsel further submits

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that now it is possible for the Corporation to construct

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the said complex on its own as large amount has been

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received by the Municipal Corporation on account of
demonetization.

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7]Miss.Talekar, learned counsel for the petitioner
submits that the petitioner has got the valuation done

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from the Government approved valuer who has valued the

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writ property at Rs.9,26,00,000/-. This itself shows
that valuation made by the respondents is on much lower

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PIL 75/16

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side and would favour contractor.

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8]Mr.V.S.Bedre, learned counsel for the respondent

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- Corporation submits that the general body had already
taken a decision to get the Vegetable Market and
Commercial Complex constructed. A resolution to that
effect is already passed by the general body in its
meeting held on 10.8.2009. The said resolution was
passed pursuant to Sections 79-C and 79-D of the
Maharashtra Municipal Corporations Act wherein the

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premium was decided to be fixed at Rs.1,50,00,000/- and

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it was decided to give the same on FBT basis. Another
resolution of the general body was also passed on
5.7.2014 wherein it was decided to construct the Shopping

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Complex and Vegetable Market and to increase the premium
by Rs.50,00,000/-. According to the learned counsel, it
is not that the standing committee had unilaterally taken
a decision. The learned counsel further submits that the

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Nehru Vegetable Market in CTS No.208, Chitale Road,
Ahmednagar, was initially constructed in the year 1962.

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The said market was in a dilapidated condition. On
28.2.2000, the then Municipal Council had passed a
resolution to develop the said Vegetable Market and

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PIL 75/16

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Shopping Complex in the said CTS number. The notice of
eviction was issued to the occupants i.e. vegetable
sellers and the shop-keepers. The said action of the
Municipal Council was assailed by these vegetable sellers
and shop-keepers. The Municipal Corporation in Writ
Petition No.4611/2007 filed by shop-keepers and vegetable

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sellers had filed an affidavit and submitted that the
Corporation will follow the Resolution No.21 dated
15.5.2001 wherein it was resolved that new stalls will be
allotted on priority basis to the earlier stall holders.

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In view of the resolution dated 28.2.2000, the Municipal
Corporation had taken a policy decision for constructions
of Vegetable Market and Shopping Complex on FBT basis.

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The resolution of the general body dated 10.8.2009 is
also self-explanatory. Initially vide resolution No.74
dated 10.12.2010, the Municipal Corporation had decided

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to call for the tenders on FBT basis by fixing the

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premium price at Rs.4,50,00,000/-. In addition, the
contractor should pay Rs.50,00,000/- for beautification
of Chitale road. Though the tenders were floated, no
response was received by the Corporation.

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9]The learned counsel submits that for three

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PIL 75/16

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times, the tenders were floated, but no response was
received. Thereafter, on 5.7.2014, the Municipal

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Corporation passed Resolution No.2 and again decided to
develop the Vegetable Market and Shopping Complex on
privatization basis, but no further action was taken.
The Town Planner had calculated the valuation of the land

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as per ready reckoner and the value of the premises is
Rs.2,28,60,837/-. The said valuation is on the basis of
ready reckoner of 2015. On 1.4.2016, there was revision

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in the ready reckoner and, therefore, on 29.4.2016, the

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Town Planning Department has again valued the premises in

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the light of the revised ready reckoner rate and

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accordingly fixed the value of Rs.2,40,00,000/-. In the
e-tender, it is clearly stated that the Vegetable Market
shall mean part of the area on the ground floor earmarked
for the shopping center to be handed over to Ahmednagar
Municipal Corporation free of cost. The learned counsel

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submits that the plan would be sanctioned strictly in
accordance with the Development Control Rules and
building bye-laws. The rates are also fixed at which the

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same will be handed over to the vegetable sellers and
shop-keepers. The persons who have been evicted from the

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PIL 75/16

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said site would be given preference and accommodated as
per the affidavit filed in the earlier petition.

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10]The learned counsel submits that the interest of

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the public at large is involved. Stalling the

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construction process would result in further delay and increase in the cost of the construction inter-alia the cost at which the same is to be allotted to the vegetable

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sellers and the shop-keepers. The learned counsel
submits that this Court would not entertain the present
petition in its writ jurisdiction under Article 226 of

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the Constitution of India. The learned counsel relies on the judgment of the Apex Court in a case of Jagdish Mandal v. State of Orissa & others reported in (2007) 14 SCC 517 .

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11]We have considered the submissions canvassed by
the learned counsel appearing for the parties.

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12]The petitioner herein does not claim any
personal interest in the shopping complex to be
constructed nor is the beneficiary, has filed the present
petition in public interest.

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13]The bone of contention of the petitioner, it
appears, is that the premium is fixed at a low price. As

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PIL 75/16

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far as the aspect of fixation of premium is concerned,

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the valuation has been made by an expert i.e. Town

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Planner. The ready reckoner rate is even lower than the

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premium fixed by the Corporation. The Courts would not

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possess the expertise to dwell upon the aspect of
valuation. Suffice it to note here that the valuation

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fixed by the Corporation while inviting the tenders is
based on the certificate issued by the Town Planner who

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would be an expert in valuing the property. It also

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requires to be borne in mind that on four to five

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occasions earlier, the Corporation had floated the

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tenders inviting the offers for construction of the
Vegetable Market and Commercial Complex wherein the

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premium was fixed at Rs.4,00,00,000/-. Unfortunately, no

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response was received to the said tenders floated. The
methodology adopted while fixing the premium does not

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appear to be totally erroneous. The rates mentioned in

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the ready reckoner have been considered. Even the

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premium fixed is above the valuation of the property as

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per the ready reckoner. The methodology adopted in

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valuing the property and fixing the premium price is not
alien to the established norms. As such, it would not be

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PIL 75/16

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possible for this Court to enter into the realm of
valuation.

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14]Certainly, this Court would have its inherent
restrictions in exercising the powers of judicial review
in the policy decision taken by the Corporation. This
Court while considering challenge to the decision would

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be required to consider adherence to the legal principles

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and relevant norms in decision making process. This
Court would not sit over the decision taken by the
Corporation as an appellate authority while exercising
the powers of judicial review. The powers of judicial
review will have to be exercised with circumspection,
more particularly when the public interest is involved.

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It also requires to be considered that the persons who re
already evicted from the premises where the new Vegetable
Market and Commercial Complex is to be constructed, are

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to be provided accommodation. In the earlier writ

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petition, the affidavit is filed by the Corporation that
these persons would be given preference. These persons
are without any place of business for more than seven to
eight years.

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15]Certainly, as per Sections 79-C and 79-D of the

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PIL 75/16

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Maharashtra Municipal Corporations Act, the Commissioner
may lease, sell, let out on hire or otherwise convey any
property belonging to the Corporation with the sanction

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of the Corporation. The Corporation would mean the
decision taken by the Corporation in its general body. It
is not the case that the standing committee on its own

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for the first time has passed the impugned resolution.
The general body in the past also has passed the
resolution for developing the Vegetable Market and the
Shopping Complex. The said resolutions are already filed

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on record. It is pursuant to the said resolutions, the
standing committee has passed the resolution in February,
2016. It is nowhere brought on record that the general

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body does not agree with the said resolution or the
general body has taken some different stand. The
resolution of the standing committee is pursuant to the
resolution passed by the general body wherein decision
has been taken to construct the said Vegetable Market and
Shopping Complex.

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16]Earlier, for three to four times, the tenders
were issued, but unfortunately no response was received
pursuant to the said tenders. Further delay in the

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PIL 75/16

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construction would be detrimental to the interest of the
persons to whom the said Vegetable Market and the shops
are to be allotted. We cannot be oblivious of the fact

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that the persons to whom the said space has to be
allotted are yearning for the allotment of the said
space. Since the year 2010, the steps are being taken
for construction of this complex, however, no response
was being received. Ultimately, the instant tender has
been issued and it appears that response pursuant to the
said tender is received. If the general body does not

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agree with the resolution passed by the standing
committee, it is for the general body to take a decision.
However, it does not appear that such a decision was
taken by the general body and the instant resolution of

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the standing committee is not contrary to the decision
already taken by the general body earlier of developing
this Nehru Vegetable Market and Shopping Centre at
Chitale road.

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17]Considering the above, we are not inclined to
entertain the present Public Interest Litigation. The
PIL is accordingly disposed of.

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18]The learned counsel for the petitioner states

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PIL 75/16

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that the petition was bona-fide and the petitioner be allowed to withdraw the amount deposited pursuant to the directions of this Court. Mr.V.S. Bedre for the Corporation states that the petition was not bona-fide and the said amount be forfeited.

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19]Though we have refrained from entertaining the

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present petition, we do not find that the petition was
frivolous one or was filed with oblique motive, as such,
we are inclined to return the amount deposited by the
petitioner to the petitioner. The petitioner may
withdraw the amount deposited by him in this Court.

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ndk/ c15121616.doc

Sanjay Ratnakar Zinje v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sanjay Ratnakar Zinje v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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