Allowed

Shri Gautam Baburao Maske and Another v. the State of Maharashtra and Others

Bombay HC20 Mar 2017PIL/139/2016

Case brief

AI extract

What is this about?

The Court quashed an impugned communication directing the transfer of funds and change of implementing agency for road/drainage projects from Beed Municipal Council to the Public Works Department, holding it arbitrary, jurisdictionless, and motivated by political pressure.

What did the court decide?

Impugned communication dated 11.4.2016 quashed; Collector directed to release first installment to Municipal Council; Respondents allowed to complete project works.

Shri Gautam Baburao Maske and Another Vs the… — Pension and Retirement Benefits | Bombay HC (2017)

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PIL No.139/2016

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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PUBLIC INTEREST LITIGATION NO.139 OF 2016

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1.Shri. Gautam Baburao Maske,
Age:59 years, Occu: Retd.,
R/o. vidyanagar (W),
House No. 1-3-325, Beed,
District Beed
PAN No.: AJDPM0251B
Aadhar No.689030260498
Email: [email protected]

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2.Shri. Vishnu Shamrao Waghmare,
Age: 55 years, Occu.:Social Work,
R/o. Sahyog Nagar (E)
S. Indira Niwas, D.P. Road,
Beed – 431 122
PAN: AAZP4973D

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- PETITIONERS

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VERSUS

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1.The State of Maharashtra
Through its Chief Secretary,
And
Under Secretary
Urban Development Department,
Mantralaya, Mumbai – 32,

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2. The Collector, Beed At Collector Office, Beed,

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3. Beed Municipal Council Through its President And Chief Executive Officer, Municipal Council, Beed, District Beed

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- RESPONDENTS

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*****

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Mr. Tejesh Dande with Mr. Prasanna Dande i/b. Tejesh
Dande & Associates, Advocates for Petitioners.
Mrs. A.V. Gondalekar, AGP for Respondent Nos.1 & 2;
Mr. G.K. Thigale (Naik), Advocate for Respondent No.3

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2 PIL No.139/2016

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CORAM: R.M.BORDE &
 P.R.BORA,JJ.

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DATE OF RESERVING ORDER: 16th MARCH,2017 DATE OF PRONOUNCING ORDER: 20th MARCH,2017

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COURT'S ORDER (PER:-P.R.BORA,J.)

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1)Two citizens from Beed have filed the
present Public Interest Litigation impugning the
communication dated 11th April, 2016, whereby the
Under Secretary to the State of Maharashtra has
directed the Collector, Beed to transfer the funds
allocated to Municipal Council, Beed for implementing
the construction work of roads and drainages in the
extended areas of Municipal Council, Beed, under the
Scheme sponsored in that regard by the State
Government, to the Public Works Department and to get
the said works executed from the said Department.

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2)This court on 26th October, 2016 has passed
an order restraining the Collector, Beed from parting
with the funds, which he has received. That order
continues to operate even today.

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3)The State Government, vide its Resolution
dated 27thJune, 2012 had resolved to provide

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3 PIL No.139/2016

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financial assistance to the Municipal Corporations

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and Municipal Councils, of which the territorial
limits are extended, to enable them to carry out the
public utility works like construction of road,
drainages etc. in the said extended areas. As
provided in the said Government Resolution, for
carrying out such works, the Municipal Councils are
required to make provision to the extent of 10% of
the estimated cost of the works to be carried out, by
way of their own contribution and the remaining 90%
amount of the estimated cost is to be shared by the
State Government by making the grants available to
that extent to the concerned Municipal Councils.

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4)In order to avail the benefit of the
aforesaid scheme, Municipal Council, Beed (Respondent
no.3) prepared a proposal for construction of roads
and drainages in its extended areas. As per the said
proposal, at 12 different places in the extended
areas, hot mix and cement concrete roads so also
drainages were proposed to be constructed. The
estimated cost of the works so proposed was
Rs.30,09,08,666/-. Respondent no.3 in its General

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Body meeting held on 6th May, 2013 vide Resolution

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4 PIL No.139/2016

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No.940 resolved to deposit with the Government 10%
own contribution for the aforesaid works. The
Collector, Beed, (Respondent no.2) vide his order
dated 22ndOctober, 2013 granted administrative
sanction/approval to the proposal so prepared and
submitted by respondent no.3. The said proposal was,
then forwarded to the State Government seeking
financial assistance to the extent of 90% of the
estimated cost of the proposed works in view of the
Government Resolution dated 27th June, 2012. The
proposal was favourably considered by the State
Government and vide Resolution dated 18th March, 2016,
the State Government released the first installment
amounting to Rs.13,54,08,900/- in favour of the
Municipal Council, Beed.

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5)As has been submitted by the learned Counsel
appearing for the petitioners and the learned counsel
appearingforRespondentNo.3,afterthe

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administrative sanction/approval was granted to the
proposed works, the Municipal Council Beed carried

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out the tender process for allotment of the said
works and in turn accepted the tender of the lowest
bidder and accordingly the work order was issued to

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5 PIL No.139/2016

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the said contractor on 14th August, 2014. As has been
further submitted on behalf of respondent no.3 the
project works have been completed to the extent of
60-70%. In the circumstances, request was made by
respondent no.3 to respondent no.2 to release the
grants of Rs.13,54,08,900/- received towards first
installment from the State Government. However, in
the meanwhile the impugned communication came to be
issued.

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6)The petitioners have alleged that under the
political pressure of M.L.A. Shri Vinayak Mete, the
StateGovernmenthasissuedtheimpugned
communication. It is the grievance of the

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petitioners that the decision taken by the State
Government is against the interest of the Municipal
Council Beed and consequently against the interest of
the residents of Beed. According to the petitioners,
transfer of the project works in the mid-way from
respondent no.3 to Public Works Department, would be
extremely non-practicable and difficult. It is
further contended that respondent no.3 has already

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alloted the work by carrying out the tender process
and the same is in progress. In the circumstances,

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6 PIL No.139/2016

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change in implementing agency may badly hamper the
said work. It is also contended that the impugned
decision may result in creating serious problems for
respondent no.3 which may ultimately result in
delaying completion of the project works. It is
further contended that the extended area of
respondent no. 3 is lacking the basic infrastructure
i.e. roads and drainages. Delay in completing the

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said works would ultimately cause great hardship to
the residents of the respective areas. Impugned
communication is, therefore, sought to be quashed.

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7)One Shri Satish Krishnarao Shivane working
as District Administrative Officer, Urban Development
branch, Collector office, Beed filed affidavit in
reply on behalf of Respondent No.2, i.e. Collector,
Beed, contending therein that the Collector, Beed,
has not yet transfered the funds to Public Works
Department in view of the interim order passed by
this court. Except providing the aforesaid
information, Collector, Beed, has not given any reply
on merits, to the contentions raised in the petition.

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8)Smt. Rita Prabhakar Metrewar, working as

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7 PIL No.139/2016

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Regional Deputy Director, Municipal Administration,
Aurangabad, has filed an affidavit in reply on behalf
of Respondent no.1, opposing the petition. It is
contended therein that it is well within the
competence of the State Government to decide the
agency for carrying out the work from the State
funds. It has also been contended that the funds
were never transferred to Beed Municipal Council and
were never part of the Municipal funds. It is
further contended that vide letter dated 11th April,
2016, the State Government has waived the condition
of 10% share of Beed Municipal Council and as such,
no additional financial burden is cast on Beed
Municipal Council. It is further contended that the
State Government has issued the letter dated
11.4.2016 to transfer the funds to the Public Works
Department in public interest. It is further
contended that since the condition of 10%
contribution by Municipal Council, Beed is waived,
100% funding is now from the State Government and the
Government has inherent right to decide the
implementing agency for carrying out the works fully
funded by it. For the aforesaid reason, the petition
is sought to be dismissed.

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8 PIL No.139/2016

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9)From the contents of the Affidavits in reply
tendered on behalf of respondent Nos. 1 and 2, it is
quite clear that the said respondents have not denied
or disputed the fact that the proposal submitted by
the Beed Municipal Council for carrying out the work
of constructing hot mix and cement roads as well as
drainages in the extended Municipal area, was under
the scheme introduced by the State Government in that
regard vide Government Resolution dated 27th June,
2012 and that the said proposal has received the
administrative approval. It has also not been
disputed that the Municipal Council has deposited the
amount of its own contribution to the extent of 10%

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of the estimated cost of the project works. It has
also not been disputed that vide Government
Resolution dated 18th March, 2016 the State Government
hasreleasedthefirstinstallmentof

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Rs.13,54,08,900/- to the Municipal Council Beed in

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pursuance of the proposal so forwarded by the
Municipal Council having estimated cost of
Rs.30,09,08,666/-. The averment in the petition to

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the effect that 60-70% of the project work has
already been completed, has also not been
controverted.

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10)The legality and the validity of the
communication dated 11th April, 2016 needs to be
examined in the background of the facts as aforesaid.

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11)From the material on record, it is

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undisputed that the funds which are directed to be
transferred to Public Works Department vide the
impugned communication dated 11.4.2016, are received
to Beed Municipal Council vide Government Resolution

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dated 18th March, 2016 under the Scheme introduced by
the State Government vide Government Resolution dated

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27th June, 2012. Clause 2(ii)(b) of the Government

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Resolution dated 27.6.2012 provides that for
receiving financial assistance from the State
Government under the said Government Resolution, it
is mandatory for the Municipal Council to share 10%
of the estimated cost of the works to be carried out
under the said Scheme, by way of 'own contribution'
of the said Municipal Council. Government Resolution
dated 18.3.2016, whereby the State Government has
sanctioned the first installment to Respondent No.3,
casts the responsibility upon the District Collector,
Beed to verify that the amount of own contribution is

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paid by the Beed Municipal Council before

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disbursement of the said amount to the said Municipal
Council. The record shows that Respondent No.3 has
deposited the amount of own contribution and
Collector, Beed has confirmed the said fact in his
letter dated 10.5.2016 addressed to the Deputy
Secretary, Urban Development Department .

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12)Further, as stipulated in clause (iv) of the
Government Resolution dated 18th March, 2016,
Municipal Council, Beed is the implementing agency
for execution of the project works.

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13)The State Government, in its affidavit in
reply, though has taken a stand that it has waived
the condition of deposit of own contribution by
Municipal Council, Beed, and now, 100% project cost
will be borne by the State Government, which vests it
with an inherent right to decide the implementing
agency to execute project works, no such evidence or
document is placed on record by the respondents. The
communication dated 11.4.2016 does not contain any
such averment that the Government has waived the
condition of 10% share of the Beed Municipal Council.
As noted by us herein above, the Scheme introduced by

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11 PIL No.139/2016

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the State Government, vide the Resolution dated 27th
June, 2012 mandatarily provides for 10% share as own
contribution by the concerned Municipal Council,
seeking financial assistance from the State
Government under the said Government Resolution. The
provision so made in the Government Resolution cannot
be nullified by the communication under the signature

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of Under Secretary to the Government. In the
Government Resolution dated 27.6.2012, we did not

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find any provision permitting the waiver of the 10%
contribution by the Municipal Council. It is also

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not disclosed by the respondents as to on what basis
and for what reasons, the exemption has been granted

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to Municipal Council, Beed from paying its own
contribution, if at all the same would have been
granted. Significantly, Collector, Beed has not
taken any such plea in his affidavit in reply. In
absence of any evidence, the plea as aforesaid, taken
in affidavit in reply by the State, has to be
rejected.

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14)In the affidavit in reply filed on behalf of
respondent No.1 it has also been contended that the
funds were never transferred to the Beed Municipal

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Council and were never part of the Municipal funds.
The contention so raised is apparently unacceptable.
As earlier noted by us, clause 3 of the Government
Resolution dated 18th March, 2016 whereby the first
installment was released in favour of Municipal
Council, Beed specifies that the released amount
shall be kept in an independent account of the
Municipal Council. In view of the specific clause in
the aforesaid resolution it is not open for the State
Government now to say that the amount was not
transferred to the Beed Municipal Council and was
never part of the Municipal funds. The amount which
was directed to be credited to the independent
account in the name of Municipal Council becomes the
part and parcel of the Municipal Fund.

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15)Relying on Government Resolution dated
16.01.2016 it is further contended in the affidavit

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in reply of respondent - 1 that the State Government
has inherent right to decide the implementing agency
for the works fully funded by it and hence no fault
can be found with the impugned communication dated
11.04.2016. This contention is equally fallacious.
Firstly, for the reason that Government Resolution

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13 PIL No.139/2016

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dated 16.01.2016 relates to a different scheme and

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cannot be applied in the present matter. In So far
as right of the State Government to determine or
select implementing agency is concerned, vide
Government Resolution dated 18.03.2016 and more
particularly clause 4 thereof, the State Government
has already exercised that power by selecting and
nominating Municipal Council, Beed as the
implementing agency for execution of the project
works.

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16)Communication dated 11.04.2016, by an Under
Secretary cannot annul the provision so made in the
Government Resolution dated 18.3.2016, whereby
Municipal Council, Beed has been prescribed as the
implementing agency for execution of the project
works. Moreover, there must have been some
justifiable reason for changing the earlier decision
which was taken on consideration of the relevant
Government Resolution's, Circulars and other related
material.

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17)The communication dated 11.4.2016 does not
disclose any reason much less any justifiable reason

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14 PIL No.139/2016

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for transferring the funds to the Public works
Department, which has been allocated to Municipal
Council, Beed. In the affidavits in reply filed by
Respondent Nos. 1 and 2 also, there is no explanation
as to for what reasons the project works are directed
to be executed through the Public Works Department
and the funds are directed to be transferred to the
said department, when vide Government Resolution
dated 18th March, 2016, Municipal Council, Beed was
already named as the implementing agency for
execution of the said works and the first installment
was also received to District Collector, Beed for
allocating the same to Municipal council Beed.

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18)In the impugned communication there is
reference of Government Resolution dated 18-03-2016.
We have carefully perused the aforesaid Government
Resolution. There is no provision in the aforesaid
Government Resolution which would empower the State
Government to change the Implementing Agency. The
learned A.G.P appearing for Respondent Nos. 1 and 2
has also not brought to our notice any other
Government Resolution which empowers the State
Government to change the Implementing Agency for

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15 PIL No.139/2016

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execution of the works undertaken under the scheme
introduced vide Government Resolution dated 27th of
June, 2012. The impugned communication is therefore
without jurisdiction and hence clearly un-
sustainable.

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19)In the instant matter, as has been alleged
by the petitioners the only reason for directing
change in Implementing Agency appears to be the
political pressure brought on the Government by
M.L.A. Shri Vinayak Mete by sending a letter dated 6th
of April, 2016 to the Hon'ble Chief Minister
requesting him to transfer the fund allocated to Beed
Municipal Council to the Public Works Department and
to get the project works executed through the said
department. Even in his said letter M.L.A. Shri
Mete, has nowhere alleged that the Municipal Council,
Beed is incapable of carrying out the project works

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or has committed some such irregularities in
execution of the project works or that, has violated
the terms and conditions imposed on it warranting
withdrawal of the execution of the project works from
it.

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16 PIL No.139/2016

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20)When no such ground was made out, in fact,

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the State Government should not have acceded to the

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request so made by Shri Mete. Moreover, before
issuing the impugned communication, the State ought
to have considered that in pursuance of the
administrative approval accorded to the project
works, Respondent No.3 had already completed the
tender process and had issued the work order to the
lowest bidder on 14th August, 2014 and 60 to 70% of
the project work was already completed. Neither in
the impugned communication nor in the affidavits in

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reply filed by the respondents there is any
explanation as to how the payment would be made to
the contractors of the works done by them till date
and whether the same contractors will be continued
further or otherwise. It would also be quite
difficult to determine as to what part of work was
implemented by the Municipal Council and what
remaining work is to be completed by the Public Works
Department. We reiterate that the fact stated by the
petitioners on affidavit, that the contractor to whom

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the work has been allotted by Respondent No.3 has
completed 60 to 70% of the project work, has not been
denied or disputed by the respondents. We fail to

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17 PIL No.139/2016

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understand as to what made the State Government to
change the implementing agency when 60 to 70% work
has already been completed.

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21)In the affidavit in reply filed by
Respondent No.2 though it is stated that the
decision to change the implementing agency has been
taken in public interest, there is no further
explanation what public interest is being served by
changing the implementing agency. On the contrary,
from the facts which have come on record, we have no
manner of doubt in holding that the impugned decision
is totally adverse to the interest of the public at

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large. It is apparent that the impugned

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communication is being made in highly arbitrary
manner without taking into account the consequence of

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the said decision. There is substance in the
contention raised by the petitioners that if the

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impugned communication is sustained, the Municipal
Council is likely to face number of litigations which

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may ultimately increase the financial burden on the
said Municipal Council and in turn on the tax-payers
of the said Municipal council. Moreover, because of
change in the implementing agency, there is every

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18 PIL No.139/2016

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possibility that the project work would be delayed,
which may result in increasing the project cost. The
works which have been undertaken are admittedly of
roads and drainages. Delay in completion of these
works ultimately would result in causing hardship to
the residents of the said area. Thus, viewed from
any angle, it is difficult to sustain the impugned
communication.

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22)As noted earlier, there is no provision in
the Government Resolution dated 18th March, 2016 which
would empower the State Government to change the
implementing agency. For a moment, even if it is
assumed that the State possesses such right, the same
cannot be arbitrarily exercised.Ashasbeen

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observed by the Hon'ble Apex court in State of Punjab Vs. Brijeshwar Singh Chahal – (2016) 6 SCC 1 , the Government and the public bodies are trustees of the powers vested in them. Discharge of the trust reposed

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in them in the best possible manner is their primary
duty. These powers are to be exercised by the State

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and the State instrumentalities in a fair,
reasonable, non-discriminatory and objective manner.

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The duty to act in a fair, reasonable, non-

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19 PIL No.139/2016

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discriminatory and objective manner, is the facet of

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the rule of law in the constitutional democracy like
ours. As consistently held by Hon'ble Apex court an
action that is arbitrary has no place in a polity
governed by Rule of law apart from being offensive to
the equality clause guaranteed by Article 14 of the
Constitution of India. The Government and public
bodies are free to choose the implementing agency in
executing the works funded by them but any such
selection or cancellation must demonstrate that it
was unaffected by any extraneous consideration. Any
decision taken in arbitrary fashion, without any
transparent method or for political considerations,
will be amenable to judicial review and liable to be
quashed and set aside.

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23)In the instant matter, we have no hesitation
in holding that the impugned communication is
arbitrary,malafide,basedonirrelevant
considerations, without jurisdiction and for
political consideration. Such decision cannot be
sustained and deserves to be quashed and set aside.

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24)In the foregoing circumstances and for the

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20 PIL No.139/2016

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reasons stated above, following order is passed, -

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ORDER

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i) The impugned communication dated

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11.4.2016 is quashed and set aside;

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ii)The Collector, Beed (Respondent

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No.2) is directed to forthwith release the
amount of first installment received under
the Government Resolution dated 18th March,

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2016, to Municipal Council, Beed (Respondent
No.3) in terms of the said Government
Resolution;

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iii)Respondent Nos. 1 and 2 shall
allow the Municipal Council, Beed to
complete the project works in terms of the
Government Resolution dated 18th March, 2016

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25)The Public Interest Litigation is allowed in

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the aforesaid terms.

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bdv/

Shri Gautam Baburao Maske and Another v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Shri Gautam Baburao Maske and Another 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

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