Dismissed

Prashant Sanjay Chaudhary and Others v. the State of Maharashtra and Others

Bombay HC27 Aug 2019PIL/34/2019

Case brief

AI extract

What is this about?

In this PIL, the High Court of Bombay at Aurangabad dismissed the petition filed by residents challenging the construction of a girls' hostel on a previously open plot. The Court held the petition was a private grievance masquerading as PIL and was barred by delay and latches, noting no objection was raised for decades prior to the construction sanction.

What did the court decide?

The Public Interest Litigation No. 34.19 of 2019 was dismissed; Writ Petition No. 3813 of 2019 was disposed of merged.

Prashant Sanjay Chaudhary and Others Vs the… — Public Procurement and Tenders | Bombay HC (2019)

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(1)

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PIL 34.19.odt

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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PUBLIC INTEREST LITIGATION NO.3 4 OF 2019

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Prashant S/o Sanjay Choudhary age 32 yeArs occupation business R/o 72, Dixit Wadi, Jilha Peth, Jalgaon Tal. & Dist. Jalgaon Aadhar No. 2035 8405 1130 Mobile No. 7020281418

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Aadhar S/o Soma Mali, age 56 years occupation business R/o 71, Dixit Wadi, Jilha Peth, Jalgaon Tal. & Dist. Jalgaon. Aadhar No. 2854 9722 2020 Mobile No. 9420789993

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Suhas S/o Vasant Chaudhary age 48 years occupation service R/o 72, Dixit Wadi, Jilha Peth, Jalgaon Tal. & Dist. Jalgaon. Aadhar No. 9431 6752 8464 Mobile No. 9021405282/8459805525

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Tulshidas S/o Khandu Bari, age 57 years occupation business R/o R/o 71, Dixit Wadi, Jilha Peth, Jalgaon Tal. & Dist. Jalgaon. Aadhar No. 3939 3671 4260 Mobile No. 9422275863

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(2)

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PIL 34.19.odt

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Pravin S/o Ambadas Karanje age 60 years occupation business R/o 71, Dixit Wadi, Jilha Peth, Jalgaon Tal. & Dist. Jalgaon. Aadhar No. 51134445 5557 Mobile No. 9423951610

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Rajesh S/o Mulajibhai Chavan, age 50 years occup. Service R/o 76, Dixit Wadi, Jilha Peth, Jalgaon Tal. & Dist. Jalgaon. Aadhar No. 2689 9799 4728 Mobile No. 9423954501 Petitioners

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Versus

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The State of Maharashtra Through Secretary, Town Planning Department, Mantralaya, Mumbai.

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The Director, Directorate of Town Planning, Maharashtra State, Pune.

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The Divisional Commissioner (Directorate of Municipal Administration), Nashik Division, Nashik.

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The Collector, Jalgaon

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Jalgaon Municipal Corporation, Jalgaon, through the Commissioner

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The Maharashtra Mahila Udyam Trust through its Director, Bhaskar Lakshman Ahirrao, age 66 years occupation service

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(3)

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PIL 34.19.odt

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R/o 49, Shankarappa Nagar, Pimprala, Jalgaon Dist. Jalgaon.

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Respondents

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Mr. C.T. Jadhav, Advocate for the petitioners. Mr. V.D. Gunale, Advocate for respondent No.5. Mr. K.N. Lokhande, A.G.P. for the State. Mr. A.G. Talhar, Advocate for respondent No.6.

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ALONGWITH WRIT PETITION NO. 3813 OF 2019

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Maharashtra Mahhila Udyam Trust, Jalgaon, Through its Director Bhaskarrao Lakshaman Ahirrao, age 66 years occup. Service R/o 49, Shankarappa Nagar, Pimprala, Jalgaon Tal. & Dist. Jalgaon.

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Petitioner

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Versus

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The State of Maharashtra

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through its Secretary, Urban Development Department, Mantralaya, Mumbai – 32.

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The Director,

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The Directorate of Town Planning, Maharashtra State, Pune.

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The Divisional Commissioner, Municipal Administration, Nashik Division, Nashik.

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(4)

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PIL 34.19.odt

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The Jalgaon Municipal Corporation, Jalgaon at Jalgaon through its Commissioner.

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The Assistant Director of Town Planning, Jalgaon City Municipal Corporation, Jalgaon at Jalgaon Dist. Jalgaon Respondents

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Mr. A.G. Talhar, Advocate for the petitioner. Mr. K.N. Lokhande, A.G.P. for the State.

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CORAM : PRASANNA B. VARALE & AVINASH.G. GHAROTE, JJ. DATE : 27 August 2019.

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ORAL ORDER :-

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Heard learned Counsel for the petitioners and learned Counsel Mr. Talhar appearing for respondent No.6.

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By an order dated 1 March 2019 the Division Bench of this Court thought it ft to grant an opportunity to respondent No.6 to fle afdavit-in-reply on the submission that there is no element of public interest involved in the petition and it is only the personal interest of the petitioners.

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(5)

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PIL 34.19.odt

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The afdavit-in-reply is fled on behalf of respondent No.6.

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Mr. Jadhav, learned Counsel for the petitioners vehemently made an attempt to submit before this Court that the present petition involves an element of public interest and though respondent No.6 was granted permission to construct hostel on the open site, as respondent No.6 failed to comply with the conditions of the permission, the Municipal Council passed the orders whereby respondent No.6 was directed to remove the articles from the open place and thus the said order can be said as an order of cancellation of permission.

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Mr. Talhar, learned Counsel appearing for respondent No.6 per contra submitted that respondent No.6 is a Public Trust and the land allotted to respondent No.6 was for the public purpose, such as construction of Girls Hostel. It is also submitted by Mr. Talhar, the learned Counsel for respondent No.6 that all the necessary steps were taken by respondent No.6 for seeking conversion of the open plot to be utilized for residential purpose and order dated 18.08.1983 is passed by Urban Development Department converting the said plot to the residential one. It is further submitted by Mr.

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(6)

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PIL 34.19.odt

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Talhar, learned Counsel appearing for respondent No.6 that Jalgaon Municipal Council, after following due procedure, accorded sanction with minor modifcation. This was done by Municipal Council by submitting a proposal to the State Government. The copies of the order dated 18.08.1983 and the proposal dated 22.11.1983 are placed on record alongwith afdavit-in-reply. Learned Counsel Mr. Talhar further submitted that respondent No.6 also sought proper permission for construction of Girls Hostel from the Municipal Corporation, Jalgaon and such permission was granted on 06.07.2018. It is submitted that for some time Jalgaon City was having Municipal Council and subsequently Jalgaon Municipal Council converted into Jalgaon Municipal Corporation. It was also the submission of Mr. Talhar that for considerable length of time the open plot was being utilized by the petitioners and other residents as a parking place and now in view of the construction activities of Girls Hostel there is no place available to these residents to park their vehicles and it is the root cause for the initiation of this Public Interest Litigation, through which the petitioners have sought ventilation of their private grievance of non-availability of parking place.

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PIL 34.19.odt

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(7)

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Mr. Talhar, learned Counsel appearing for

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respondent No.6 further submitted that even taking into consideration the sequence of events, the frst order was passed by the Municipal Council, Jalgaon on 22.11.1983 whereby the Administrator of Jalgaon Municipal Council submitted a proposal for deletion of open space and conversion of the said plot for residential purpose and if any objection was to be raised, this was the point of objection for an aggrieved person. Then it is submitted by Mr. Talhar that much water has fowed after the year 1983 and as submitted by respondent No.6, respondent No.6 by approaching the Authorities of Municipal Council and Municipal Corporation, started activity of construction on open site for Girls Hostel and only for the personal grievance of group of persons, the clock, which is already set in motion, cannot be turned back so as to unsettle the position. In support of his submissions Mr.Talhar placed heavy reliance on the judgment of the Apex Court in the case of Printers (Mysor) Ltd.Vs. M.A. Rashid reported in 2004 (4) SCC 460 .

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The law on the point of entertaining Public Interest

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PIL 34.19.odt

Litigation is well settled and is refected from the case of State of Uttaranchal Vs Balwant Singh Choufal, (2010) 3 SCC 402 , which traces the development of Public Interest Litigation and also enunciates what is expected of a person, before he initiates the same.

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In the case of “ S.P. Anand Vs. H.D. Deve Gowda and others”, 1996 (6) SCC 374, on the point of locus standi, the Apex Court has observed as under :

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“Before we part, we cannot help mentioning that on issues of constitutional laws, litigants who can lay no claim to have expert knowledge in that feld should refrain from fling petitions, which if we may say so, are often drafted in a casual and cavalier fashion giving an extempore appearance not having had even a second look. This is the impression that one gets on reading the present petition. It is of utmost importance that those who invoke this Court's jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the court that he does not rush to court without undertaking a research, even if he is qualifed or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are fled on half-baked information without proper research or by persons who are not qualifed and competent to raise such

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(9)

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PIL 34.19.odt

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issues as the rejection of such a petition may afect third party rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is satisfed that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations. So also the court must be careful to ensure that the process of the Court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by flling a series of petitions refusing to accept the Court's earlier decisions as concluding the point. ”.

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On the point of bonafdes the Apex Court, in the case of “Ashok Kumar Pandey Vs. State of West Bengal”, (2004) 3 SCC 349 , held that,

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“When there is material to show that a petition styled as a public interest litigation is nothing but a camoufage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important feld in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend "paise income litigation". If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their

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(10)

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PIL 34.19.odt

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personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fde and having sufcient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private proft or political motive or any oblique consideration. These aspects were highlighted by this Court in The Janta Dal case (supra) and Kazi Lhendup Dorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116). A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective”.

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In the case of “ The Janta Dal Vs. H.S. Choudhary”, 1992 (4) SCC 305 , on the point of locus standi as well as on the point of genuineness of cause and legal right, the Apex Court observed as follows :

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“(In Black's Law Dictionary (Sixth Edition), 'public interest' is defned as follow”:

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Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are afected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be afected by the matters in question. Interest shared by citizens generally in afairs of local, state or national government....

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In Fertilizer Co-option Kamgar Union v. Union of India the terminology "public interest litigation" was used. In that decision, Krishna Iyer, J.

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(11)

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PIL 34.19.odt

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delivering his opinion for Bhagwati, J. (as the learned Chief Justice then was) and himself used the expression 'epistolary' jurisdiction. However, this rule on gaining momentum day by day, burgeoned more and more expanding its branches in the cosmos of PIL and took its root frmly in the Indian Judiciary and fully blossomed with fragrant smell in S.P. Gupta v. Union of India . Though it is imperative to lay down clear guidelines and propositions; and outline the correct parameters for entertaining a Public Interest Litigation - particularly on the issue of locus standi yet no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved. There is also one view that such adumbration is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances.

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Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specifc remedy sought for has to be primarily ascertained at the threshold. )

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Faced with the above observations, Mr. Jadhav was called upon to satisfy us as to the locus of the petitioner and the public interest involved, specifcally so, in view of the position as stated by the respondent No.6 – Trust in its afdavit-in-reply dated 13 March 2019. He submitted that since the plot of land was unoccupied for quite some time, the residents of the locality had started using the same for parking their vehicles and holding functions and thus had

PIL 34.19.odt

(12)

locus.

This cannot be accepted in light of the admitted position on record, that the user of the land stood changed from open space to residential by the State according sanction to the minor modifcation under Section 37 of the M.R.T.P. Act 1966 which is refected from the letter dated 02.12.1983 at Exh.R-4 and 07.12.1983 at Exh.R-5, which plot later on came to be allotted to respondent No.2 Trust. There has been no objection from any quarters whatsoever throughout this period from 1983 to 2018, a period of nearly 35 years, which itself speaks about the delay and latches. It is only when the Municipal Corporation accorded sanction for construction of the Girls Hostel on the said plot of land on 06.07.2018, that objections were raised for the frst time on 20.07.2017 and thereafter.

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Faced with the above situation, learned Counsel for the petitioner was again called upon to explain the delay and the so called public cause/interest which the petitioners claimed to espouse. Mr. Jadhav, learned Counsel for the petitioners, by inviting our attention to certain documents

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(13)

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PIL 34.19.odt

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namely a communication dated 02.02.2016 placed on record at Exhibit-P, page 86, made an attempt to submit that by the said letter respondent No.6-Trust was called upon to submit certain documents and then there was also a public notice in daily newspaper “Divya Marathi” dated 02.03.2016.

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The public notice dated 02.03.2016 is only reiteration of the earlier notice calling upon respondent No.6 to submit certain documents. Then it was the submission of Mr.Jadhav that by communication dated 07.06.2017 respondent No.6 is informed about the order and this order was in the nature of cancellation of permission.

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On perusal of the communication dated 07.06.2017, it reveals that it refers to the communication dated 08.03.2017 issued from the ofce of Divisional Commissioner. In this communication it is stated that hearing was scheduled before the Divisional Commissioner on 27.02.2017 and Divisional Commissioner passed order and therein reference is made to the communication dated 08.03.2017. It was the insistence of Mr. Jadhav, learned Counsel for the petitioners that the communication dated

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(14)

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PIL 34.19.odt

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08.03.2017 was the order whereby permission granted in favour of respondent No.6 is cancelled. Now this communication is also placed on record at Exhibit-S. On repeated reading of this communication we are unable to accept the submission of Mr. Jadhav that this communication is an order of cancellation of permission granted in favour of respondent No.6. A reading of this communication clearly shows that hearing was scheduled on 27.02.2017. Respondent No.6 had not attended that hearing. The concluding part of the communication clearly reads to the efect that in the chain of scenario namely conversion of Jalgaon Municipal Council in Jalgaon Municipal Corporation and subject-matter plot or site being a property of Corporation, the Divisional Commissioner would not be in a position to pass any order in the matter and it is for the Commissioner of Municipal Corporation,Jalgaon to pass appropriate orders or to take proper decision. If this communication cannot be read as an order of cancellation, there is hardly material before this Court to entertain the petition and we have no hesitation to state that the present petition sufers from delay and latches and also there is no convincing merits in this matter, requiring this

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PIL 34.19.odt

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Court to entertain the Public Interest Litigation. Thus, the petition fails and accordingly the same is dismissed.

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In view of the dismissal of the Public Interest Litigation, no order is required to be passed in Writ Petition No.3813 of 2019. Accordingly, Writ Petition No. 3813 of 2019 is also disposed of.

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( AVINASH.G. GHAROTE ) ( PRASANNA B. VARALE ) JUDGE JUDGE

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vdd

Prashant Sanjay Chaudhary and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Prashant Sanjay Chaudhary and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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