ASN 1 PIL-79.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. 79 OF 2005 WITH CIVIL APPLICATION NO.49 OF 2005 WITH CIVIL APPLICATION NO.42 OF 2008 IN PUBLIC INTEREST LITIGATION NO.79 OF 2005 Laxman G. Padhye and anr. ..Petitioners. Vs. The Commissioner, Kalyan Dombivli Municipal Corporation and ors. ..Respondents. Mr. Laxman Padhye-Petitioner in person present. Mr.A.S.Rao for Respsondent Nos.1 and 2. Mr.R.P.Behere, A.G.P. for Respondent No.6. Mr.G.S.Godbole with Mr.S.S.Kanetkar for Respondent Nos.3 to 5. Mr. Laxman Padhye-Applicant in person in CA CORAM : MOHIT S. SHAH, C.J. & S.J. KATHAWALLA, J. THURSDAY, DECEMBER 02, 2010. PC : This petition purports to be a public interest litigation in which petitioner has challenged the purported change in reservation of a plot from “Municipal purpose/Stores” to “Vegetable Market” and the agreement between the Kalyan Dombivli Municipal Corporation and the Respondent Nos. 3 to 6 under which the Corporation permitted respondent Nos. 3 to 5 to construct a market on land belonging to ASN 2 PIL-79.sxw respondent Nos .3 and 4 and to hand over 25% of the built up area of the said market to the Corporation. 2 The planning authority under section 26(1) of the Maharashtra Regional and Town Planning Act, 1966, published the draft development plan and the plot in question was initially marked at Site No.52 and was earmarked for “Municipal purpose and Stores”. Later on it came to be shown as Site No.101 and came to be earmarked as “Vegetable Market” in the revised draft development plan published on 5th December, 1996 in the Government Gazette and wide publicity was given to the same by publication in the local newspapers as well as in vernacular language newspapers inviting objections and suggestions within a period of 60 days. The said period for giving objections and suggestions was also extended, but neither the petitioners nor any other person filed any objection or suggestion against the land in question earmarked as “Vegetable Market”. The general notice was published in the newspapers on 4th November,1999 and was also published in Government Gazette vide notification dated 4th November, 1999 . The petitioners did not challenge the said development plan at any stage. 3 The legal formalities regarding the finalization of the development plan were thereafter completed and in view of certain objections raised by the State Government regarding certain procedural formalities about finalization of the development plan under Section 30 of the M.R.T.P. Act, which had nothing to do with the purpose for which the land in question was earmarked, the fresh regional development plan under Section 30 of the M.R.T.P. Act was submitted to the State ASN 3 PIL-79.sxw Government on 5th January, 2005 through the Commissioner, Konkan Division. 4 The plot in question came to be earmarked as “Vegetable Market” keeping in mind the nuisance caused by the vegetable vendors who were squatting all over the area surrounding the railway station premises, thereby creating traffic problems for the public at large. Thus there was a need to give them a place for vending vegetables. However, the Corporation did not have funds to construct the vegetable market. The Corporation therefore, considered the Government policy indicated in the Government Resolution dated 7th April, 1994 issued under Section 154 of the M.R.T.P. Act which provides that where the Corporation is unable to develop a vegetable market, the Corporation may allow the owner of the land to develop the land provided 20% of the earmarked plot is surrendered to the Corporation free of costs after constructing necessary market therein. The Corporation invoked the above policy and entered into an agreement with respondent No.5 under which respondent No.5 agreed to construct a vegetable market and surrender 25% of the built up area free of costs to the Corporation and also area for car parking. The building permission was granted on 9th December, 2004 (Exhibit-C annexed to the petition). An agreement was entered into between the Corporation and respondent No5-partnership firm of which respondent Nos.3 and 4 are partners. On the basis of the above building permission, respondent Nos. 3 to 5 proceeded with the construction. The petitioners herein challenged the aforesaid arrangement and permission granted by the respondent Municipal Corporation to respondent Nos. 3 to 5 for construction of the said market. ASN 4 PIL-79.sxw 5 The petitioner No.1 is an Architect and petitioner No.2 is an Advocate by profession and during the pendency of the petition, he has passed away. The petition has been argued by petitioner No.1 appearing as party in person. 6 In the memo of the petition, the petitioners have raised the contention which is also pressed at the time of hearing that the land in question was earmarked for “Municipal purpose and Stores” but it has been illegally converted for the purpose of “Vegetable Market”.It is further submitted that the construction put up by respondent Nos. 3 to 5 cannot be even considered as vegetable market. It is also contended in the petition that the Corporation ought to have used the plot for parking facility instead of a vegetable market. It is further submitted that the construction is in contravention of the building bye laws. It is also contended that the respondents have committed breach of the orders of this Court requiring the respondents to maintain Status quo. 7 The petition is opposed by the respondent-Municipal Corporation and an affidavit in reply dated 13th July, 2008 has been filed by the Town Planner. An affidavit in reply dated 19th July, 2005 is also filed on behalf of respondent Nos. 3 to 5. It is submitted on behalf of the Corporation that considering the needs and the requirement as well as other aspects of the matter, the planning authority published the revised draft development plan and the plot in question which was earlier marked as Site No.52 was earmarked for “Municipal Purpose and Stores” which is a “genus term”, in the revised development plan of ASN 5 PIL-79.sxw 1996, came to be shown as Site No.101 and came to be earmarked as “Vegetable Market” i. e. the species of genus term “Municipal purpose and Stores”. It is submitted that the said decision was taken keeping in mind the absolute and dire need to stop the inexplicable nuisance caused to the public at large by the vegetable vendors who were squatting all over surrounding the railway station premises. It is submitted that though the petitioners who are elite citizens, could have raised objections and or given their suggestions in the year 1996 when the notice inviting objections and suggestions were widely published, the petitioners did not come forward with any objections or suggestions but after a period of nine years have raised objections which casts a shadow of doubt on their motives. It is pointed out that when the petition was moved, no ad interim injunction was granted and the entire building has been constructed but thereafter by an order dated 10th December, 2007, this Court directed the respondents to maintain Status quo. It is submitted that the respondents have committed no illegality and the petition deserves to be dismissed and the interim injunction vacated. 8 Having heard the petitioner party in person, the learned counsel for the Municipal Corporation and the learned counsel for respondent Nos. 3 to 5, coming to the first contention of the petitioners that the land which was earmarked for “Municipal purpose and Stores” was illegally converted for the purpose of “Vegetable Market”, we find substance in the contention of the Corporation that it was necessary to change earmarking the plot from “Municipal purpose and Stores” to “Vegetable Market” due to the fact that the vendors vending vegetables ASN 6 PIL-79.sxw around the railway station were creating traffic problems. Therefore, the decision of the Corporation to get a vegetable market constructed on the land in question under the policy framed by the Government as per resolution dated 7th April,1994 cannot be said to be illegal or arbitrary. Though the petitioners had all the opportunity to raise objections and make suggestions in the year 1996 they chose not to do so but nine years thereafter have raised an objection by way of this petition which cannot be allowed. In any event, under the Government Resolution, it was open to the Municipal Corporation to develop the vegetable market by allowing the owner of the land to develop the land by providing 20% built up area free of costs to the Corporation after completing necessary market therein. The facts of the present case however, indicate that Corporation required respondent Nos. 3 to 5 to construct a building and surrender 25% built up area of the said building free of cost to the Corporation and also for parking vehicles. This kind of public private partnership has been accepted to be in consonance with the constitutional scheme in G.B. Mahajan and others Vs. Jalgaon Municipal Council and others (1991) 3 Supreme Court Cases 91 wherein the Apex Court considered a similar case where Jalgaon Municipal Council was having a plot of land and the Municipal Council contemplated a project for erecting a commercial complex. The project scheme contemplated that a “developer” would execute the entire project at his own cost and would make various allotments to the shopkeepers to whom the Municipal Council had given assurances of alternative accommodation at fixed rates of premia and also provide ground plus 17 floors of the administrative building free of cost to the municipality. The appellants before the Apex Court being residents of Jalgaon questioned the said ASN 7 PIL-79.sxw project and the Apex Court held that though the scheme of financing the project may be unconventional, the same was not arbitrary. A project otherwise legal, does not become any the less permissible by reason alone that the local authority, instead of executing the project itself, had entered into an agreement with a developer for its financing and execution. The question is not whether it is unconventional by the standard of the extant practices, but whether there was something in the law rendering it impermissible. The Apex Court rejected the contention that the project was of an unconventional nature and held that Government or its instrumentalities have policy options to adopt any method or technique for management of the project provided the same is within the constitutional and legal limits. The reasoning of the Apex Court squarely applies to the facts of the present case. The Corporation has no funds to construct a vegetable market. In consonance with the policy of the State Government, the Corporation therefore, entrusted the project to the owners of the land. Respondent Nos. 3 and 4 who in turn entrusted the execution of the project to respondent No.5-developer. 9. The petitioner has to raise other contentions about alleged violation of the building bye laws etc. but no such contentions are raised in the petition and therefore, we have not permitted him to canvass the same before us at the hearing. It is unfortunate that the building which was constructed and which was completed before December, 2007 is lying vacant and cannot be used for the purpose for which it was constructed in view of the order of the Status quo being in operation for the last 3 years on account of the pendency of this petition. ASN 8 PIL-79.sxw 10 In the circumstances of the case, we are of the view that no element of public interest is involved in the petition and the petition cannot be said to be for the benefit of the public. The petition is therefore, dismissed. Ad interim/interim order of Status quo passed on 10th December, 2007 is hereby vacated. 11 In view of the above order, Civil Application Nos. 49 of 2005 and 42 of 2005 do not survive and the said applications are accordingly, disposed of. 12 In view of the above order, the notices issued by this Court as per order dated 31st July, 2008 stand discharged. CHIEF JUSTICE S.J. KATHAWALLA, J.