1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. 129 OF 2008 Shri Rajan Sitaram Samant. ) Age : 49 yrs., Occu : Business, ) No.10, Saraswati Kunj, ) Hanuman Society, Nadivli Path, ) Dombivli (East) – 421 201. )... Petitioner. V/s. 1. Kalyan Dombivli Municipal ) Corporation, covered under Bombay ) Provincial Municipal Corporation ) Act 1949, having its Office at ) Shankarrao Chowk, Kalyan (West), ) District – Thane. ) 2. The Commissioner, Kalyan Dombivali ) Municipal Corporation, ) having his office at Shankarrao Chowk) Kalyan (West), District – Thane. ) 3. The Principal Secretary, ) Urban Development – 1 ) Mantralaya, Mumbai. ) 4. The State of Maharashtra ) (Copies of Respondent Nos. 3 & 4 ) to be served on Govt. Pleader, ) Writ Cell, High Court, Mumbai.) ) 5. Shri Dinesh Javerbhai Zanzarkiya ) Power of Attorney Holder, ) R/o. Megha Bhavan, Dombivli (East) ) District : Thane. ) 2 6. Sou. Sujata Jagdish Raje, ) R/o. Shri Malhar Bunglow, ) RE-8, Gymkhana Road, MIDC, ) Dombivli (East), District : Thane. )... Respondents. Mr. S.P. Kadam for the Petitioner. Mr. Rafiq Dada, Sr. Adv. i/b. A.S. Rao for Respondent Nos.1 & 2. Mr. A.H. Palekar, AGP for Respondents 3 & 4. Mr. A.S. Desai for Respondent No.5. Mr. Y.S. Jahagirdar, Sr. Adv. i/b. Bhushan Walimbe for Respondent No.6. CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J. RESERVED ON : 26th JUNE, 2009. PRONOUNCED ON : AUGUST 2009. ORAL JUDGMENT (PER DHARMADHIKARI,J.) :- Rule. Respondents waive service. By consent, rule made returnable forthwith. Heard both sides. 2. By this Writ Petition under Article 226 of the Constitution of India, the Petitioner firstly challenges the permission granted by the First Respondent – Corporation allotting open space admeasuring 95.50 sq.mtrs. to Respondent No. 5 within the compound of Ursekarwadi Vegetable Market and secondly, the 3 decision of the General Body of the Kalyan Dombivli Municipal Corporation dated 15th November 2007 allotting the Galas on the first floor of the Vegetable Market for a purpose other than Vegetable Market. 3. The Petitioner has prayed for certain incidental and ancillary directions and orders. The First Respondent is the Kalyan Dombivli Municipal Corporation, a Corporation established and incorporated under the Bombay Provincial Municipal Corporation Act, 1949 (for short BPMC Act). The Second Respondent is the Commissioner of the said Corporation. Respondent Nos. 3 and 4 are the Principal Secretary, Urban Development Department and the State Government whereas Respondent Nos. 5 and 6, added subsequently are private parties. Respondent Nos. 5 and 6 are the allottees of the areas enumerated above. 4. The Petitioner claims to be residing in Dombivli that is within Municipal limits of the First Respondent. He states that he is a member of Transport Committee of the Corporation. He is a tax payer and permanently resides in Dombivli and 4 therefore, concerned with matters of general public importance. He is also a Social Worker. 5. The grievance of the Petitioner is that a Development Plan was approved by the State of Maharashtra for the Dombivli City. The area adjoining the Dombivli Railway Station is thickly populated and crowded. As per the development plan, a Vegetable Market has been proposed and the plot of land reserved for the said purpose is Plot No.26 in Ursekarwadi. This is within 75-80 mtrs. from Railway Station. The reservation was for providing a space to hawkers and vegetable vendors. The Vegetable Market is constructed and it has a ground plus one upper floor. The structure consists of nearly 300 galas for the vegetable vendors. The market has been constructed and allotments pursuant to directions in Writ Petition No.1463 of 1999 issued by this Court, were made. The Petitioner states that since the allotment was governed by the order in the above Writ Petition, it was expected that the authority would ensure that the Reservation is implemented in letter and spirit. In other words, area/plot reserved must be used as a Vegetable Market. However, it is now revealed that the General 5 Body of the First Respondent – Corporation has passed a Resolution that the Galas on the first floor are allotted to one Sujata Jagdish Raje (Respondent No.6) on lease for a period of 25 years. Therefore, it is clear that the First Respondent is not interested in allotting the galas to hawkers and vegetable vendors thereby defeating the purpose of the reservation. The Petitioner has also made a grievance with regard to a decision taken to allot the open space near the Vegetable Market to a private party in lieu of some shops alleged to have been razed in road widening. The allotment is made for construction of commercial galas. 6. The Petitioner has challenged these actions of the Corporation and its Officers as contrary to the Bombay Provincial Municipal Corporation Act, 1949 for short BPMC Act, 1949 and more particularly, Section 63 thereof. He submits that the obligatory and mandatory duty in maintaining the Municipal Market is thus not fulfilled by Respondents 1 and 2. The Petitioner states that several complaints and representations were addressed but there is no redressal of the grievance. The Fifth Respondent before the Court is the 6 beneficiary of the open space whereas the Sixth Respondent is that of the first floor of the Vegetable Market. Apart from the fact that the hawkers are not being removed thereby causing inconvenience to the members of the public additionally, the above illegal acts of the First Respondent – Corporation has increased the problems of the local population. In these circumstances, and in public interest the Petitioner has moved this Court. 7. After the Petition was duly served, the First Respondent has filed an affidavit affirmed by the Deputy Municipal Commissioner (Estates). As far as the Petitioner’s allegations with regard to allotment of the first floor, the deponent has stated that the Vegetable Market was developed in 1999. Members of the Hawkers’ Association were allotted otas in the vegetable market. Although, they took possession of the otas, they defaulted in payment of rent. The Corporation, therefore, sought liberty from this Court by moving a Civil Application being Civil Application No.1737 of 2005 in Writ Petition No.1463 of 1999 and this Court disposed off the Civil Application with a direction to the First Respondent – Corporation to give notice to 7 the allottees and thereafter, the Corporation was at liberty to take action in law. The order of this Court dated 5th August 2005 reads as under :- “ Heard parties. Mr. Rao, appearing for the Corporation stated that out of 120 ota holders only 78 have paid their dues and remaining 43 ota holders have not paid the dues till date and they continued to be in arrears of rent. Similarly, out of 11 pitch holders only 2 pitch holders have paid rent and the remaining 9 pitch holders are in default. It would be open for the Corporation to give notice to the ota/pitch holders and if the arrears are not paid within a reasonable time, the Corporation is free to take action in accordance with law. Civil Application stands disposed of.” 8. The Corporation issued individual notices and even published them in Newspapers. However, the allottees did not pay their outstanding rental dues which had accumulated to Rs. 25,83,000/-. The matter was taken up by the Standing Committee and it passed a Resolution bearing No.33 dated 24th May 2006, thereby even granting reasonable installments to the allottees. Thereafter, fresh notices as also more 8 opportunities were given to the allottees. They did not avail of the same. In these circumstances, and when the premises were lying vacant since 1999 that the Corporation, by a General Body Resolution dated 16th August 2007, approved the proposal of the administration of giving the first floor of the Vegetable Market on lease for commercial purpose for 25 years. Thereafter, bids were invited and the tender of Respondent No. 6 was the highest. The General Body once again, by a Resolution dated 21st November 2007, accepted the said bid and granted its approval. 9. In these circumstances, the Corporation submits that the Petitioner’s allegations that Respondent Nos.1 and 2 have defeated the Reservations are wholly incorrect and false. The premises were lying vacant and unused. There was every possibility of the same being misused by miscreants. There would have been an encroachment as well. In these circumstances, and when the Corporation has spent substantial sum of Rs.84 lakhs for construction that the premises have been handed over on rental basis. The Corporation has also placed on record the fact that the Sixth Respondent has entered 9 into a sub-lease with C.K.P. Co-operative Bank and the first floor premises are to be used by the said Bank. 10. As far as the allotment of open space in the vegetable market is concerned, the Corporation has explained its position in paragraphs 16 and 17 of the affidavit. It has stated that there was no entry to the vegetable market from Patkar Road. Access to the said market from Patkar Road had to be created but for making such an access, 8 shops would have to be removed. The 8 shops belong to Respondent No.5. They were demolished and the road was constructed giving access to the vegetable market. The Corporation, therefore, took a decision to rehabilitate those who are affected by demolition for road widening. The Resolution has been passed on 10th December 1999. The Corporation has explained that Respondent No.6 had also applied for rehabilitation. Further, as far as Respondent No.5 is concerned, it is stated that there was a land between vegetable market and Megha Bhavan owned by Respondent No. 5 which admeasured 30 x 15 sq. ft. Respondent No.5 lost 8 galas by virtue of the aforementioned DP/access road. In these circumstances, he was allowed to use this land admeasuring 10 95.50 sq. meters and therefore, to compensate the loss of land held by Respondent No.5 to the extent of 95.50 sq. mtrs., he was allowed usage of the land between vegetable market and Megha Bhavan. This was for commercial purposes as earlier, Respondent No.5 had 8 shops premises. Therefore, rehabilitation of Respondent No.5 has nothing to do with the use of the first floor in the vegetable market. Furthermore, Respondent No.5 was allowed to use the land on a condition that he will construct the bridge at his own cost. Therefore, he had to spent Rs.9,25,000/- approximately for construction of the bridge so also pay rent, property and other taxes to the Corporation. Thus, Corporation has not allowed use of any property for private or commercial motives and there is no substance in the allegations to that effect. They have all been denied. 11. Thereafter, the Petitioner filed a rejoinder affidavit and pointed out that the area admeasuring 442.71 sq.ft. on the first floor of the vegetable market has been given on tenancy basis to Respondent No.6 for 25 years. He pointed out that the conversion of vegetable market into commercial usage such as 11 bank, shops is illegal. He has challenged the action of the then Commissioner in issuing tenders for grant of lease of the first floor premises even without seeking permission from the General Body. He has annexed documents which according to him would prove this allegation. Thereafter, he has invited our attention to Section 37 of the M.R.T.P. Act and contended that sanction of the State Government is required for change of reservation of vegetable market into commercial and there is no such sanction and therefore, the entire action is illegal. He has also contended that the needs of the local population be given prominence and that is why one Municipal market has to be saved. Thereafter, he has alleged that the order of status- quo granted by this Court has been violated and the Bank has become functional. He has also challenged the action of the allotment of land to Respondent No.5 and has urged that the construction by him is in vegetable market. The Petitioner has then rejoinded to the affidavit of Respondent No.5 and has alleged that there were only 6 shops and not 8 as falsely alleged. Therefore, allotment of the area is not commensurate with the number of shops in possession of Respondent No.5. Further, he has alleged that the Fifth Respondent has claimed 12 loss of land and shop in road widening nearly 13 years ago despite knowing that Respondent No.5’s father received compensation from the Corporation and has executed an affidavit to that effect. In these circumstances, there was no necessity of giving any area or land to the Fifth Respondent. It is alleged that the construction of shops in lieu of compensation was already carried out by father of Respondent No.5 in 1996. Therefore, there was no question of once again allotting him land. For these reasons, he stated once again that the Petition be allowed. 12. There are affidavits filed by Respondent No.6. Respondent No.6 has in her affidavit referred to the Corporation’s stand and has stated that her offer was the highest and has rightly been accepted. She has also referred to the lease deed which came to be executed in her favour and has pointed out that the Corporation executed the lease after it invited tenders for the same by publishing advertisements in leading Newspapers published from Mumbai and Thane District. The lease has been executed on 20th December 2007. The non-refundable security deposit has been already forwarded so also the lease rent. The 13 possession was also handed over and thereafter, extensive renovation and repair works have been carried out. In pursuance of Clause 21 of the lease deed, the Sixth Respondent is entitled to sublet the premises or a part thereof and accordingly, she has entered into a sub-lease with C.K.P. Co- operative Bank. The details of the sub-lease with the Bank are also set out on affidavit. In these circumstances, and when there is delay and latches in filing the Petition, the Respondent No.6 contends that the Petition be dismissed. The rest of the affidavit contains denials. She has pointed out that the status- quo order has not been violated because it restrained construction and not holding an inaugural function. 13. The Petitioner has, then, filed further a affidavit and high- lighted the problem of hawkers and inaction of the Corporation in dealing with them. Lastly, we have additional reply on record of the First Respondent – Corporation and the First Respondent has stated that action has been taken against the hawkers and there is no contravention of the orders and directions of this Court so also the Supreme Court in that behalf. It has reiterated its earlier stand and further pointed out that in the 14 present case there is no change of reservation. The reservation is of the vegetable market. There is only a change of user inasmuch as the commercial usage of the first floor of the vegetable market is permissible under the D.C. Rules. The relevant rule has been reproduced and it reads thus :- “ Where the use of the plot is specially designated for open market, the Commissioner may in particular cases, permit development work on upper floors, which shall be in conformity with the zone, in which the plot falls.” 14. It is pointed out that the vegetable market is a open market. It is in commercial zone. Therefore, the usage of the upper floor of the vegetable market as a Bank is in consonance with the zonal user. Thus, commercial activity being permitted in the subject zone, there is no question of any change in the reservation. 15. The Government of Maharashtra through the Town Planner has filed an affidavit in this Court and pointed out that on the representation made by the Petitioner a detailed report is called 15 for from the Kalyan Dombivli Municipal Corporation and it is still awaited. 16. In paragraph 6 of the affidavit of the Town Planner which is affirmed on 16th June 2009, it is stated that the development plan for Dombivli City has been sanctioned and site No.26 was proposed therein as vegetable market. Thereafter, revised development plan details are set out and it is stated that part of the reserved site is shown as existing vegetable market and part of the reserved site is shown in excluded part – 22, which is proposed to be included into residential zone by modification M-32/2, which is yet to be sanctioned by the State Government. However, it is clarified that the State Government has not received any proposal from the Kalyan Dombivli Municipal Corporation to change the reservation of vegetable market. In these circumstances, the provisions of Modification of Development Plan in the Town Planning Act and the role of the State Government in that behalf, are not applicable. 17. With this material on record, we have heard the learned Counsel appearing for the Petitioner, the learned A.G.P. and the 16 learned Senior Counsel appearing for Respondent Nos. 1, 2 and 6. 18. The principles of Judicial Review in such matters are well settled. In G.B. Mahajan and Others V/s. The Jalgaon Municipal Council and Ors, which is a decision reported in AIR 1991 SC 1153, the Hon’ble Supreme Court held thus :- “14. ......... There is, no doubt, a degree of public accountability in all governmental enterprises. But, the present question is one of the extent and scope of judicial review over such matters. With the expansion of the State’s presence in the field of trade and commerce and of the range of economic and commercial enterprises of government and its instrumentalities there is an increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management methods, prevention of time and cost over-runs in projects, balancing of costs against time-scales, quality-control, cost-benefit ratios, etc. In search of these values it might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies, these are essentially matters of economic policy which lack adjudicative disposition, unless they violate 17 constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator’s right to trial and error, as long as both trial and error are bona fide and within the limits of authority. ............ While the concern of public law is to discipline the public power by forging “legal techniques as both part of the way in which public power is made operational and part of the process through which it is attempted to render such public power legitimate and to think of issues of legal regulation of public power in a way that goes deeper than particular instances and seeks to elaborate issues of general principle.” There is, however, as Professor Wade Points out, ample room, within the legal boundaries for radical differences of opinion in which neither side is unreasonable. In Tameside case Lord Denning pointed out the error of confusing differences of opinion, however, strong, with unreasonableness on the part of one side or the other. Lord Diplock said that the very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. 18 In the ever increasing tempo of urban life and the emerging stresses and strains of planning, wide range of policy options not inconsistent with the objectives of the statute should be held permissible.” “16. Sri Jain contended that the transaction essentially concerns the disposal of Municipal property by way of a lease and violates Section 92 of the “Act”. Section 92 of the Act provides : “(1) No Council shall transfer any of its immovable property without the sanction of the State Government. (2)..... Omitted as unnecessary. (3) Notwithstanding anything contained in sub- section (1), a Council may lease its immovable property for a period not exceeding three years, and the lessee shall not be allowed to make any permanent constructions on such immovable property. Such lease may be renewed by the Council beyond the period of three years with the permission of the Director, so, however, that the total period of any lease shall not exceed seven years. No such lease or any renewal thereof shall be granted unless supported by a resolution passed at a meeting of the Council.” 19 The question is whether the present transaction amounts to lease. Sri Singhvi submitted that the transaction is limited to the disposal of occupancy- rights covered by Section 27(1) of the Act and is not one of transfer or lease of immovable property under Section 92. Sri Singhvi says that even otherwise the two areas of the statute are mutually exclusive and provisions of S.272(1) were intended to and did meet a special situation pertaining to municipal markets while S.92 dealt with transfer or lease of other properties. It is unnecessary in the present case to examine the larger question raised by Sri Singhvi whether Section 92 has no application at all to “municipal markets”. But the transaction would be out of Section 92 if it is not a lease or a transfer prohibited by that Section. On this Sri Singhvi says that the transaction relates to mere rights of user without transfer of any interest in the property. In the present case it is possible to fit the power exercised by Municipal authority into Section 272(1) of the Act. The relevant provisions say : 272. (1) The Council may (a) (i) to (iv) omitted as unnecessary (b) put up to public auction or dispose of by private sale, the privilege of occupying or using any stall, 20 shop, shed, pen or space in a municipal market or municipal slaughter-house for such period and on such conditions as it may think fit. (i) (2) to (4) omitted as unnecessary If it is reasonably possible to fit in the basic conceptions of this project into what can be held to be comprised in the power under Section 272(1), there is no reason why the provision to stifle be interpreted unduly restrictively to exclude such enterprise. On a consideration of the matter it appears to us that the appellants have not been able to establish that the essential elements of the transaction are such that Section 92 of the Act is violated. It would, indeed, be unduly restrictive of the statutory powers of the local authority if a provision enabling the establishment of markets and disposal of occupancy-rights therein are hedged in by restrictions not found in the statute. The point to note is that the developer to the extent he is authorised to induct occupiers in respect of the area earmarked for him merely exercises, with the consent of the Municipal 21 Council, a power to substitute an occupier in his own place. This is not impermissible when it is with the express consent of the Municipal Council.” 19. From a perusal of the above principles and applying them to the instant case, we are of the view that the impugned actions are neither illegal nor unconstitutional. Public Interest is not adversely affected by the impugned actions. Even the members of public owe a duty and ought to conduct themselves responsibly and in a mature manner. They must be law abiding themselves. Their conduct must demonstrate that they really want Rule of Law to prevail. On the one hand, they want removal of hawkers from pavements but on the other they continue to patronize hawkers who trade on the footpaths, pavements and even by encroaching on public areas and spaces. The business of hawkers and street side vendors is flourishing and at the same time Municipal Markets are vacant for want of buyers. Nobody wishes to enter the Municipal Markets for buying vegetables. Everybody chooses to buy them from the hawkers on footpath, pavements and roads. Thus, we as members