Pragati Mahila
Mandal, Nanded Vs Municipal Council, Nanded & Ors.
J U D G M E N T
Deepak Verma, J.
1.
How
far whip of Public Interest Litigation can be stretched and used is the moot and
foremost question to be answered in this Appeal, arising out of judgment and order
dated 16/17th July, 2001 passed by Division Bench of the High Court of
Judicature of Bombay, Bench at Aurangabad in W.P. No. 925 of 1988 titled as Anil
Tryambakarao Kokil (since dead) Vs. Municipal Council, Nanded and others.
2.
Appellant
herein - Pragati Mahila Mandal, Nanded is before us challenging the said judgment
and order passed by Division Bench, whereby and where under allotment of a piece
of plot bearing Survey No. 42 of Village Assadullabad (Maganpura), admeasuring 75'x
350' in its favour has been set aside and quashed as being illegal and void ab initio,
with further direction to Respondent No. 1, Municipal Council, Nanded to take possession
of the said plot together with building appurtenant thereto, within a period of
eight weeks from the date of impugned judgment. Thumb nail sketch of the facts of
the case is as under:
3.
Appellant
is a Charitable Trust duly registered under the provisions of Bombay Public
Trust Act, 1950. On 14.10.1983, it made a request to Respondent No. 1 Municipal
Council, Nanded (now Nanded Waghela City Municipal Corporation) for allotment of
a plot, out of the lands belonging to it, for starting a school to provide education,
especially for girls. Accordingly, in the year 1984, the Administrator, who was
then holding the charge of the Municipal Council, vide Resolution dated 22.10.1984
allotted a plot admeasuring 75' x 350' bearing Survey No. 42 to the Appellant on
a 60 years' lease.
4.
It
further contemplated that the applicable rental compensation shall be fixed on the
basis of the rate to be worked out by the Assistant Town Planner, subject to
compliance of the provisions of Section 92 of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965 (for short 'The Act'). The Assistant
Town Planner was also required to undertake the measurements and after fixing
boundaries, the said piece of plot came to be handed over to the Appellant on 25.10.1984,
after drawing a possession Panchanama. However, at that time, the nominal rental
compensation could not be fixed as the State Government was yet to grant
sanction for transfer of the land in favour of the Appellant, as contemplated
under Section 92 of the Act.
5.
Respondent
No.1, the Municipal Council then in turn submitted a proposal to the Collector,
seeking (contd.) sanction of the State Government regarding allotment of the aforesaid
plot in favour of the Appellant. The Assistant Town Planner by his communication
dated 5.6.1986 informed Respondent No.1 that rental compensation for the subject
plot for giving it on long lease of 60 years, would work out at Rs. 6,816/- per
annum. A representation was made by the Appellant for reduction of the rental
to a reasonable sum, owing to it being a Charitable Trust, working mainly for
the benefit of girls and women and it had no source of income to pay such rental
compensation. On reconsideration of the matter, the rental was fixed at Rs. 11 per
annum by the Divisional Commissioner, vide his order dated 12.11.1986, wherein sanction
was granted under Section 92 of the Act, for allotment of the subject plot to the
Appellant on a lease for 60 years. Thus, it was an ex-post facto sanction granted
in favour of the Appellant, after the possession of the plot was already handed
over to the Appellant. It was this allotment of land in favour of the Appellant
and also other allotments made by Respondent No.1 in favour of other allottees
together with certain donations made by Respondent No.1, Municipal Council that
were the subject matter of challenge in a consolidated writ petition filed by Anil
Tryambakarao Kokil (since dead) in the nature of pro bono publico.
6.
However,
it appears that during pendency of this Writ Petition, the sole petitioner Anil
Tryambakarao Kokil expired. It is to be noted here that, following his demise, no
application to bring the Legal Representatives of the deceased Petitioner on record
was preferred, before the hearing of the writ petition could commence. Thereafter,
instead of directing the petition to have abated or to have made some alternative
arrangements (since his legal representatives were not brought on record) to ensure
that some other public spirited person to be brought in as petitioner to prosecute
the petition, in place of deceased Anil Tryambakarao Kokil, the counsel Mr. S.C.
Bora, who probably was already appearing for deceased Writ Petitioner, was appointed
as Amicus Curiae and was directed to continue to prosecute the said petition in
that capacity of Amicus Curiae. Thus for all practical purposes, the petition continued
to be prosecuted and heard even when admittedly the sole Petitioner Anil
Tryambakarao Kokil had expired long time back.
7.
Thus,
apart from examining the correctness, legality and propriety of the impugned order
passed by Division Bench, it is also necessary to examine the effect of death of
the sole petitioner in a Public Interest Litigation, viz., whether the same would
stand abated or can be allowed to be continued without bringing anyone else in
place of the deceased petitioner.
8.
The
Division Bench had, vide its interim order dated 16.1.2001, considered the question
of the effect of the death of the sole petitioner Anil Tryambakrao Kokil on the
Writ Petition, and whether anyone else is required to be brought in his place. After
due deliberation, the Division Bench then appointed counsel for the petitioner who
was already appearing as Amicus Curiae, with further direction to allow him to continue
the petition. Thus, there was change of status of the counsel for deceased petitioner.
The said Order dated 16.1.2001 reads as under (contd.) "This is a public interest
litigation pertaining to the allotment of plots and shops in the Nanded City; by
the Municipal Council, Nanded. However, the petitioner has expired long back. Nobody
has come forward to agitate the cause of this petition further. After having gone
through the petition, this Court would like to hear the parties to find out whether
there is any substance in the petition. Shri S.C. Bora, learned Advocate, who
has made the statement that the petitioner has expired, has stated that this Vakilpatra
ceases to be effective. However, in our opinion, it is necessary to appoint Amicus
Curiae so as to assist this Court to understand the facts of the case and to find
out if any decision is required to be given in the matter. Shri Bora is, therefore,
appointed as Amicus Curiae in the matter. Shri M.V. Deshpande, learned Advocate
for the Municipal Council, states that he was under the impression that since
the petitioner has expired, the matter will not be heard today. The learned Advocates
for other respondents also state that they require more time for getting themselves
prepared in the matter. S.O. to 6.2.2001."
9.
Perusal
thereof does not, in fact, reflect or show as to for what reasons and under what
circumstances the Amicus Curiae was allowed to be relegated to the position of
the petitioner, who had admittedly died long (contd.) time back. It is too well
settled that no matter can be allowed to be prosecuted for and on behalf of a dead
person or against a dead party but it is also no doubt true that a Public Interest
Litigation, which generally raises an issue of general public importance,
should not be allowed to be withdrawn or dismissed on technical grounds, if
cognizance thereof has already been taken by the Court. But an important issue would
still arise whether in case of death of a sole petitioner in a Public Interest
Litigation, without bringing anyone else in his place, if the petition could still
be allowed to be prosecuted or continued?
10.
The
concept of Public Interest Litigation was introduced in Indian Legal System to
help a person or a class of persons whose legal and Constitutional Rights are violated
and where such person or class of persons as the case may be, owing to their
disadvantaged position such as poverty, exploitation, socially and economic backwardness
and other forms of disablement etc. is unable to approach the courts. Under the
aforesaid circumstances, a person or the society could espouse a (contd.) common
grievance by filing a petition under Article 226 of the Constitution of India in
the High Court or under Article 32 of the Constitution of India in the Supreme Court.
11.
According
to Black's Law Dictionary - "Public Interest Litigation means a legal action
initiated in a court of law for the enforcement of public interest or general interest
in which the public or class of the community have pecuniary interest or some interest
by which their legal rights or liabilities are affected."
12.
It
is also well settled that laws of procedure are meant to regulate effectively,
assist and aid the object of doing substantial and real justice and not to foreclose
an adjudication on merits of substantial rights of citizens under personal,
property or other laws.
13.
Though,
the courts entertaining PIL enjoy a degree of flexibility unknown to the trial
of traditional court litigation but the procedure to be adopted by it should be
known to the judicial tenets and adhere to established principles of a judicial
procedure employed in every judicial proceedings which constitute the basic (contd.)
infrastructure along whose channels flows the power of the court in the process
of adjudication. It would thus clearly mean that the courts have to, in the normal
course of business, follow traditional procedural law. However, minor
deviations are permissible here and there in order to do complete justice between
the parties.
14.
Even
though, we made fervent search to find out a suitable answer to the questions
posed hereinabove, from earlier precedents of this Court but it appears to be a
unique case. Therefore, in our wisdom, we thought it appropriate to provide
answer to the said question.
15.
Before
proceeding to decide the said issue, it is necessary to take into consideration
some of the provisions of the Code of Civil Procedure, 1908 (hereinafter shall
be referred to as Code for short). Section 141 of the Code, which creates a bar
of applicability of the provisions of the Code to petitions filed under Article
226 of the Constitution reads as under:
Miscellaneous proceedings- The procedure provided
in this Code in regard to suit shall be followed, as far as it can be made
applicable, in all proceedings in any Court of civil jurisdiction. [Explanation
- In this section, the expression "proceedings" includes proceedings under
Order IX, but does not include any proceeding under article 226 of the
Constitution.]" Explanation which has been added in the Code with effect from
1.2.1977 makes it clear that the provisions of the Code do not specifically apply
to the proceedings under Article 226 of the Constitution of India. The necessary
corollary thereof shall be that it shall be open to the Courts to apply the procedure
provided in the Code to any proceeding in any Court of civil jurisdiction except
to the proceedings under Article 226 of the Constitution of India.
16.
Order
XXII, Rule 4A of the Code prescribes the procedure where there is no legal representative,
reads thus: "Order XXII Rule 4A. Procedure where there is no legal
representative-
If, in any suit, it
shall appear to the Court that any party who has died during the pendency of the
suit has no legal representative, the Court may, on the application of any party
to the suit, (contd.) proceed in the absence of a person representing the estate
of the deceased person, or may by order appoint the Administrator-General, or an
officer of the Court or such other person as it thinks fit to represent the estate
of the deceased person for the purpose of the suit; and any judgment or order subsequently
given or made in the suit shall bind the estate of the deceased person to the same
extent as he would have been bound if a personal representative of the deceased
person has been a party to the suit. 2) Before making an order under this Rule,
the Court - a) may require notice of the application for the order to be given to
such (if any) of the persons having an interest in the estate of the deceased person
as it thinks fit; and b) shall ascertain that the person proposed to be appointed
to represent the estate of the deceased person is willing to be so appointed and
has no interest adverse to that of the deceased person."
17.
Thus,
even if it is held that Order 22 of the Code, which relates to the subject of
'abatement of suits', is not applicable to writ proceedings, it does not mean
that death of the petitioner can be totally ignored. Looking to the nature of the
writ proceedings, as initiated by the deceased petitioner, the question is whether
the right to pursue the remedy would have (contd.) survived despite the absence
of any person on record representing the deceased.
18.
Under
these circumstances, what would have been the best option open to the court, is
to be seen. In our considered opinion, the following options could have been exercised
by the Court.
19.
As
soon as the information is received that a sole petitioner to the writ petition
in the nature of a PIL filed pro bono publico, is dead, the Court can issue a notice
through newspapers or electronic media inviting public spirited bodies or
persons to file applications to take up the position of the petitioner. If such
an application is filed, the court can examine the antecedents of the person so
applying and find out if allowing him to be impleaded as petitioner could meet
the ends of justice.
20.
If
the matter is already pending and the court is of the opinion that the relief sought
could be granted in the PIL, without having to take recourse to adversarial- style
of proceedings, then it can proceed further as if it had taken suo moto
cognizance of the matter (contd.)
21.
The
court can still examine and explore the possibility, if any of the
non-contesting Respondents of the Writ Petition could be transposed as petitioner
as ultimately the relief would be granted to the said party only. The court in
a suitable case can ask any lawyer or any other individual or an organisation to
assist the court in place of the person who had earlier filed the petition.
22.
However,
the fact situation of this case would show that after the death of the original
petitioner Anil Tryambakarao Kokil, Respondent No.1 Municipal Council could have
stepped into the shoes of the petitioner, albeit on a limited scale. This is because,
while the Writ Petitioner had challenged the initial allotment of land in favour
of the Appellant charitable organization on the ground that it was made in contravention
of the purpose envisaged in the Master Plan, Respondent No.1 Nanded Municipal
Council had emphasized on the subsequent unauthorized change in user of land by
the Appellant. If we were to cast our net wider, Sitaram Maganlal Shukla, (who
was Respondent No. 12 in the Writ Petition), could (contd.) also have been
transposed as a Petitioner because he too, had a similar grievance against the
Respondent Municipal Council as that of the original deceased petitioner. It has
been brought to our notice that the said Sitaram Maganlal Shukla also had
passed away during the pendency of the Writ Proceedings - however, in his own Second
Appeal No. 30 of 2000, he had been represented through his Legal Representative.
So, the impleadment of that Legal Representative as the Petitioner in this PIL
would have been sufficient for continuance of proceedings. Since the petition before
the High Court was in the nature of a PIL, it is immaterial that the respective
causes of action urged by the Writ Petitioner and Respondent No. 12 have their foundations
in different sets of legal argument, as the main relief sought is the same, i.e.
quashing of the allotment order in favour of the Appellant.
23.
At
any rate, in cases like the above, where the main Writ Petitioner has passed
away and any other person (not being a representative of the deceased) is brought
on record, either from the opposite side or from a third (contd.) party, the court
may, after having received an application requesting for permission for the
same, grant opportunity to the newly added petitioners to amend the petition,
if they so desire.
24.
In
these circumstances, Court could have taken a suo moto cognizance of the averments
made in the petition, despite death of original petitioner, by asigning reasons
and could have continued to bring it to a logical end, so as to meet the ends
of justice.
25.
In
this view of the matter, reasoning of the Court in this regard cannot be
legally upheld nor we can put a seal of approval to such a procedure as the same
would lead to an anomalous situation not akin to law.
26.
Now,
coming to the merits of the matter, few facts material for deciding have already
been mentioned hereinabove but we have to decide whether the Division Bench in
the impugned judgment was justified in quashing the allotment made in favour of
the Appellant or not.
27.
It
is pertinent to point out here that the aforementioned Sitaram Maganlal Shukla had
filed a civil suit for cancellation of the lease granted in favour of (contd.) the
Appellant. Ultimately, matter was carried up to this Court. The said suit was dismissed.
An SLP (c) No.16517/2007 against the judgment and order dated 15.6.2007 passed in
Second Appeal No. 30 of 2000 of the High Court of Bombay, Bench at Aurangabad was
filed before this Court. However, on 21.9.2007 the said SLP was dismissed as withdrawn.
Thus, in any case, the question of legality of the allotment of the subject piece
of land in favour of the Appellant, had attained finality at the High Court stage,
even though at the instance of some other person.
28.
In
the aforesaid suit filed by Sitaram Maganlal Shukla, who was the plaintiff therein,
the Municipal Council was arrayed as defendant No.2 in which it had filed its
written statement giving reasons for allotment of piece of plot in favour of the
Appellant. It was categorically mentioned in the same that Divisional Commissioner
had accorded sanction to the said transfer of plot by its letter dated
12.11.1986. Accordingly, the Appellant had started the construction of its
building to be used for the hostel for girls and working women. (contd.) Similarly,
all other Respondents had fully supported the allotment of plot in favour of
the Appellant.
29.
In
the Writ Petition No. 925 of 1988, Respondent No. 1 has submitted that the reservations
of the land in survey No. 42 and Survey No. 29 for the establishment of a primary
school near the open space in the revised layout was not under the master plan.
It was development plan submitted by the owner of these two lands under Section
44 of the Maharashtra Regional and Town Planning Act of 1966 and those two reservations
are as per the tentative development plan formulated by the Municipal Council as
a planning authority. This plan was sanctioned before 1972. The owner of the
land was not in a position to finance the construction of a primary school. In this
background, Appellant - Trust came forward with the offer to establish primary
school as per the revised development plan with the consent of the owner.
30.
It
is pertinent to point out the affidavit of Collector, Nanded in the Writ Petition.
He has categorically averred that the said plot was reserved to (contd.) be
allotted on the lease basis for 60 years and the main object of the Appellant, Pragati
Mahila Mandal, Nanded is to conduct educational activities for girls. Assistant
Director of Town Planning had also issued no objection certificate for the allotment
of plot to the above institution. He has also referred to Rule 21 of the Maharashtra
Municipalities (Transfer of Immovable property) Rules, 1983 under which the Municipal
Council is bestowed with the powers of sanction of government grant of the land
on the basis of lease for promotion of educational, medical, religious, social and
charitable purposes to the registered institutions on payment of such concessional
premium as the council may, in its discretion, determine.
31.
The
Chief Officer of Nanded Municipal Council, Nanded had also submitted his affidavit
in reply to the Writ Petition and assigned various valid and cogent reasons for
allotment of plot to the Appellant.
32.
In
the reply affidavit of Kiran Kurundkar dated 30.6.2001, the then Commissioner of
the Nanded - Waghela Municipal Corporation, it has categorically been stated (contd.)
that on 3.1.1978, the first development plan of Nanded city was sanctioned by
the Government in which the said plot was shown and included in the Development
plan for public and semi public purposes and was not shown or included as land
reserved exclusively for primary school. Thus, only after land user was changed,
admittedly the Appellant is using it for the said purposes ie. Public and semi public
use, which fact has not been denied by Respondents.
33.
However,
as has been mentioned earlier, for want of money and financial crunch, the school
for which the land was initially acquired by the Appellant could not be started.
So, it constructed a hostel for working women and girls taking higher education.
There is one auditorium also which is being used as family counselling centre.
34.
It
has neither been disputed before us nor anything could be brought on record to show
that Appellant is running the said hostel for any gains or profit. In fact, it is
run on no profit-no loss basis. This is manifest from the details of the list
of students (contd.) who have been pursuing various courses for higher education
since the year 1991 to the year 2000. It largely discloses the names of the
students, the courses for which they had opted and the colleges of enrolment. It
also shows that initially room rent was only Rs. 150/- which was enhanced to Rs.
400/- in the year 2000. Most of the inmates were students and only handful of them
were working women. We have been given to understand that as of today, it is charging
only Rs. 750/- per month from each of the students occupying the room. The accounts
of the Appellant are duly audited and reflect absolute transparency. There is no
reason to doubt the correctness thereof.
35.
It
is a matter of common knowledge that girls and women face lot of problems and
difficulties in finding a suitable and safe accommodation when they go out of their
own cities, to their respective schools or colleges or work-place. If a hostel
has been constructed for girls and working women, then it would definitely be for
public or semi public purpose and it cannot be said that there has been any
deviation from the purposes for (contd.) which the said plot was earmarked and allotted
to the Appellant. It is commendable that the Appellant has taken the initiative
of introducing progressive elements (through the establishment of counseling centers),
in its efforts to alleviate some primary concerns of most working women. It would
be nothing short of a cruel twist of justice, if they are prevented from continuing
to do so by a PIL, which is motivated by ulterior motives.
36.
In
this regard, it is further necessary to mention that the provisions of Memorandum
of Association of the Appellant clearly state that one of the objectives of the
Appellant is to provide Hostel facilities for girls and working women. This further
fortifies the stand of the Appellant that it is public or at least semi-public purpose.
37.
Thus,
looking to the matter from all angles, we are of the considered opinion that impugned
judgment and order passed by the Division Bench cannot be sustained in law. It deserves
to be set aside and quashed. We accordingly do so. The appeal is accordingly hereby
allowed. Parties are directed to bear their own respective costs.
......................J.
[DALVEER BHANDARI]
......................
J. [DEEPAK VERMA]
February
18, 2011
New
Delhi.
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