Surendra Shamsundar Jeware v. The State of Maharashtra

Rule. Rule made returnable forthwith, by consent of learned counsel for the respective parties.

This petition was initially filed as a Public Interest Litigation bearing PIL No.86 of 2021. Upon objection raised by learned counsel for respondent nos.1 to 5 and 6 that the petitioner has personal interest in allotment of the writ lands in his favour and pursuant to request made by learned counsel for the petitioner, this court (Hon’ble the Chief Justice & M.S. Karnik J.) vide order dated 20th December 2021 was pleased to allow conversion of Public Interest Litigation into a Writ Petition. PIL No.86 of 2021 is thus treated as Writ Petition bearing No.9498 of 2021.

The petitioner by way of this petition seeks relief of quashing Resolution No.18 dated 28th May 2021 passed by respondent no.6-Municipal Council, Baramati (“the Council”), whereby the Council has resolved to allot the writ lands admeasuring 3,408 sq.mtrs. in favour of respondent no.7- Natraj Natya Kala Mandal (“the Trust”). The petitioner further prayed for quashing of Resolution No.5 dated 12th July 2021 passed by respondent no.6- Council, whereby the Council has resolved to move an application for change of user in respect of the writ lands. The petitioner has further prayed for quashing of an order dated 18th August 2021 passed by respondent no.1-State granting approval to the proposal of respondent no.6-Council, thereby permitting allotment of land in favour of respondent no.7-Trust on a long term basis.

By way of amendment, the petitioner prayed for allotment of the writ lands bearing Survey Nos.908 to 914, situated at Baramati City for any of the public purposes, if at all the said lands are not required by respondent no.6- Council in the foreseeable future either by public auction or by inviting tenders from public or by inviting applications from persons or bodies of persons eligible for allotment of plots etc. Brief facts :-

One Advocate Amarendra Dattatray Mahadik, the Executive Chairman of respondent no.7-Trust, had made an application to the President, Municipal Council, Baramati on 18th May 2021 requesting for allotment of an area of 183.90 sq.mtrs. out of lands bearing City Survey Nos.908 to 913, to respondent no.6-Council on a long term / perpetual lease at a nominal rate. The application further states that this land is required by Natraj Natya Kala Mandal, Baramati – respondent No.7, which is in existence since 1979 and is engaged in various cultural and social activities.

The said Natraj Natya Kala Mandal, respondent no.7 is registered as a Public Trust. The said Trust has arranged many public awareness programmes and conducted cultural and social activities. Presently, the trust is working from a building near ‘Teen Hathi’ Chowk, which is a land belonging to the Irrigation Department. In the said land, the respondent no.6- Council has resolved to carry a work of development and beautification of canal named as ‘Nira Dawa Kalwa’. Due to the said work, the building from which the work is being carried out is getting affected. Since the project of development and beautification of canal undertaken by respondent no.6- Council is an important project, adding beauty of the city, the Trust is ready to handover lands in its possession for the said project. Thus, after surrendering possession of the land to the Irrigation Department, the Trust needs another land. The lands bearing City Survey Nos.908 to 914 are adjacent to the earlier plot of land that was in possession of the Trust. It is further stated in the application that the land applied by the Trust is reserved for open area theater and since the applicant is also desirous to carry on similar activities, it would help respondent no.6-Council to develop the said plot of land for the purpose for which it is reserved.

Thereafter, it was realized that there is also a land bearing Survey No.914, adjacent to S.No.908 to 913 admeasuring 3,408 sq.mtrs. Another application was made on 19th May, 2021 by Advocate Amarendra Dattatray Mahadik on behalf of respondent nos.7 and 8, including land bearing City Survey No.914 totally admeasuring 3,408 sq.mtrs.

The Chief Officer of respondent no.6-Council prepared an agenda dated 20th May 2021, for the General Meeting to be held on 28 th May 2021 through video conferencing, which was published under the signature of President of the Baramati Municipal Council. In the said agenda, application of respondent nos.7 and 8 dated 18th May 2021 was listed at Subject No.18 for consideration and appropriate decision. The Chief Officer of respondent no.6-Council prepared a note on all the subjects to be discussed in the General Meeting. Accordingly, in relation to Subject No.18, the Chief Officer noted that, in the Development Plan (as per second correction) prepared for developing original limits of Baramati Municipal Council, the lands bearing City Survey Nos.908 to 914 are shown to have been reserved partly for “recreational activities and open space” and partly for “commercial purpose”. The Chief Officer recorded in the note that if land out of City Survey Nos.908 to 914 is decided to be allotted as per the provisions of Section 92 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 [hereinafter referred to as “The Act” for the sake of brevity] and Maharashtra Municipalities (Transfer of Immovable Property) Rules, 1983 [hereinafter referred to as “The Rules” for the sake of brevity], then prior approval from the State Government is necessary and therefore it would be appropriate that respondent no.6-Council take a policy decision in its General Meeting.

After getting knowledge about placing of application of respondent nos.7 and 8 in the agenda of the General Meeting, the petitioner raised objection for placing application of respondent nos.7 and 8 before the General Meeting of the Council, vide intimation-cum-notice dated 27 th May 2021, addressed to the President, Party Leader, Leader of opposition and Councilor of respondent no.6-Council, and requested to remove subject no.18 from the agenda of the meeting. It is further stated in the said notice that the subject lands are owned by the Council. It is alleged that Natraj Natya Kala Mandal is established by one of the members of the Council.

This institution, therefore, cannot derive any benefits from the Council as per law. Trust is carrying out activities arbitrarily and encroaches upon the writ land and gives such land for commercial use by charging rent. There are various such type of complaints made to the Municipal Corporation and Irrigation Department. The Baramati Irrigation Department had even issued notices to the respondent no.7-Trust for cancellation of the lease in respect of the subject land, which has been permitted to be used by the Trust. The petitioner had protested such activities and had even gone on a hunger strike, whereupon Council had assured the petitioner in writing that upon carrying out measurement the subject land would be protected by raising compound wall. The petitioner further stated that it is the prime responsibility and duty of the councilors to take care of the property of the Council, to protect financial interests of the Council as also to protect rights of the tax payer citizens and to see that the interests of the Council are not jeopardized. Petitioner has further stated that the subject land would fetch crores of rupees and he ultimately prayed that Subject No.18 may be removed from the agenda and may not be placed in the General Meeting. The petitioner further stated that even after giving notice in advance, if any resolution is passed in favour of respondent nos.7 and 8, then the petitioner would take up the matter to the court of law or approach the competent authorities for making enquiry into the matter.

On the same day, i.e. 27th May 2021, the petitioner also sent letter to the Chief Executive Officer of Baramati Municipal Council stating that the value of the writ lands is in crores of rupees and that he is ready to pay four times of the amount of rent that has been offered by respondent no.7-Trust or whatever rate is decided by the respondent no.6-Council. The petitioner has also shown willingness to use the land for the purpose for which it would be allotted by the Council by adhering to the legal provisions.

Subject No.18 was ultimately discussed in the General Meeting of respondent dated 28th May 2021. The minutes of the meeting records the discussion. One Sunil Saste, Councilor, raised objection to the application submitted by respondent nos.7 and 8 stating that he is having copy of the application submitted by respondent no.7-Trust requesting for allotment of the writ lands, however the said application is not on the letterhead of the Trust and that it does not bear any registration number. It is not clear as to what is the entity of the said Trust. The Councilor - Sunil Saste further raised objection by pointing out that during last four and a half years span, some of the Councilors have submitted many documents, but none of those had ever been placed bearing name of any Councilor in the General Meeting of the Council; however, the applications received on 18th and 19th May 2021 immediately came to be placed in the meeting scheduled to be held on 28 th May 2021. The valuation of the subject land is approximately Rs.30 to Rs.35

crores. It is further alleged by the Councilor Mr. Sunil Saste that a decision is being taken only to favour a specific institution. One more Councilor - Navnath Ballal also took part in the discussion and objected to passing of the resolution on the application of respondent nos.7 and 8. It was ultimately resolved to approve Subject No.18. It was further resolved to allot the land to respondent no.7-Trust on lease for a term of 99 years at a nominal rent and without calling for auction. It was further resolved to submit a proposal to that effect to the State Government for its approval. The said resolution came to be passed by majority.

Pursuant to passing of the resolution on the application of respondent no.7-Trust by the General Body, the Chief Officer (in-charge), Baramati Municipal Council addressed a communication to the Principal Secretary, Urban Development Department–2 vide letter Ref. No.BMC/Adm-8/95/2021 dated 22nd June 2021, stating that respondent no.7-Trust is engaged in various cultural and social activities since 1979. The Trust is carrying out various public, cultural and social activities. The Trust is also conducting personality development programmes for school-going students in the vicinity of Baramati city. The Trust is also carrying out various other activities like holding workshops for drama, conducting various projects run by the Social and Cultural Department of the State of Maharashtra, conducting ‘Tamasha Mahotsav’, ‘Kirtan Mahotsav’, Training Centers for Dance and Drama for children. The Trust has produced and organized 40 Dramas. The Trust has received awards for some of the dramas in the State Drama Competition. The Trust has also made available funds and donated the same in the form of ‘Samajik Krutadnyata Nidhi’ for heart surgeries, kidney surgery etc. Trust also assisted in rehabilitation of the flood affected people in Baramati and provided free medical services to approximately 15,000 patients during Covid pandemic by running seven Covid Centers. Trust has also been awarded with various prizes. Trust proposes to construct an Art Gallery, which would be the first Art Gallery in Baramati. The Chief Officer (i/c) of respondent no.6-Council has also annexed with the communication a chart providing information about the writ lands to be allotted to respondent Trust on long term lease. Perusal of the chart shows that Resolution No.18 has been passed by majority of 31 against 2. It further shows that the land was to be given on 99 years long term lease and at nominal rent, as per Resolution No.18 passed in the General Body Meeting. This communication has been sent through proper channel i.e. through the Collector, Pune.

Collector, Pune, on receipt of a copy of the communication dated 22 nd June 2021 of the Chief Officer (i/c), addressed a communication dated 25 th June 2021 to the Divisional Commissioner and Regional Director of the Municipal Administration Branch, Office of the Divisional Commissioner, Pune Division, Pune and thereby positively recommended the proposal with a request to the Divisional Commissioner to get the said proposal approved from the State Government.

On receipt of the proposal through proper channel, respondent no.1- State Government by a communication dated 4th August 2021 solicited information on e-mail in respect of the said proposal. Some more particulars were directed to be furnished raising doubts. It also called for clarifications. The Chief Officer (i/c), Baramati Municipal Council, vide letter dated 9 th August 2021, sent clarifications and further information as requested. It was mainly stated that though certain area of land, admeasuring about 460.80 sq.mtrs., bearing City Survey No.914 falls within the commercial zone, after excluding margin spaces from both the sides, the actual land that can be put to use would be only 85.58 sq.mtrs. and thus considering this aspect, Resolution No.18 came to be passed in the General Body Meeting.

On a query as to whether any dispute is pending as regards ownership of the writ lands, it was clearly stated that there is no dispute about ownership pending in any court of law or before any other authority. It is further stated in the chart that the lands bearing City Survey Nos.908 to 913 are included in the land bearing City Survey No.914. Therefore, the writ lands can be said to be a complete piece of land only if lands bearing City Survey Nos.908 to 914 are allotted together.

Upon being satisfied with the clarifications received from the Chief Officer (i/c) of respondent no.6-Council, the State Government, vide communication dated 18th August 2021, granted its approval to the proposal, as per the provisions of Section 92 of the Act and Rule 21 of the Rules, to the effect that out of the total land bearing City Survey Nos.908 to 914, admeasuring about 3,408 sq.mtrs., the land to the extent of 2,947.20 sq.mtrs. only can be allotted to respondent Trust for 30 years lease, as the same is reserved for recreational activities and open space purposes, and the remaining land admeasuring about 460.80 sq.mtrs. is shown to have been reserved for commercial purposes. While granting approval to the proposal, the State Government relaxed conditions provided under Section 7 of the Rules by exercising powers under Section 26 of the Rules of 1983 and subject to following terms and conditions, granted approval for allotment of the writ lands to respondent no.7-Trust :- (i) The land admeasuring about 2,947.20 sq.mtrs. is being allotted on lease for a period of 30 years. The Municipal Council shall fix the amount of nominal rent by exercising its discretion, as provided under Rule 21 of the Maharashtra Municipal Council (Transfer of Immovable Property) Rules, 1983. (ii) The use of the proposed land shall be in accordance with the approved Development Control Rules and while carrying out construction on the proposed land, respondent no.7-Trust shall take necessary permission of the competent authority, as required under the provisions of Maharashtra Regional and Town Planning Act, 1966. (iii) The Collector shall make sure that the proposed land is being used for the purpose for which it is allotted and shall take review of the same from time to time. If it is found that the land allotted is not being used for the purpose for which it was allotted, the Collector shall immediately make a report to the State Government. (iv) While executing a lease agreement with the respondent no.7-Trust, the respondent no.6-Council, if found necessary, may impose any other terms and conditions.

Though respondent no.6-Municipal Council by Resolution No.18 recorded that the land may be allotted on 99 years lease, the request made in the application is for allotment of land on long term lease at a nominal rent. Submissions of the Petitioner :-

The petitioner, on the aforesaid background of the facts, has challenged the Resolution No.18 passed by respondent no.6-Municipal Council dated 28th May 2021, thereby granting approval to the application dated 19 th May 2021 of respondent nos.7 and 8 seeking allotment of lands bearing City Survey Nos.908 to 914 for the purpose of “Open Air Theater”, and the order dated 18th August 2021 passed by the State Government granting approval to the said allotment. The petitioner, in view of subsequent events, has added prayer clause (K) and requested that the petition be dealt with accordingly.

The principal ground raised by the petitioner is that the action of the Council of passing of Resolution No.18 itself is arbitrary. The resolution is passed only with a view to favour respondent no.7-Trust. It is alleged that the Trust is unduly favoured because of proximity of respondent no.8 with the then Dy. Chief Minister. The resolution is not passed in transparent and prescribed procedure by inviting tenders and/or by holding auction. The petitioner further submits that allotment of the writ lands is clearly in violation of Rule 7 of the rules framed under Section 92 of Act and Rules. The application filed by the Trust is not in a proper form since it is not submitted on the letterhead of the Trust. It is not clear in what capacity the respondent no.8 had signed the application for and on behalf of respondent no.7-Trust. The application is also not supported by any resolution passed by the Trust. Initially, by an application dated 18th May 2021, a request was made for allotment of the lands bearing City Survey Nos. 908 to 913, admeasuring about 183.90 sq.mtrs.; however, subsequently, by the second application dated 19th May 2021, a further request was made for allotment of the land bearing City Survey No.914, along with lands bearing City Survey Nos.908 to 913, admeasuring about 3,408 sq.mtrs. Though it is stated that the respondent no.7-Trust is established in the year 1979, in fact, the Trust is established in the year 1989. The petitioner further submits that the writ lands were reserved for recreational purposes. There was no material available along with the application to show that the Trust is carrying out activities as stated above. He further submits that in view of Section 16 of the Act, there is a prohibition and allotment of land cannot be made in favour of any Member of the Municipal Council.

The petitioner, to substantiate the grounds of challenge, pointed out the events occurred within a short span of time. The agenda of the General Body Meeting No.1 of respondent no.6-Council, scheduled to be held on 28 th May 2021, was prepared on 20th May 2021. An application was accepted from respondent nos.7 and 8 just a day before i.e. on 19 th May 2021. Though in Subject No.18 on the agenda, the area of plot of land to be allotted is shown as

183.90 sq.mtrs., however, in effect, the area of the lands allotted is admeasuring about 3,408 sq.mtrs., as can be seen from Resolution No.18. In the petitioner’s notice dated 27th May 2021 itself, the petitioner has clearly indicated malafides on the part of the respondent no.6-Municipal Council and respondent nos.7 and 8.

The petitioner further submitted that originally the lands were shown to have been reserved partly for “recreational activities and open space” and partly for “commercial purposes”. However only to facilitate Trust, the purpose of the land is changed and later-on, a resolution has been passed and the proposal has been sent to the government for change of the user.

Petitioner thereafter pointed out conduct of the Chief Officer of the Municipal Council. The learned Chief Officer has prepared a note, in which he has mentioned that the Trust carried out various activities without there being any material submitted along with the application. On a question being posed to the Chief Officer as to how and from where the Chief Officer got knowledge of the activities of the Trust and that the Trust has received various prizes, he informed that the Trust has conducted various workshops and also opened seven Covid Centers during the pandemic. The petitioner further states that the Chief Officer of the Municipal Council has clearly acted at the behest of some other person and has not taken into consideration interest of the Municipal Council.

It is the submission of learned Advocate for the petitioner that respondent no.7-Trust has become dysfunctional. The Trust does not have capacity to conduct the activities for which the land has been allotted. The Trust did not even file audit reports regularly. The change report and audit reports were not available since 1996. It is the note of the Chief Officer, which states various activities carried out by the Trust. If there was a material available, the respondent no.6-Municipal Council could have placed the same in the General Body Meeting.

It is further submitted by learned counsel for the petitioner that the proposal received from the Municipal Council with positive recommendation sent report to the State Government only on the basis of the Chief Officer’s report and no information to that effect has been gathered independently by the Collector. The learned counsel for the petitioner further states that when the petitioner solicited information under the Right to Information Act as regards the Trust, he has been provided only with two pages information. In view thereof, the petitioner submitted that without detailed information being available, Collector and the Chief Officer have sent a proposal. It is not clear as to from where these officers received information. As regards the queries raised by the State Government vide its letter dated 4 th August 2021, the learned counsel for the petitioner states that those queries were raised by the State Government pursuant to complaint filed by the petitioner only with a view to create a farce that explanation has been called for on the said issue.

The learned counsel for the petitioner further states that there is already a Public Interest Litigation filed in this court in respect of the writ lands on 3rd September 2021 being Public Interest Litigation No.96 of 2021. The present petition is filed as PIL on 2nd September 2021 and the same is allowed to be converted into Writ Petition by this court on 20 th December

2021. Thus, respondent no.6-Municipal Council was well aware about filing of PIL. However, while answering the query raised by the State Government at sr.no.6 in its communication dated 4th August 2021, as to whether any dispute is pending in any court of law or before any competent authority in relation to ownership of the writ lands, the learned Chief Officer (i/c) of the respondent no.6-Municipal Council stated that there is no such dispute pending in respect of the writ lands in any court of law or before any competent authority.

In view of the subsequent developments, the petitioner has challenged the further action taken by the State Government, by which the government has accepted Resolution passed by the Municipal Council for change of user. Pursuant to the said resolution, the purpose/use of the writ lands has been changed to “public/semi-public purposes”. Thus, change in purpose was only with a view to favour the Trust. As regards action of the State Government in accepting proposal for allotment of the writ lands, the learned counsel for the petitioner submits that the government could have remanded back the proposal to the Municipal Council since part of the land admeasuring 460.80 sq.mtrs, out of the total land admeasuring 3,408 sq.mtrs., has been reserved for commercial purpose. The State Government has modified the proposal on its own and permitted to allot the lands to the extent of 2,947.20 sq.mtrs. A minor modification was thereafter carried in the Development Plan, as was proposed by Municipal Council, and reservation of the land is shown to have been for “public / semi-public purposes”. A resolution to that effect came to be passed much after the land was allotted, which clearly evidences that Trust is unduly favoured.

It is further submitted by learned counsel for the petitioner that if State Government is intending to change the purpose of the land, then it could have obtained necessary permission from the court since the matter was pending before this court or at-least the writ lands could have been allotted subject to final outcome of the petition. However, without adopting any such course of action, the State Government has accepted the proposal and changed the purpose of the land.

Perusal of the record shows that while carrying out minor modifications, the State Government had called for objections and pursuant thereto, the present petitioner has also raised objection.

The learned counsel for the petitioner further submits that, firstly, when the land has been reserved for “recreational purpose”, the reservation of the said land could not have been changed to “public / semi-public purpose” and, secondly, since reservation of the land has not been changed till the application of respondent Trust was considered by respondent no.6- Municipal Council, the land could not have been allotted to the Trust. The change in purpose for which the land is to be allotted is clearly in violation of Regulation 11(1) of the Development Control & Promotion Regulation-2034 (“DC Regulation”). On legal submissions, the learned counsel for the petitioner states that the respondent no.6-Municipal Council has no authority to transfer the land in this fashion in view of Section 92 of the Act. He further submits that under Rules 2 and 4 of the Rules, the land which is not required by the Municipal Councils only can be transferred.

In view of Rule 7, the respondent no.7-Trust is not eligible for allotment of the writ lands.

The learned counsel for the petitioner has further pressed into service newly added prayer clause (K). By this prayer, the petitioner has prayed that if the lands in question are not acquired by respondent no.6-Municipal Council, then the allotment of the said lands be done by holding public auction or by inviting tenders through public advertisements or by inviting applications from persons eligible for such allotment on a predetermined premium or consideration or otherwise by following the procedure prescribed under Rule 7 of the Rules. The petitioner has also made reference to his letter dated 27th May 2021 addressed to the Chief Officer of the Municipal Council. By the said communication, the petitioner apprised the Council that he came to know about placing of subject of allotment of lands, bearing City Survey Nos.908 to 914, to respondent Trust on long term lease at a nominal rent, in the General Body Meeting of the respondent no.6- Municipal Council to be held on 28th May 2021. The petitioner further stated in the said communication that if Municipal Council is offering the said lands on long term lease at a nominal rent, then he is well aware of the valuation of the said lands considering the location at which these lands are situated and that he is ready and willing to pay four times more rent than that will be offered by respondent nos.7 and 8. It is in this set of facts that the learned counsel for the petitioner has further submitted that when the Municipal Council could have been benefited more as the writ lands had not been allotted by holding public auction or by following the procedure as prescribed under Rule 7 of the Rules, still the application dated 19th May 2021 of Advocate Amarendra Mahadik, who was not even office bearer of respondent Trust has been considered by respondent the Municipal Council. Learned counsel for the petitioner has produced on record the information received pursuant to application filed under the Right to Information Act, 2005. He applied for a copy of the application submitted by and on behalf of the Trust in the office of the Assistant Charity Commissioner, Pune showing the names of the trustees. Perusal of the said application shows that name of Advocate Amarendra Mahadik does not appear in the list of the trustees of respondent Trust.

The learned counsel for the petitioner has further relied upon Section 16 of the Act, which provides for disqualification for being a Councillor and as per one of the conditions for disqualification is that the Councillor shall not derive any benefit from the Municipal Council. In these circumstances, no land could have been allotted to a Trust in which respondent no.8, who is a Councillor, is a President. Learned counsel for the petitioner has further pointed out that there is no post of Executive Chairman in respondent no.7- Trust and thus there was no question of signing the application for allotment of the writ lands by Advocate Amarendra Mahadik, posing himself to be Executive Chairman of the Trust.

Our attention is invited to Rule 9 of the Rules, which provides for mode of fixation of premium while disposing land by public auction or by inviting tenders. Further attention is invited of this court to Rule 10, which provides for the conditions of lease, wherein again premium is provided. It is submitted that State Government could not have allotted writ lands by invoking the powers under Rule 21 or by granting relaxation as provided under Rule 26 of the Rules.

Mr. Talekar, the learned counsel for the petitioner has thereafter brought to the notice of this court as to what constitutes “recreational parks, garden, open space, children play ground etc.” under Development Control Rules prepared under the Maharashtra Regional and Town Planning Act. He ultimately prayed that Resolution No.18 passed by respondent no.6- Municipal Council, resolving to grant approval to the application of respondent Trust and accordingly send proposal to the State Government for allotment of writ lands to the Trust, and the order dated 18 th August 2021 passed by respondent no.1-State Government granting approval to the proposal of the respondent-Municipal Council for allotting writ lands in favour of the Trust on a long term lease at a nominal rent, be quashed and set aside.

By subsequent prayer, the petitioner has prayed that this court may direct Municipal Council to allot the writ lands by holding public auction or by inviting tenders through public advertisements or by inviting applications from the persons eligible for allotment of the lands by following procedure prescribed under Rule 7 of the Rules. Submissions in support of PIL :-

We have also heard submissions of Mr. Sushant Prabhune in PIL No.52 of 2001. At the outset, he submits that the application made by respondent no.7-Trust for allotment of land is for the purpose of “Open Air Theater”. He has invited attention of this court to the queries raised by the State Government in relation to the proposal for allotment of land submitted by the Municipal Council, in which query no.2 was specific as to whether the land is required by the Municipal Council for any other purpose. The learned counsel submits that only the land which is not required by the Municipal Council can be allotted. Though the application states that the land is required for Open Air Theater, the purpose for which the land has been reserved does not say so. He further submits that the petitioner had obtained information under the RTI information supplied shows that construction of an auditorium within the municipal limits has already been proposed and as such another Kaladalan or auditorium is not required.

We have heard the submissions of Mr. R.A. Thorat, learned Senior Advocate for the respondent-State. He has restricted his arguments to prayer clauses (C), (D), (H) and (I) as these prayers are concerning with the respondent-State. He submits that the State Government has taken a decision by exercising powers vested in it under Rules 21 and 26 of the Rules. He submits that none of these rules have been challenged in this petition. It is further submitted that the dates on which various events took place are material in this case. He has invited attention of this court to the communication dated 9th August 2021 by the Municipal Council to State and submits that in March 2001, the adjoining plot of land, admeasuring 819.45 sq.mtrs., was allotted to respondent Trust by Maharashtra Krishna Valley Development Corporation (“Krishna Valley”). In May 2021, the Trust received a letter from Maharashtra Krishna Valley Corporation seeking possession of the said land for widening of ‘Nira Dawa Kalwa’. The said plot of land was situated on the bank of Nira Dawa Canal. On 10th June 2021, the Trust handed over possession of the said land to Krishna Valley. Thereafter, the Trust made an application on 18th May 2021 seeking allotment of lands bearing City Survey Nos.908 to 913 and again by an application dated 19 th May 2021, the Trust has requested for allotment of the aforesaid lands including land bearing City Survey No.914. The learned counsel for the respondent-State further states that in both these applications, it is clearly stated that if the aforesaid lands are allotted to the Trust, the purpose for which the lands have been reserved would be served. He further states that as the said lands were reserved for the purpose of “open air theater” and as the said work was to be carried out by Municipal Council, it would fulfill the object of the Municipal Council.

The learned counsel further submitted that as a matter of fact there was material available with the State Government, in the form of resolution passed by the Municipal Council, while considering the proposal in the case of the Trust and the Collector, Pune and the Divisional Commissioner, Pune also have positively recommended the proposal. As regards Section 92 of the Act , the learned counsel for the respondent-State submitted that the said section provides for transfer of immovable property by a Municipal Council. Sub- sections (1) and (2) of Section 92 states that no Council shall transfer any of its immovable property without a sanction of the State Government and it is for the State Government to consider whether to sanction a proposal, subject to condition that a proposal should be moved and should be accompanied by a resolution of the Municipal Council passed in its meeting by a majority of not less than 2/3rd of the total number of councillors.

The learned counsel for the respondent-State has further pointed out that the Municipal Council was directed to execute an agreement with the Trust, subject to imposing terms and conditions, as provided in the agreement dated 25th January 2001. Three main conditions in the agreement were that :- (i) upon completion of the term of the agreement, the possession of the subject land shall be handed over by respondent no.7-Trust to the Executive Engineer, Irrigation Department, Pune and no compensation in lieu thereof shall be claimed by the Trust; (ii) in case Maharashtra Krishna Valley Development Corporation requires the subject land before completion of the agreement term, it would be binding upon the Trust to immediately handover possession of the subject land to Maharashtra Krishna Valley Development Corporation and the Corporation will not be responsible for any monetary losses that would be suffered by the Trust pursuant to handing over possession of the land; (iii) the subject land cannot be used for the purposes other than the purpose for which it was allotted; and

It is clear from record that the respondent no.5-Collector was directed to make sure that the proposed land is being used for the purpose for which it has been allotted and shall take review of the same from time to time. If it is found that the land allotted is not being used for the purpose for which it was allotted, the Collector shall immediately make a report to the State Government. Thus, a strict adherence to the conditions imposed was expected. From the agreement executed between respondent no.6-Municipal Council and respondent Trust dated 8th September 2021, it can be seen that all the necessary conditions have been incorporated in the said agreement.

The learned counsel for the respondent-State has pointed out that Commencement Certificate has also been issued by respondent no.6- Municipal Council on 1st October 2021. Even in the Commencement Certificate, there are necessary conditions mentioned including that if construction is to be made, it should be strictly in accordance with Section 193 of the Act and Section 45 of the Maharashtra Regional and Town Planning Act (hereinafter referred to as “the MRTP Act”) . The learned counsel has further pointed out that the Notification dated 5 th April 2022 is also not challenged by the petitioner.

While canvassing his points, the learned counsel for the respondent- State submitted that in view of Rules 14 and 21 of the Act and the Rules, which are specific in nature, in fact, no reference was necessary to Rule 26. Rule 21 provides for grant of land for educational, charitable and public purposes. In this case, the purpose for which the land was required is not falling under Rule 7 and therefore there was no question of following mandate of Rule 7. In view of the provisions of Rule 24, which provides for additional conditions to be annexed to concessional grant of land, the respondent-State has imposed additional conditions since the land was to be allotted at a concessional rate. To a query raised by the court that undue haste is observed in the entire process of allotment of subject land, the learned counsel for the respondent-State fairly states that he is not disputing the dates on which events took place in the entire process. He has mainly relied upon the aspect that the procedure prescribed under the rules has been followed and submitted that ultimately a decision has been taken in the interest of general public. He further submits that every decision taken by the government may not be viewed suspiciously. In this case, as a matter of fact, the State Government has considered the material on record. The learned counsel for the respondent-State has further pointed out that, though it is technical, in fact, the petition is incomplete as it has not challenged the rules or the procedure that has been adopted in the entire process of allotment of land. He has further pointed out that the petitioner has also not challenged the proceedings initiated under Section 37 of the MRTP Act, though he had very well participated in those proceedings by raising an objection. In view of the aforesaid submissions, the learned counsel for the respondent-State prayed for dismissal of the petition.

We have heard Mr. Sudeep Nargolkar, the learned Advocate for respondent Municipal Council. He has submitted that action of the Municipal Council or the State Government cannot be said to be exercised in arbitrary manner. It does not amount to abuse of power at all. Merely because there is no auction, the action could not be necessarily said to be arbitrary action. The petitioner has challenged, firstly, the proposal sent by the Municipal Council and, secondly, exercise of power under Section 37 of the MRTP Act. Under MRTP Act, the State Government has given authority to exercise powers under Section 37. Such authority vests in the Planning Authority. The Municipal Council being the Planning Authority had given a public hearing including the petitioner. The learned counsel has further pointed out that the purpose defined as “public / semi-public” also is a reservation under the MRTP Act. Considering the exercise that has been carried out by following the due procedure, the court may not interfere in the matter lightly.

The learned Advocate vehemently argued his case. At the outset, he submitted that all the allegations made in the petition are vague and the basic foundation is lacking. From the record, he pointed out that the proposal was sent along with all necessary documents. No other person or the body of persons can have possession of the documents, which were produced along with the proposal. Respondent Nos.7 and 8 have specifically denied the allegation that the application for allotment of land was made without furnishing necessary documents and was only a formal application. He further submits that neither Municipal Council nor Collector can have custody of these documents. He thus vehemently denied the allegation that the application was made casually, without furnishing the necessary documents. All necessary documents were produced at the time when the same were demanded. Municipal Council had directed the Trust to produce certain documents on record such as audit report etc. The audit report so demanded was submitted for the year 2014. It is on record that the Trust has produced and organized 40 Dramas and the Trust has received awards for some of the dramas in the State Drama Competition; made available funds and donated the same in the form of Samajik Krutadnyata Nidhi for heart surgeries, kidney surgery etc.; assisted in rehabilitation of the flood affected people in Baramati and; provided free medical services to approximately 15,000 patients during Covid pandemic by running seven Covid Centers. The material in relation to the aforesaid activities cannot be said to have been prepared overnight. It is also pointed out various other activities conducted by the Trust and budgetary provisions made in relation thereto. From a copy of the Sovenier published in the year 2010-11 giving brief history of the various activities conducted by the Trust shows that the Trust is actively engaged in conducting various activities and that the Trust has good reputation. The members/councillors of the Municipal Council being local persons, they are very well aware about the activities conducted by the Trust from time to time.

Mr. Kulkarni, learned Advocate for respondent no.7-Trust submits that in the present case there would be practically no change of the purpose etc. There will be no denial of access to the general public at all. He states that the access would be given to the public at large. From clause no.6 of the Lease Agreement dated 8th September 2022, he points out that it is clearly mentioned that access would be given to all. It is also clearly stated in the said clause that the land would be put to use in consonance with the sanctioned Development Plan of Baramati City and that the respondent no.7-Trust has to obtain permission, as per the provisions of Regional and Town Planning Act, 1966, from the competent authority while carrying out construction on the said land.

The submissions made in relation to the Unified Development Control and Promotion Regulations for Maharashtra State (“UDCR”) are not pleaded in the petition and the respondents 7 and 8 have been taken by surprise. The arguments with regard to violation of UDCR are totally beyond the pleadings. He submitted that the construction on the earlier site allotted to the respondent Trust was not possible because of the orders passed by this court in PIL and the said PIL is still pending. It is for this reason that the land was required to be given back to Maharashtra Krishna Valley Development Corporation. Even notices dated 10th September 2018 and 12th February 2019 and a communication dated 26th March 2019 were received by the Trust from the Irrigation Department, Baramati so that there will not be any use of the land made for construction of school. It is further submitted that only shed was erected on the subject land, which in the opinion of the authorities was for commercial purpose.

To criticize the submissions of the petitioner that there was no sufficient discussion taken place while passing the impugned Resolution No.18, it is submitted that Resolution No.18 has been passed by the members of the Municipal Council as per their free will and that it is not the requirement of law that before voting, the councillors must discuss the subject. Allotment of land is not in the hands of the Municipal Council alone. The decision taken by the Municipal Council, is not a final decision. Considering the nature and the purpose for which the land has been allotted, it does not attract the provisions of Rule 7 of the Rules, as the land is not allotted for any commercial purpose.

Construction on the lands allotted to the Trust by Maharashtra Krishna Valley Development Corporation, was not made as there was a stay granted by this court in a Public Interest Litigation No.52 of 2001 (Shyamsunder Potare and Ors. Vs. State of Maharashtra and Ors.) since 2001. The petitioner had never made any demand for allotment of the subject land on lease and it is only after Subject No.18 was moved and Resolution No.18 came to be passed, the petitioner has offered to pay four times rent than that would be paid by respondent no.7-Trust.

In order to discharge the social responsibilities, the Municipal Council is expected to develop the land and utilize the same for the purpose for which the land has been reserved. The authorities have rightly considered this aspect by allotting the subject lands in favour of the Trust.

The Municipal Council had sought certain information from the trust, such as details of the Trust, registration documents, Trust Deed, details of the properties held by the Trust, Audit Reports etc. The entire material was produced by the Trust on demand made by the Municipal Council. The members of the Trust may be the persons from commercial zone or may be from business or political life. Merely because the members of the Trust happen to be belonging to some party in their personal capacities does not disqualify the Trust from carrying out the activities or will not dis-entitle the Trust from receiving any land etc. In addition to the earlier material, the learned counsel has also brought to our notice the material showing activities conducted by the Trust in social, medical and other fields, especially the medical services provided by the Trust during Covid pandemic. There are photographs of the site to show that the subject land is open to all. The Trust was desirous of establishing an Art Gallery and since the subject land has been reserved for the same purpose, there is no illegality caused in the entire process of allotment of lands. Submissions in response to PIL No.96 of 2021.

Mr. Thorat, learned Senior Advocate appearing for the respondent- State made submissions in reply to the PIL/96/2021. The complaint referred to and filed by the petitioner is dated 16th August 2021, whereas the order passed by the State Government on the proposal for allotment of land to respondent Trust is dated 18th August 2021. Thus, the contention that the complaint was not considered does not hold any merit as it is not clear as to whether the complaint dispatched on 16th August 2021 in fact reached the concerned authority of the State Government before the decision was taken on 18th August 2021. Rules 4 and 7 of the 1983 Rules needs to be read with Section 92 of the Municipal Council Act. Main requirements of Section 92 are that (i) the transfer must be with the sanction of the State Government and (ii) there has to be a proposal accompanied by a resolution of the Council passed at a meeting by 2/3rd majority. Both the conditions are fulfilled. Reliance on Rule 4 of the Rules is not material in this case as it is only a general rule. The Municipal Council is the sole authority to decide the purpose and the requirement for which the land is to be utilized. He elaborated further that even Rule 7 is a general rule. It provides for transfer of land for commercial purpose. Rule 21 is under Part VI of the Rules, which is for a different purpose, under the head of “Grant of Land for Educational, Charitable and Public Purposes”. Thus, it cannot be equated with the allotment of land under Rule 7, which falls in Part “III” of the Rules under the heading “Manner of Disposal of Land”. In case of allotment of land under Rule 7, this court may put certain conditions since interest of the general public is going to be served by allotment of subject land to the Trust.

Mr. Nargolkar, learned counsel for respondent no.6-Municipal Council, in reply to the PIL, has submitted that the Trust has produced on record certain material along with its affidavit-in-reply, which was sufficient to consider the application of the Trust. There were various news articles published during period the work was being carried out by the Trust and the same was also annexed to the application. There were letters appreciating the work carried out by the Trust in Baramati City. There are total 23 gardens developed in Baramati either by the Municipal Council or by other entities. 13 gardens are proper gardens whereas 10 are layout gardens.

The learned counsel for the Municipal Council further submits that Rule 7 of 1983 Rules is in two parts and applied to totally different causes. Under Rule 7, there is no allotment for the purpose of social or cultural activities. Part VII of the 1983 Rules deals with miscellaneous provisions. Part IV provides for mode of fixation of premium. Thus, different parts deal with different purposes. Part VI deals with grant of land for religious, educational, charitable and public purposes. He submits that disposal of the land and grant of the land are totally different issues. Disposal of the land is construed as surrendering ownership of the land permanently; whereas grant of the land is construed as not giving up ownership of the property. In the later cases, the ownership remains with the Municipal Council. In the case at hand, since the purpose for which the land has been allotted was for public amenity, it is only Rule 21 which is applicable in the present case. There need not be any relaxation of rules required, as provided under Rule 26. Lease Agreement shows that the lands allotted to the Trust are open to all. There is already a board put up at the construction site stating that the Art Gallery is open to all and the entry is free. While granting approval to the allotment of land itself, the consequences have been provided for violation of the terms and conditions.

The Municipal Council has also produced on record a list of the gardens, giving names of the gardens in Baramati City. Although the objection has been raised by Advocate for the petitioner to the said list of gardens saying that no such document can directly be tendered before the court or relied upon by the counsel, during the course of arguments, the learned counsel for the petitioner has made a statement that there are only two gardens in the city without any materials. Mr. Nargolkar further submitted that the queries raised by the respondent-State were properly answered by the Chief Officer of the Municipal Council. In answer to the query put up by the State as to whether the subject lands to be allotted are to be allotted for the purpose for which they were reserved, it was made clear that the land admeasuring

460.80 sq.mtrs. out of City Survey No.914 is not available for allotment since the same has been reserved for commercial purpose. The learned counsel has further pointed out from the rules framed under the MRTP Act that, in fact, there is no change of purpose/user for which the land has been reserved. He states that there is a change of designation of the user only.

While elaborating the difference between the “reservation” and “designation”, the learned counsel has submitted that if reservation is for “school”, it is called as “reservation”. When a school is specified as “primary school” or “secondary school”, then it would be a “designation”. In this case it is not a “reservation” but only a “designation”. While answering to the query that already there is an auditorium in Baramati city and that another auditorium is not required, the learned counsel for the Municipal Council submits that it is not open for the petitioner in PIL/96/2021 and the petitioner in the present petition to decide as to how many auditoriums are required or necessary in Baramati city or to approach the court of law for the said purpose. The concerned authority is the Planning Authority, who decides necessity or requirement of amenities. In the lands that have been allotted to the Trust, the Trust is constructing an Art Gallery, where exhibitions can be held. The purpose and object of the MRTP Act is only to have a planned development. Section 53 of the MRTP Act would show that the building and structure can be erected without permission and without prior application. Application for regularization can be filed even after the construction is completed. While regularizing the construction, the only requirement is to see that the construction is in consonance with the prescribed rules. The learned counsel for the Municipal Council also invited our attention to Clause 3.4.7 of the UDCPR and states that the building permission was duly sanctioned, as permissible under UDCPR. Clause 4.10 provides for “Public / Semi Public Zone”, as per sub-clause (v) of the said clause, “Public / Semi Public Zone” includes Libraries, Mangal Karyalayas, Gymnasia, Gymkhanas, Stadia, Community Halls, Civic and Cultural Centers, Religious Structures, Auditoria etc. Thus, he submits that there is no violation even of the rules framed under the MRTP Act or the Development Plan under the MRTP Act. The judgments on which reliance has been placed by the Advocate for the petitioner are only in relation to Rule 7 of the Rules. In this case the State Government has invoked powers under Rule 21.

The main argument in PIL/96/2022 as also in the present petition is that the Municipality is deprived of revenue and profit since the lands have not been allotted by holding an auction. Mr. Nargolkar submitted that auction is for maximization of profit. The legislature has consciously placed Rules 7 and 21 of the Rules in different chapters, that every allotment cannot be viewed or granted with the object of commercialization. It is for this reason, Rule 21 provides that where lands are allotted for the purposes other than commercial purpose, profit is not the motive at all. While considering a proposal for allotment of land on lease basis by the State Government, it was sufficient that such proposal is backed by a resolution appropriately passed by the Municipal Council. As regards the contention of the petitioner that application submitted by the Trust is not on the letterhead of the Trust, it is stated that it is only for the Trust to raise such objection if someone uses the name of the Trust without its consent and authority. Here in the case at hand, the Trust has, in fact, acted upon pursuant to filing of the application and therefore it is not open for any other person like the petitioner to question the authenticity of the application. Arguments in rejoinder in WP No.9498 of 2021 :-

Mr. Talekar, learned counsel for the petitioner has argued in rejoinder. He has relied upon Sections 22 and 50 of the MRTP Act to submit that construction is not in consonance with the scheme of the Act. In view of Section 50 of the MRTP Act that unless the reservation of the land is deleted, no further development could be done. The Development Control Rules are in the nature of sub-delegation and therefore statutory provision will prevail upon the D.C. Rules. There has to be a request from the authority on the aspect as to whether the same area is required or not. There is no sanction granted by the State Government to delete the reservation of the land prior to its allotment. The reservation of the land has been deleted after carrying out construction. The deletion is ultimately sanctioned in the year 2022, by which time the construction of the building was complete.

So far as the judgments relied upon by the Trust are concerned, the learned counsel for the respondent-State submits that those were in respect of the contracts or the largesse granted by the State Government, which are referable to the powers under Articles 298 and 299 of the Constitution of India. Those are the cases of contracts entered into by the State Government. The learned counsel for the respondent-State submits that in the case at hand, a particular institution is picked up without inviting more persons and that there may be many more such institutions, which could have shown interest in the lands which have been allotted to respondent no.7-Trust. He states that the only judgment that can be taken into consideration or made applicable in the present case is in the case of Pragati Mahila Mandal, Nanded Vs. Municipal Council, Nanded and Ors.1. It was a case of rental compensation. However, in that case, the allotment of land was also subject matter of a Civil Suit, which was dismissed and the said order had attained finality in the Hon’ble Apex Court and therefore, on facts, this case cannot be made applicable to the facts of the present case.

In support of the case of the petitioner, the learned Advocate Mr. Talekar has relied upon the following judgments :- 1 (2011) 3 SCC 464 (i) Zenit Metaplast Pvt. Ltd. Vs. State of Maharashtra and Ors.2 (ii) Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and Ors.3 (iii) Humanity and Anr. Vs. State of West Bengal and Ors.4 (iv) Institute of Law, Chandigarh and Ors. Vs. Neeraj Sharma and Ors.5 (v) Transport Nagar Free Zone Co-operative Society Ltd. Vs. Nagpur Improvement Trust and Anr.6 (vi) Chandra Prakash Vs. State of Rajasthan and Ors.7 (vii) Bangalore Medical Trust Vs. B.S. Muddappa and Ors.8 (viii) Purushottam Vs. State of Karnataka and Ors., along with connected matters9 (ix) Municipal Corporation of Greater Mumbai and Ors. Vs. Kohinoor CTNL Infrastructure Company Pvt. Ltd. and Anr.10 (x) Harijan Layout Sudhar Samiti and Ors. Vs. State of Maharashtra and Ors.11 (xi) Anjuman E Shiate Ali and Anr. Vs. Gulmohar Area Societies Welfare Group and Ors.12 (xii) Superintendent & Legal Remembrancer State of West Bengal Vs. Corporation of Calcutta13 2 3 4 5 6 7 8

O R D E R (i) (ii) Writ Petition No.9498 of 2021 is dismissed. Public Interest Litigation No.96 of 2021 is dismissed. (iii) Rule is discharged. (iv) No order as to costs. [ KISHORE C. SANT, J. ]

[ PRASANNA B. VARALE, J. ]