High Court
Facts
1 WP.8782-18 & anr.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8782 OF 20181.Shivaji S/o. Sambhaji Khule,Age : 61 years, Occu. Labourer, R/o. Indiranagar, Sangamner,Tq. Sangamner,District : Ahmednagar.2.Jalindar S/o. Kacharu Lahamge,Age : 47 years, Occu. Labourer, R/o. Vidyanagar, Sangamner, Tq. Sangamner,District : Ahmednagar.3.Purushottam S/o. Bisanlal Joshi,Age : 50 years, Occu. Labourer, R/o. Bazar Peth, Sangamner, Tq. Sangamner, District : Ahmednagar.4.Shivaji S/o. Gavram Kasar,Age : 38 years, Occu. Labourer, R/o. Janatanagar, Sangamner,Tq. Sangamner, District : Ahmednagar.5.Sunil S/o. Baburao Khare,Age : 60 years, Occu. Labourer, R/o. Rangargalli, Sangamner, Tq. Sangamner, District: Ahmednagar.6.Goraksha S/o. Yashwant Rahane,Age : 34 years, Occu. Labourer, R/o. Krushnanagar, Gunjalwadi, Sangamner, Tq. Sangamner, District : Ahmednagar.…PetitionersVERSUS1.The State of Maharashtra,Through its Chief Secretary, Road Transport Department, Mantralaya, Mumbai-32.
Legal Reasoning
12 WP.8782-18 & anr.odtordinary jurisdiction under Article 226 of the Constitution ofIndia. 14.After examining the record with able assistance of therespective learned counsels, we find that the shops reserved forthe disabled persons were apparently allotted to respondentNos.6 to 9 in contravention of the action plan of theGovernment. Allotting the tenaments on concession is notshowing the mercy upon such person. Their physical disabilityshould be borne in mind while allotting the tenaments.Therefore, the Government has correctly laid down thecondition in the action plan that the tenaments should beallotted to such persons in the front and at convenient place inthe project. As per this action plan, if there are morecandidates than the tenaments reserved, the allotment shouldhave been done by a lottery. But, the facts reveal that makingthe reason of the ahead denying the shops on the first floor, thecontesting respondent/MSRTC unauthorisedly and illegallyauthorized respondent No.10 to take the decision and allot theshops to respondent Nos.6 to 9. No procedure laid down in theaction plan has been followed. Therefore, the allotment of theshops to respondent Nos.6 to 9 are apparently illegal and notbinding upon the petitioners. We are satisfied that the 13 WP.8782-18 & anr.odtpetitioners were the persons who put their rights into actionand after a great battle they could succeed to establish that thescheme and the provisions of the Act also apply to the buildingconstructed by the MSRTC. If the claimants are more than thetenaments, the respondent/MSRTC should have allotted it bylottery. Therefore, we do not find substance in the argument ofthe respondents that since the claimants were six andtenaments were five, they were fighting amongst themselves.After scanning the facts of the case and reading the relevantprovisions of law, we are of the opinion that the writ petitiondeserves to be allowed. Hence, the following order :O R D E R(i)Writ petition is allowed. (ii)The petitioners with disability are entitled to theallotment of the tenaments to the extent of thereservation i.e. 3% of the total tenaments on thefront side of the building/premises.(iii)The contesting respondents/MSRTC is directed toproceed with for the allotment of the tenamentsby taking care of the rights of respondent No.10on the ground floor and the front side.
Arguments
2 WP.8782-18 & anr.odt2.Maharashtra State Road Transport Corporation,Through its Managing Director,Central Office, Maharashtra Transport Bhavan,Dr. Anandrao Nair Road,Mumbai-400 008.3.Maharashtra State Road Transport Corporation,Through its Chief Engineer, Central Office, Maharashtra Transport Bhavan,Dr. Anandrao Nair Road,Mumbai-400 008.4.Maharashtra State Road Transport Corporation,Through its Divisional Controller,Ahmednagar Division, Central Bus Stand, Ahmednagar.5.Depot Manager,Sangamner Bus Stand, Sangamner,District: Ahmednagar.6.Suresh S/o Dadasaheb Kokane,Age : 39 Occu. Business,R/o Dhandarphal (Kh.),Tq. Sangamner Dist. Ahmednagar.7.Anil S/o Gulabrao Walwe,Age : 36 yrs., Occu. - Business,R/o Dhandarphal (Bk.)Tq. Sangamner Dist. Ahmednagar.8.Machhindra S/o Shrikisan Katore,Age : 45 Occu. - Business,R/o Sangvi, Dhandarphal (Kh.),Tq. Sangamner, Dist. Ahmednagar.9.Devidas S/o Bhaskarrao Deshmane,Age : 37 yrs., Occu. - Business,R/o Dhandarphal (Bk.),Tq. Sangamner, Dist. Ahmednagar.10.M/s. R. M. Katore,having office at A/6 Murli Shakuntal Complex,Oppo. Market Yard, Sangamner,Dist. Ahmednagar, the sole proprietary of 3 WP.8782-18 & anr.odtMr. Ramhari Mohan Katore,Age : 50 yrs., Occu. Business,R/o Govind Nagar, Sangamner,District Ahmednagar.… Respondents.WITHCONTEMPT PETITION NO.65 OF 2021IN WRIT PETITION NO.8782 OF 20181.Shivaji S/o. Sambhaji Khule,Age : 63 years, Occu. Labour, R/o. Indiranagar, Sangamner,Tq. Sangamner,District : Ahmednagar.2.Jalindar S/o. Kacharu Lahamge,Age : 49 years, Occu. Labour, R/o. Vidyanagar, Sangamner, Tq. Sangamner,District : Ahmednagar.3.Purushottam S/o. Bisanlal Joshi,Age : 52 years, Occu. Labour, R/o. Bazar Peth, Sangamner, Tq. Sangamner, District : Ahmednagar.4.Shivaji S/o. Gavram Kasar,Age : 40 years, Occu. Labour, R/o. Jantanagar, Sangamner,Tq. Sangamner, District : Ahmednagar.5.Sunil S/o. Baburao Khare,Age : 62 years, Occu. Labour, R/o. Rangargalli, Sangamner, Tq. Sangamner, District: Ahmednagar.6.Goraksha S/o. Yashwant Rahane,Age : 36 years, Occu. Labour, R/o. Krushnanagar, Ghulewadi, Sangamner, Tq. Sangamner, District : Ahmednagar.…PetitionersVERSUS1.The State of Maharashtra, 4 WP.8782-18 & anr.odtThrough its Chief Secretary, Road Transport Department, Mantralaya, Mumbai-32.2.Ranjit Singh Deol,Age : Major, Occu. Service,Managing Director,Maharashtra State Transport Corporation,Central Office, Maharashtra Transport Bhavan,Dr. Anandrao Nair Road,Mumbai-400 008.3.Rajendra K. Javanjal,Age : Major, Occu. Service,Chief Engineer, Maharashtra State Transport Corporation,Central Office, Maharashtra Transport Bhavan,Dr. Anandrao Nair Road,Mumbai-400 008.4.Kailas Chandakant Kalbhor,Age : Major, Occu. Service,Divisional Engineer, Maharashtra State Transport Corporation,Ahmednagar Division, MSRTC Nagar, Ahmednagar.5.Balasaheb Nanasaheb Shinde,Age : Major, Occu. Service,Incharge Depot Manager,Sangamner Bus Stand, Tq. Sangamner,District: Ahmednagar.6.Rani B. Varpe,Age : Major, Occu. Service,Depot Manager,Sangamner Bus Stand, Tq. Sangamner,District: Ahmednagar.7.Ajay Wamanrao Bhosale,Age : 57 yrs., Occu. - Service,Regional Executive Engineer,MSTC, Nasik Division, MSRTC, Nasik, Nasik. 5 WP.8782-18 & anr.odt8.Ramhari Mohan Katore,Age 50 yrs., Occu. Business,R/o Govind Nagar, Sangamner,District Ahmednagar.… Respondents....Advocate for Petitioners : Mr. S. S. Dixit.AGP for Respondent-State : Mr. A. S. Shinde.Adv. for respective Respondents : Ms. R.D. Reddy (Absent).Advocate for Respondent No.4 : Mr. D. S. Bagul.Advocate for Respondent No.6 to 9 : Mr. Nikhil S. Jaju.Advocate for Respondent No.10 : Mr. Vinod Y. Bhide.Advocate for Respondent No.6 in CP : Mr. Parag V. Barde.Advocate for Respondent No.4 in CP : Mr. S. S. Bora.…CORAM : S. G. MEHARE, ANDSHAILESH P. BRAHME, JJ.RESERVED ON : 05.02.2025PRONOUNCED ON : 05.03.2025JUDGMENT : (Per S. G. Mehare, J.) :-1.Rule. Rule made returnable forthwith and heard finallyby consent of the parties.2.The petitioners who are specially abled filed this writpetition for allotting the shops in the complex constructed bythe respondents Nos 1 to 5 at Sangamner. They have claimedthat they have a preferential right in such premises as theyhave reservation under the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation Act,1995 (“The Act” for short). The respondent/ MSRTC has 6 WP.8782-18 & anr.odtdeveloped the land on build, operate and transfer (BOTScheme) through a builder respondent No.10. It is further caseof the petitioners that the shops in the complex should havebeen allotted at the prime location to make their lifeconvenient considering their special ability. The Government ofMaharashtra under the above Act has framed the action plan in2011 for protecting the rights of such persons. 3.The contesting respondent had initially opposed thepetition on the ground that since the development is not withthe Government aid therefore job reservation for such personsin entire premises does not apply to the MSRTC being aCorporation. However, after a long struggle, the PrincipalSecretary (Transport), Mantralaya, Mumbai in a meeting dated01.04.2019 informed that Government Resolution dated25.07.2007 shall be followed and 3% shops shall be reservedand be given to the disabled persons. After said meeting,immediately 5 shops were reserved in the complex atSangamner Bus Stand out of 169 shops. All the petitionerswere served with letter dated 01.04.2019 calling them for ameeting proposed on 03.04.2019 for discussion. The consciousdecision was taken to reserve the five shops for disabledpersons. However, the petitioner did not consent to take the 7 WP.8782-18 & anr.odtshops and refused to accept the shops in the said meeting.Even they did not sign the minutes of the meeting. Out of six,five petitioners were present in that meeting. Since thepetitioner refused to take the shops, the Contractor wasinformed that the reserved five shops should be allotted to thedisabled person on concessional rate if any. Other disablepersons respondent Nos.6 to 9 approached to him immediately.Out of five shops, the Contractor allotted the four shops torespondent Nos.6 to 9. Only one shop remained vacant. Theregistered lease deed also executed in favour of respondentNos.6 to 9. 4.The petitioner has stated that the shops were allotted onthe first floor on the extreme backside of the premises, whichwas in violation of the action plan scheme. The lift facility wasalso not suitably available. Considering their disablement andthe rights protected under the Act, they should have beengiven a shop on the ground floor. This has not been donedeliberately. For this substantial reason, they denied to getthose shops. Since the respondents were not interested to allotthe shops to the petitioners, they have deliberately producedthe another respondent Nos.6 to 9 and suddenly withoutconsidering the rights prior in time illegally allotted the shops 8 WP.8782-18 & anr.odtto them. Therefore, allotment to respondent Nos.6 to 9 is incontravention and violation of the rights of the petitioners whowere claiming the shops first in time. Respondent Nos.6 to 9were served and appeared through Mr. Jaju. However,respondent Nos.6 to 9 did not file affidavit-in-reply. 5.Respondent No.10/Contractor has filed affidavit-in-reply.His reply is mostly identical to the reply of the contestingrespondent/MSRTC. He has given the details of floating of thetender executing his agreement. In addition to it, he has comewith the case that efficacious remedy lies before theCommissioner under the Act of 1995 (09.09.2016). He hassubmitted that since there was no condition for reserving 3%of the shops for the specially abled person, he would sufferfinancial loss if the shops are given on concessional rate. Insuch a situation, his financial interest needs to be protectedand if the Court comes to the conclusion that the petitionerdeserve allotment of the shops, his right be protected and he isentitled to recover the damages from MSRTC. In his affidavit-in-reply, dated 23.04.2023 he submits that as on that date, hewas holding for 11 shops vacant for which he is paying rent tothe MSRTC, he did not parted with his possession to any thirdparty. If the petitioners choose them and/or in the case of 9 WP.8782-18 & anr.odtCourts direct so, he has given the description of those shops. Ifthe petitioners desire on the terms specified in his agreementas developer with MSRTC, those are available for thepetitioners. 6.Heard the respective learned counsels at length and gonethrough the petition, affidavit-in-reply and rejoinder with theabled assistance of the respective learned counsels. 7.Learned counsel for the petitioners referred to theGovernment Resolutions dated 25.07.2007, 25.02.2015 andSection 47 of the Act of 2016 (old 1996). Referring to theabove Government Resolutions and the provisions of the Act,he has pressed into service the arguments that the speciallyabled persons have the protection. The very object of the Actwas to give the equal opportunities, protection of the rightsand full participation by the person with disability. Only fordisability, they cannot be discriminated. Section 43 of the oldAct of 1995 provides for the schemes for preferential allotmentof land for certain purposes. As per the Section, theGovernments and local authorities should have framed theschemes in favour of the persons with disabilities, for thepreferential allotment of land at concessional rate for house,setting up business, setting up of special recreation centres, 10 WP.8782-18 & anr.odtestablishment of special schools, establishment of researchcentres and establishment of factories by entrepreneurs withdisabilities.8.The identical provision in the Act of 2016 hasincorporated under Section 37(c). Reading the above sections,the schemes to achieve the object of the Act should have beenframed by the State Government. Pursuant thereto, the Stateof Maharashtra has published the action plan for such persons.The facts reveal that after a long battle, the contestingrespondent/MSRTC agreed to allot five shops to thepetitioners. However, the dispute arose on the location.Admittedly, the shops reserved for the petitioners or likepersons were on the first floor. However, the petitionersdenied the same for the reason that it was not on the front sideof the building and ground floor. A small dispute arose on thefacility of the elevator. 9.The question is “can the shops on first floor be keptreserved for the persons like petitioners”? 10.In the action plan, at point No.3.54 it has been providedthat if any such tenaments are to be allotted to such persons, itshould be given on the front side and if the claimants are morethan the tenaments reserved draw by lots should be drawn. 11 WP.8782-18 & anr.odt11.It has been argued by the learned counsel for thecontesting respondents that since the shops were five and thepetitioners were six, they were fighting against each other.12.When the dispute was pending before the Court and ondenial with reasons to get the shops on the first floor, thecontesting respondent/MSRTC seems to have hastily conferredthe powers upon respondent No.10 to allot the shops and hewithout following the procedure allotted the shops torespondent Nos.6 to 9. It also seems that when the schemewas floated, they were not the applicants. 13.Learned counsel for the petitioners rely on the case ofShivaji Vishwanath Dongre Vs. State of Maharashtra andothers ; 2006 (1) Mh.L.J. 417. In this case, it has been heldthat the petitioner is entitled to invoke extra-ordinary writjurisdiction of the High Court for implementation of theprovisions of the Act. Therefore, the objection as regards thenon maintainability of the writ petition was discarded. Here inthe case, the objection has been raised by respondent No.10that an alternate efficacious remedy is available to thepetitioner. In view of the above judicial pronouncement, wedeem it fit to entertain this writ petition under the extra-
Decision
14 WP.8782-18 & anr.odt(iv)The allotment of the tenaments on the first floorto respondent Nos.6 to 9 stands cancelled. (v)Contesting respondent/MSRTC should followstrictly the procedure for allotment of the shops asmentioned above by lottery if the claimants aremore than the tenaments reserved under the Act.The process of re-allotment and reserving thetenaments for the persons with disability on thefront side should be done within three (3) monthsfrom today.(vi)In view of the above, Contempt Petition standsdisposed of.(vii)Rule made absolute. No order as to costs. (SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)15.After pronouncement of the judgment, learned counselfor contesting respondent/M.S.R.T.C. seeks stay to thejudgment pronounced for eight (8) weeks, as the respondentswant to impugn judgment and order before the SupremeCourt. For completing the process, this Court has alreadygranted three (3) months. 15 WP.8782-18 & anr.odt16.In the circumstances, of granting reasonable time, thepresent order would not be implement. The respondents havebreathing time to move the supreme Court. Hence, we declinethe prayer.(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)...vmk/-