Gujarat High Court
Aditi Shalin Mehta vs State Of Gujarat & 4 on 26 April, 2016
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/8779/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8779 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9846 of 2015
With
CIVIL APPLICATION NO. 7084 of 2015
In
SPECIAL CIVIL APPLICATION NO. 8779 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== ADITI SHALIN MEHTA....Petitioner(s) Versus STATE OF GUJARAT & 4....Respondent(s) ========================================================== Appearance:
MR HEMANG M SHAH, ADVOCATE for the Petitioner(s) No. 1 MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1 , 5 MR SN SHELAT, SR. COUNSEL with MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 2 MR JAY M THAKKAR, ADVOCATE for the Respondent(s) No. 4 MS MEGHA JANI, ADVOCATE for the Respondent(s) No. 3 ========================================================== Page 1 of 106 HC-NIC Page 1 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 26/04/2016 CAV COMMON JUDGMENT Rule in Special Civil Application No. 9846/2015. Service of rule is waived by Ms. Shruti Pathak, Ld. AGP for respondent no. 1, Mr. Chhaya, Ld. Advocate for respondent no. 2, Ms. Jani, Ld. Advocate for respondent no. 3 and Mr. Thakkar, Ld. Advocate for respondent no. 4.
2 These two petitions are raising the same issues against same set of respondents, though petitioners are different and, therefore, they are heard together and being decided by this common judgment, because the grievance of the petitioners are common, so also the factual details and material evidence to resolve such dispute. The only difference is the residential bungalow numbers of the petitioners, but all the bungalows are part of respondent no. 3 society and, therefore, only one set of documents and arguments are taken into consideration since the petitioners of another petition have adopted the arguments of petitioner of first petition and the respondents have nothing to add or differentiate between two petitions.
3 In addition to above clarification, only disclosure of difference between two petitions is to the effect that the petitioner of Special Civil Application No. 8779/2015 is owner and Page 2 of 106 HC-NIC Page 2 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT occupant of bungalow no. 39 of Manekbaug Cooperative Housing Society Ltd., being respondent no. 3; whereas the petitioners in Special Civil Application No. 9846/2015 are owners and occupants of bungalow nos. 27 and 30 of the same society. Thereby in-all, three occupants of three different bungalows have initiated such litigation and challenged the action of the respondent nos. 1 to 3 contending that it is arbitrary and discriminatory. Whereas allegations against the respondent no. 4 are to the effect that being contractor of the work under reference, they are not performing their part of the duties in accordance with terms and conditions of the work order and do not take care of technical issues which resulted into difficult situations at the site. However, there are no allegations against respondent no. 5, but some directions are sought for so as to initiate appropriate legal proceedings against office bearers of respondent no. 3 by the respondent no.
5. 4 Considering the rival submissions, the identity of all the litigants is also equally necessary to be recollected here. As aforesaid, all the petitioners are owners and occupants of their residential bungalows in the society being respondent no. 3 and to that extent, they are members of the cooperative society. This fact has raised question of locus-standi and jurisdiction, Page 3 of 106 HC-NIC Page 3 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT which would be taken care of hereinafter.
5 Whereas, the respondent no. 1 is State and its policy to carry out certain activity within the societies through the respondent no. 2 being local authority, is under challenge. Thereby the respondent no. 1 is State, whereas the respondent no. 2 is local body, namely Ahmedabad Municipal Corporation. Both these respondents are carrying out certain activities within the society by modifying the internal road of the society being respondent no. 3, namely Manekbaug Cooperative Housing Society. The respondent no. 4 is the contractor to whom work order is issued by the respondent no. 2 in accordance with the Scheme of the respondent no. 1 and input by the respondent no. 3. Whereas the respondent no. 5 is District Registrar of Cooperative Societies since there are certain allegations against the administration of respondent no. 3 society.
6 Even at the cost of making this document bulky, considering the objections raised by the respondents regarding locus standi of the petitioners, so also maintainability of such petition under Article 226 of the Constitution of India, it is necessary to recollect the prayers and, therefore, they are reproduced hereunder for ready reference. Fortunately all the prayers in clauses [A] to [I] in both the petitions are Page 4 of 106 HC-NIC Page 4 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT para-materia same in verbatim and, therefore, only one set of prayers is reproduced hereunder.
"[A] Your Lordships be pleased to issue a writ of mandamus directing the respondents from making any road in Vibhag one of respondent no. 3 Society without excavating the existing road so as to maintain the existing road level at all times;
[B] Your Lordships be pleased to issue a writ of mandamus directing the respondents to tear down the newly made concrete road in Vibhag one of respondent no. 3 Society forthwith before onset of monsoon and to make a new road after fully complying with the terms and conditions of the tender;
[C] Your Lordships be pleased to issue a writ of mandamus directing the respondent no. 2 to take action against the respondent no. 4 for committing blatant violation of the tender terms and conditions and to recover all monies paid to him so far [D] Your Lordships be pleased to issue a writ of mandamus directing the respondent no. 5 to initiate inquiry against the office bearers of respondent no. 3 and to hold them guilty of misfeasance and malfeasance for allowing the contractor to commit Page 5 of 106 HC-NIC Page 5 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT violation of the tender terms and conditions by permitting construction of concrete road without excavating the existing asphalt road;
[E] Pending admission and final hearing of the present petition, Your Lordships be pleased to direct respondents from making any road in Vibhag one of respondent no. 3 Society without excavating the existing road so as to maintain the existing road level at all times;
[F] Pending admission and final hearing of the present petition, Your Lordships be pleased to direct the respondents to tear down the newly made concrete road in Vibhag one of respondent no. 3 Society forthwith before onset of monsoon and to make a new road after fully complying with the terms and conditions of the tender;
[G] Pending admission and final hearing of the present petition, Your Lordships be pleased to issue a writ of mandamus directing the respondent no. 2 to take action against the respondent no. 4 for committing blatant violation of the tender terms and conditions and to recover all monies paid to him so far;
[H] Pending admission and final hearing of the present petition, direct the Page 6 of 106 HC-NIC Page 6 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT respondent no. 5 to initiate inquiry against the office bearers of respondent no. 3 and to hold them guilty of misfeasance and malfeasance for allowing the contractor to commit violation of the tender terms and conditions by permitting construction of concrete road without excavating the existing asphalt road;
[I] Your Lordships be pleased to grant such other and further relief and/or order, as deemed fit, in the interest of justice in favour of the petitioner."
7 The petitioners have disclosed in the cause title of the petitions that they are invoking the jurisdiction of this Court under the provisions of Articles 14, 21 and 226 of the Constitution of India, so also under the provisions of The Gujarat Provincial Municipal Corporations Act, 1949 [for short 'the Act']. Bare perusal of the prayer clause makes it clear that the dispute is pertaining to constructing or repairing or renovating the old internal road of the respondent no. 3 by respondent no. 4 in violation of the terms and conditions of work order that may be issued by the respondent no. 2 to respondent no. 4 and on factual aspect, the petitioners have objected to construct a new road without excavating the existing road and thereby want to maintain the existing road level at all Page 7 of 106 HC-NIC Page 7 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT times. In addition to prohibitory and restrictive orders and directions to build new road over and above the surface of old road, mandatory order is sought to tear down the newly constructed concrete road in Vibhag-1 / Part-I of the respondent no. 3 society and to direct the respondent no. 5 to initiate inquiry against office bearers of the respondent no. 3 society and to hold them guilty of misfeasance and malfeasance for allowing the contractor to commit violation of the terms and conditions of the tender or work order, by permitting construction of concrete road without excavating the existing asphalt road with similar interim reliefs.
8 While issuing Rule in Special Civil Application No. 8779/2015, the Coordinate Bench of this Court has on 20/5/2015, granted ad- interim relief in terms of prayer clause [E] being para 29 [E], which is reproduced hereinabove. Such interim relief is continued till date and thereby further construction of the road in Part-I of respondent no. 3 society is restricted and stopped from making any road without excavating the existing road so as to maintain the existing road level at all times. However, it seems that respondent nos. 2 to 4 are keen to continue the construction of road even if level of new road becomes 1 ft., higher than the level of the compound/ ground of several Page 8 of 106 HC-NIC Page 8 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT bungalows of the society including bungalow of present petitioners and take a stand that it is a decision of the society which cannot be challenged irrespective of collection of water within the compounds of the bungalows which may result into several complications including health problems and, therefore, respondents are pressing for early final disposal of these petitions. Whereas the petitioners are also desirous to decide such petitions at the earliest considering their detailed submissions in the petitions to the effect that during monsoon season because of rain and because of issues raised in the petitions, there is collection of huge water in their compounds which may result into epidemic diseases. Therefore, in addition to regular roster of this Court, when matters are specially assigned by administrative order to this Court, the same are heard on different dates for final disposal.
9 Considering the issue involved in the petitions, which touches to the majority of societies and citizens of the City and to resolve the dispute amicably without entering into technical and legal issues and more particularly because of the request of all the parties, the Court has inspected the area of the society, where road is under development. The local inspection certainly confirms that there is something improper or abnormal while developing Page 9 of 106 HC-NIC Page 9 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT or creating or constructing new road on old asphalt road within the society so as to restrict the collection of rain water from the public road, when level of the road of the society is increased almost by 10 inches to 12 inches i.e. almost one foot from the level of the compounds of most of the bungalows in particular part of the society. It is also observed that in some portion of the society, such concrete road has been built after excavating old asphalt road and thereby keeping the road level equal or lower than the level of the compound or at least equal to previous level of the road, which results into less possibility and chance of collection of rain water in the compounds of the bungalows situated in such different parts of the society. Whereas in Part-I of the society, which is under consideration at present, there is prima-facie clear evidence confirming the situation that the level of the internal road of the society is about 10 inches to 12 inches higher than the level of the compounds of the different bungalows, then naturally rain water or any water would return back from any pipeline either used water or drainage water would get collected within the compounds of the bungalows of such part of the society and it would certainly require a specific and additional procedure and methodology to remove such collected water from the compound walls.
Page 10 of 106HC-NIC Page 10 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT 10 Even before scrutinizing the rival facts and circumstances, so also legal issues, it is to be noted here that practically this is not the issue of only present petitioners in the City, but this is a regular and routine problem of many citizens and several residential colonies/ societies of the City where water is being collected during monsoon and it requires some activity either by the local people or by the local authority to remove such water from the area and till then people are always in difficulty since they have to cross the collected water for their daily life and that such collected water shall always affect their routine life and may raise health problems. Thereby in fact, this is not the issue or problem of present petitioners only, but it is a general problem of several citizens, may be because of either inadequate and insufficient care and control of such situation by the local authority or because of their negligence towards such issue or because of their inability and inactive approach towards such issues while planning the construction of road and permitting the construction of buildings and then not to control all irregularities in such construction work, inasmuch as by all means it is the basic duty and function of the local authority to see that there is no collection of water for long time in any civilized area so as to increase the health problems and so as to disturb the routine life of the citizens who are Page 11 of 106 HC-NIC Page 11 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT paying taxes for all such amenities. Therefore, in any case, if there is a lacuna or mis-deed or absence of taking due care by the local authority in dealing with such issues, in fact such issue needs to be taken up on larger scale as public interest litigation so as to make the local authority realize that they shall act in accordance with law and rules and thereby perform their duties properly towards the citizens.
11 However, at present we are concerned with the dispute raised in these petitions and to scrutinize the available facts and evidence to resolve the issues raised herein, based upon facts, circumstances and documentary evidence.
12 As discussed hereinabove, now the major issues which require consideration can be recollected thus -
[1] Whether the petitioners have locus standi to file such petitions and thereby whether the petitioners are entitled to initiate such proceedings against present respondents under Article 226 of the Constitution or not?
[2] Whether in exercise of powers under Article 226 of the Constitution, the Court can grant reliefs as prayed for in these petitions?
13 To answer such issues, I have considered Page 12 of 106 HC-NIC Page 12 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT rival submissions and scrutinized the record.
14 The petitioners' case in brief is to the effect that -
[a] The petitioners are residents and members of the respondent no. 3 society, which is one of the best and premium society located now almost in the center of developed City. The market value of each bungalow in the society is approximately between Rs.4 crore to Rs.5 crore. The society is situated in the posh area in the City, namely Ambawadi and it is adjoining to or nearby to the Gulbai Tekra i.e. small hill, which is having some more height than height of other part of the City. Therefore, in general, the rain water from such Gulbai Tekra would go towards such other nearby areas including the respondent no. 3 society. Even otherwise, as aforesaid, there is a routine and regular problem of collection of water during monsoon season in several residential colonies and societies of the City. Thereby, the respondent no. 3 Manekbaug Cooperative Housing society is not an exception and thus there is always an issue of collection of water within residential area of the society.
[b] Considering such situation, the respondent no. 1 Government of Gujarat had proposed a scheme for Constructing RCC Road and Rubber Moulded Paver Block Paving Work under Page 13 of 106 HC-NIC Page 13 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT 70:20:10 and 80:20 Scheme in Different Private Societies. As per such Scheme, the State Government has agreed to spend 80% of the total cost of constructing such internal roads of the society, if society agrees to bear the expenditure of remaining 20% of the total cost. Naturally such activity would be subject to compliance with the terms and conditions as stipulated in such Scheme. Present dispute is practically pertaining to proper implementation of such Scheme, copy of which is produced on record at page 256 as Annexure-I, which is dated 19/4/2012 and named as "Swarnim Jayanti Chief Minister's Rural Development Scheme". Such Scheme is disclosed by the Government Resolution for the benefit of the citizens.
[c] To avail benefits of such Scheme, members of the respondent no. 3 society, including present petitioners, have agreed to construct RCC road for which 80% of the total cost would be borne by the respondent no. 1 - State while remaining 20% would be borne by the society, whereas scheme would be implemented and execution of work under the scheme will be carried out by the respondent no. 2. For the purpose, society has to deposit its share with the respondent no. 2.
[d] It is alleged that once such Scheme is approved, the office bearers of the society being Page 14 of 106 HC-NIC Page 14 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT its representatives are responsible for ensuring that construction of RCC road is carried out in compliance with various terms and conditions as laid down by the concerned authorities while assigning the work to respondent no. 4 i.e. in the tender document or work order. It is specifically contended by the petitioners that they do not have the copy of tender or work order and thereby they are not having the terms and conditions with them, but for the purpose, they are relying upon a letter addressed by the Deputy City Engineer of respondent no. 2 Corporation to one another society, namely Dharmadevnagar Society, Ghodasar, since the management of the respondent no. 3 society has refused to provide with such necessary documents. The letter under reference is on page 21 at Annexure-B. It is specifically contended by the petitioners that terms and conditions of the Scheme are same in all the projects under the Scheme undertaken by the respondent nos. 1 and 2 and, therefore, the petitioners are relying upon such letter dated 15/12/2014 addressed to Dharmadevnagar Society, as aforesaid.
[e] Though discussion for determination could be recorded after recollecting the rival submissions, at this stage it certainly needs to be recorded that none of the respondents have ever disputed or objected to such disclosure and practically none of the respondents have bothered Page 15 of 106 HC-NIC Page 15 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT to produce relevant letter or communication between the respondent nos. 1 and 2 on one side and respondent no. 4 on other side to ascertain that what are the actual terms and conditions of the work assigned. While answering such disclosure in paras 6 and 9 of the petitions, the respondent no. 3 society has, in para 8 [page 205] of its affidavit-in-reply dated 29/6/2015 contended that they deny that they have refused to part with necessary documents and that case of Dharmadevnagar Society is different from the case of the respondent no. 3 society and in the present case, there is no decision which requires excavation of existing tar road and thereby comparison with other society is misconceived and inappropriate. If it is so, nobody has restricted or restrained the respondents to produce on record the relevant documents pertaining to the dispute on hand so as to scrutinize and determine immediately without entering into further and detailed inquiry that whether there is material difference or that the Scheme is different and needs to be executed as it is being tried to be carried out at present. Non-disclosure of such documents certainly results into negative presumption i.e. adverse inference against litigant, who is hiding any such information from the Court.
[f] It is further contended that initially when the Scheme was explained to the members of Page 16 of 106 HC-NIC Page 16 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT the society, it was informed and disclosed by the office bearers that the height of the road would not be increased. However, road is so constructed that height of the road is increased by 10 inches to 12 inches and thereby it is even impossible to have any ramp so as to enable the members of the society to take their cars inside their compounds even for parking. It is further contended that cost of excavation of old asphalt road is approximately Rs.3 lacs to Rs.5 lacs and as per the terms and conditions of the Scheme, such cost has to be borne by the society and though society had ample funds to spend for such excavation, the respondents have in collusion with each other, deliberately constructed new RCC road on existing asphalt road and that is certainly in violation of the terms and conditions of the Scheme as well as the tender by which work has been assigned to respondent no. 4.
[g] It is also alleged that though storm water drains have to be constructed before construction of RCC road begins and thereby in absence of storm water drain, so also in absence of provisions for shifting of gutter lines and underground cables, there would be several problems that may have to be faced by the members without their fault.
[h] As already recorded, it is contended that the area of the society is low lying area Page 17 of 106 HC-NIC Page 17 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT and it is frequently inundated with rain water which does not enter into the bungalows because of the level of asphalt road which allows rain water to pass on outside the society on a public road and on public drainage system outside the society.
[i] Thereby it is contended that now if the road level is allowed to be increased as being done in Part-I of the society, then rain water would enter into different parts of the bungalows and would stagnate there, which would result into serious health problems and outbreak of diseases.
[j] It is contended that at the time of filing of the petitions, the contractor - respondent no. 4 has practically left the work unilaterally and there was no progress because the contractor was practically black listed by the authorities pursuant to complaint lodged by one Mr. Hasmukh K Tripathi. Copy of such complaint is produced on record at Annexure-C. [k] It is also categorically contended that in other parts i.e. divisions of the respondent no. 3 society, the old asphalt road has been dug and new RCC road has been constructed maintaining existing level of the road.
[l] It is specifically contended and submitted that exclusive preferential treatment Page 18 of 106 HC-NIC Page 18 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT is given to the son-in-law of the Secretary of the society as the RCC road has been dug up before his bungalow so that his Mercedes car could enter in the parking area driveway within the bungalow and, therefore, if particular benefit is extended to one member, then same benefit certainly needs to be extended to all the members.
[m] It is contended that because of such arbitrariness, the petitioners are unable to park their vehicles within their bungalows.
[n] In view of above factual details, the petitioners have addressed notice dated 16/5/2015 to the respondent no. 3 calling upon respondent no. 3 to demolish incomplete RCC construction of road. However, respondent no. 3 did not pay any heed and, therefore, petitioners have addressed another legal notice dated 18/5/2015 to the respondent no. 2. It is further contended that on 18/5/2015 approximately 39 to 42 members of the society have signed a letter declaring that signatures taken by the management is void ab- initio as they have not been briefed properly about the road construction.
[o] It is further contended that in fact respondent no. 2 Corporation has already decided that while resurfacing the internal road of the society under such Scheme, the existing road Page 19 of 106 HC-NIC Page 19 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT would be excavated by approximately five inches in depth through machines so as to avoid collection of water in the area and thereby to see that the level of public road may not be higher than the level of the internal road of the different societies. Such facts have been published by them in the daily newspaper, which is produced at Annexure-I with the petition.
[p] It is also contended that only 30% to 40% of the RCC road has been completed in the society, but it affects the members of the society and despite receipt of the notice as aforesaid, when the respondent nos. 2 and 3 have not taken any action or step to demolish the RCC construction, the petitioners are obliged to initiate such litigation on the grounds stated in para 25 of the petition.
[q] The sum and substance of the grounds is to the effect that there is discrimination amongst members of the society, there is exclusive preferential treatment to some of the members of the society and that though it is required under the Scheme, there is no provision for storm water drainage and that because of accumulation of rain water within the premises of individual member, there would be outbreak of diseases and this is nothing but violation of Article 21 of the Constitution and thereby when the respondents have failed to discharge their Page 20 of 106 HC-NIC Page 20 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT duties in accordance with law and rules, so also faithfully and properly, they have no option but to initiate such proceedings so as to resolve the issue.
[r] So far as responsibility of respondents is concerned, it is specifically contended that because of arbitrariness of respondents and because of non-compliance of terms and conditions of the Scheme and tender in the event of accumulation of water, the respondent no. 2 would wash off its hands and hold the society responsible for the same and thereby 100% cost of constructing RCC road without digging up the asphalt road and without making proper arrangement for storm water drainage would go in vain and thereafter entire cost of making things in order would be borne by the society, which would result into additional usage of raw material and time. It is specifically alleged that instead of executing the Scheme for the benefit of the entire society, the respondents are working only for their own motive. Thereby the funds of the society is being utilized for unfruitful projects though the aim of respondent no. 1 is to provide better road and it is the responsibility of the respondent no. 2 to ensure that the Scheme is properly implemented so that public at large may not be put to any further inconvenience. Thereby it is submitted that the respondent nos. 2 and 3 are not performing their Page 21 of 106 HC-NIC Page 21 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT duties with utmost care and responsibility.
15 In addition to above pleadings, the petitioners are relying upon several documentary evidence which are referred in the pleadings and annexed with the petitions, hence basic contents of such documentary evidence need to be recollected, which may be summarized as under :
[a] Annexure-A is share certificate to confirm that the petitioner is member of the respondent no. 3 society, which is not a disputed fact.
[b] Annexure-B is a letter dated 20/12/2014 issued by the respondent no. 2 Corporation to the Chairman of Dharmadevnagar Society, wherein also the work under the project, which is the subject matter of the present litigation is referred. The perusal of such letter makes it clear that in such Scheme of the State Government - respondent no. 1, the work is to be carried out by the local authority - respondent no. 2 and that respondent no. 2 has in categorical terms conveyed to the society and disclosed that digging of asphalt road is necessary before constructing RCC road and such digging is to be carried out at the cost of the society. It is further stated that before construction of road is started, the society has to manage for installation of storm water line for discharge of rainy water and slope of the Page 22 of 106 HC-NIC Page 22 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT road would be considered based upon the location of the catch-pit of such storm water line and if there is no storm water line, then in case of collection of rain water of society, the society would be held responsible. It is further disclosed that the water from cleaning of the house i.e. non-rainy water to be discharged from any house of the society, should not be discharged on road so as to keep the strength and lookout of the road proper. For the purpose, the members of the society are advised to keep Galitap on their own cost. Thereby it is clear that the rain water collected in the house is permissible to be discharged on the road of the society and thereby practically ideal situation is such that rain water should not get collected in the compound of the plots of the society, but it should be discharged in due course directly on public road so as to get a way outside the residential area without undue accumulation of rain water. With such letter, the Corporation has attached list of instructions, which makes it clear that such work is to be carried out by the local authority under the Scheme of the Government, wherein Government is spending 80% of the amount from public money and, therefore, irrespective of personal grievances, if there is mis-management of such fund or improper execution of the work under the Scheme, then any citizen who is affected by such Scheme is certainly entitled to initiate appropriate legal Page 23 of 106 HC-NIC Page 23 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT proceedings against the concerned authorities and pursuant to settled legal position that when the State or its functionaries are not acting in accordance with the law, rules or their own Scheme and/or its functioning is resulting into loss of public money and if any work carried out by such State authorities is either not proper or affecting any individual, then all such individuals are either jointly or individually entitled to agitate the issue under Article 226 of the Constitution before the High Court requesting to issue appropriate writ - directions to the concerned State authorities for doing the work in question in accordance with law, rules, Scheme or requirement for the betterment of the public at large.
In the present case, though discussion on some evidence and rival submissions makes a show that this is a private dispute between the members of the society and the society, the fact remains that practically definition or entity of litigant as such i.e. members of the society and society is simply co-incident, otherwise basic and major issue is regarding collection of rain water in residential area repeatedly for years together without any proper, suitable and effective measures taken by the local authority. Therefore, when State Government has agreed to spend 80% of the cost for any such activity so as to avoid collection of water in residential colonies/ societies by constructing proper roads, Page 24 of 106 HC-NIC Page 24 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT this is a State act which can certainly be scrutinized in case of improper, illegal or irregular execution of it when public money is being utilized for such Scheme and when collection of water in residential area is continuous issue within the City, it cannot be said that such issue cannot be raised in such petition by an aggrieved person because of improper execution of the Scheme by the respondents.
[c] Annexure-C is a complaint by one retired City Engineer of respondent no. 2 as a member of respondent no. 3 society to the concerned officer of the respondent no. 2 - local authority wherein, in addition to actual problem of the society, it is stated that and it is in fact disturbing to note that, the work of constructing RCC road in the society i.e. respondent no. 3 under the Public Private Partnership [PPP] Scheme is awarded to four different contractors. Such complainant, namely Hasmukh K Tripathi is residing in bungalow no. 40 of the society and he being the expert Engineer, has categorically stated that when the work was going on, no responsible person of the contractor remained present, proper material is not being used, the thickness of road is not properly maintained, there is no control or recording of utilization of steel material and there is no measurement for the same, cement of proper quality is not being Page 25 of 106 HC-NIC Page 25 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT used, there is no proper covering of iron - steel rods in the constructed portion, thickness and height of the road is different even at the level at same portion of the road i.e. at the sides of the road so also middle of the road and, therefore, it is conveyed that the life of the road under construction would be an issue.
It is also contended that there are some financial irregularities in such Scheme and, therefore, he has conveyed the Corporation not to make payment to the contractor of the work under reference for respondent no. 3 society. Such complaint was sent to several officers including the society.
[d] Annexure-D is regarding pendency of some civil suit on the same issue. However, it was not referred during oral submissions and, therefore, I do not want to enter into its factual details or otherwise, except recollecting regulations for regulating the construction, maintenance and control of drains, sewers, drainage and sewage works of any description within Development Area, wherein in para 24.2 under the heading of 'Regulations', regulation nos. 4 and 5 read as under :
"[4] No person shall discharge or cause to be discharged any storm water surface water, ground water, roof run-off, or subsurface drainage to any sanitary sewer, Page 26 of 106 HC-NIC Page 26 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT uncontaminated cooling water or unpolluted industrial process water be permitted to be discharged to any sanitary sewer by the Engineer if storm sewer is not available. [5] Storm water and all other unpolluted drainage shall be discharged to such sewer as are specifically designated as storm sewers or to a natural outlet approved by the Engineer. Industrial cooling water or unpolluted process waters may be discharged with the prior approval of the Engineer to a storm sewer or natural outlet."
[e] Annexure-E is photographs which confirm the situation witnessed during local inspection.
[f] Annexure-F is notice issued by the advocate for the petitioners to the respondent no. 2 with relevant documents and press note by the respondent no. 2 regarding digging of asphalt road before constructing RCC road. Fact of such document is already considered while recording pleadings.
16 On such pleadings, when this Court has called upon the respondents to answer such petitions, respondent no. 1 State has though argued in support of respondent no. 2 at the time of active hearing, selected not to file affidavit-in-reply to the petitions and, therefore, there is reason to believe that State Page 27 of 106 HC-NIC Page 27 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT has agreed to the contentions of the petitioners and, therefore, practically adverse inference can be drawn against the State.
17 Whereas the respondent nos. 2 and 3 have filed their affidavit-in-reply, but the respondent no. 4 contractor and respondent no. 5 Registrar, Cooperative Societies, have also failed to respond to the petitions by filing reply and, therefore, like the State, there may be presumption and adverse inference against them that they do not have to comment anything on the pleadings and allegations of the petitions and thereby they are admitting contents of the petitions.
18 So far as reply filed by the respondent no. 2 - local authority is concerned, the sum and substance of the defences can be summarized as under :
[a] The most important admission in such reply is in para 3 which reads thus :
"..... It is submitted that answering respondent has absolutely acted in consonance with policy of the State Government which is popularly known as 'Swarnim Mukhya Mantri Shaheri Vikas Yojna'. Above referred policy is formulated with an aim to provide RCC internal roads to the societies within the urban area of State of Gujarat. The policy Page 28 of 106 HC-NIC Page 28 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT works as per Public Private Partnership and the concerned society is supposed to bear 20% of total cost, whereas 80% of total cost for construction of RCC internal roads would be borne by public exchequer."
[b] After such admission, the history of procedure has been described, about which we are not concerned at present. But in para 5 of the reply, what is pleaded in defense is material to be recollected here, which reads as under :
"5. .... As per the procedure adopted by the answering respondent in every such cases, answering respondent use to direct the concerned society to give agreed level of the proposed roads as in many cases, the societies are complaining of in-flow of rainy water from the main road in the society. It is important to mention here that in present case also the work was commenced and was in progress as per the level shown and agreed by the Society."
[c] Above quoted two sentences in reply by the respondent no. 2 makes it clear that the respondent no. 2 is executing a State sponsored policy for the benefit of public at large and they have adopted practice or procedure to ask the society to confirm agreed level of the proposed road. It is really surprising fact that Page 29 of 106 HC-NIC Page 29 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT how competent local authority having competent and expert Engineers, is, instead of taking care and responsibility of developing the facilities, in the present case, construction of road for the general public, based upon geographical situation and flow of water, etc., seeks approval of local residents for construction of road. It is undisputed fact that in any case, it is the duty of the local authority to see and to take appropriate steps to confirm that there is no mishap of any nature whatsoever during natural calamity including regular rainy season. But unfortunately we have witnessed that even after first rain in every year, there is water logging in different parts of the City , which results into blockage of several roads and accumulation of water in the residential areas, bungalows and houses, which generally damages valuables and properties of the public and it certainly causes health problems. Thereby, instead of taking care of the over-all situation considering geographical situation of the entire City, so also the local place and considering the need for proper discharge of such water in time, the local authority has to take decision about proper height and slope of the road, so also construction of drains, sewer, drainage and sewerage works.
[d] Therefore, such reply makes it clear that instead of doing their job in proper manner, Page 30 of 106 HC-NIC Page 30 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT the respondent no. 2 local authority has shifted the responsibility on the local citizens who may not have the expertise to decide such issue and the communication by the respondent no. 2 local authority which is referred hereinabove, makes it clear that the Corporation is confirming that the responsibility of collection of water would rest upon the concerned societies. In view of such position, irrespective of any technicality that may be pleaded or submitted in terms of locus standi of the petitioners or regarding jurisdiction of this Court under Article 226, I am of the clear opinion that the issue certainly requires consideration under the ambit of writ jurisdiction of this Court, more particularly when it is so agitated by the affected citizens for appropriate directions against all concerned including State and local authority against whom such writ would certainly lie. Such discussion makes it clear that irrespective of defence and submissions by the society and Corporation being respondent nos. 3 and 2 respectively that there is consensus by the petitioners in keeping asphalt road as it is and to construct RCC road over and above such asphalt road, when such activity itself needs to be deprecated, then because the petitioners have to seek reliefs against all the respondents jointly, it cannot be said that they have no locus standi to file such petition or that this Court has no jurisdiction to entertain such petition. Few more points Page 31 of 106 HC-NIC Page 31 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT raised on such issue shall be answered while recording submissions of the learned advocates for the parties.
[e] Again most significant pleadings and thereby disclosure by the respondent no. 2 - local authority is in para 8 of its reply, wherein it is stated that "The answering respondent has no hesitation or difficulty in constructing remaining road if now the society and/or its members want to decrease level of the remaining road which is yet to be constructed."
[f] So far as prayer regarding excavating or demolishing RCC road already constructed is concerned, it is stated that '... in facts and circumstances of present case, it would not be possible, legal and/or rational to excavate/demolish the road which is already constructed as per the agreement of the society. Cost of such excavation/demolition of the existing constructed RCC internal roads cannot be borne by public exchequer more particularly when the road was constructed as per the consent and agreement of the society."
[g] With such reply, the Corporation has annexed few documents, which are as under:
[i] Letter dated 15/9/2012 by the respondent no. 3 society to respondent no. 2 Corporation Page 32 of 106 HC-NIC Page 32 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT requesting the Corporation to carry out the work as per the Scheme under reference, wherein there is specific reference that the internal road of the society is to be resurfaced and new road is to be constructed either by stone paving or by cement concrete. Therefore, this is not the work carried out by the society on its own, but society has requested the respondent no. 2 local authority to carry out the work as per the Scheme of the Government and, therefore, issue raised with reference to the provisions of the Cooperative Societies Act would not be much material or applicable in the present case.
[ii] Such request by the society has been accepted by the respondent no. 2 and, therefore, Corporation has awarded contract of constructing internal road of four different divisions of the society to four different contractors. The interesting disclosure in such letter dated 12/5/2014 is to the effect that when Corporation has conveyed the society that work of their society has been approved, that as per level marking done by the contractor, the level of compound of several plots became lower than the level of road and, therefore, for doing the work as per the level of the road suggested by the contractor, there is a need of excavating existing asphalt road at several places and, therefore, Corporation has called upon the society to excavate the existing asphalt road and Page 33 of 106 HC-NIC Page 33 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT to convey the Corporation to start the work under the Scheme. Therefore, now there is clear evidence on record that in fact respondent no. 2 local authority is well aware about the geographical position at the place and, therefore, it is categorically disclosed by the local authority that if new road is constructed as per the marking of the contractor, then level of certain bungalows would be lower than the road level and, therefore, existing asphalt road needs to be excavated.
[iii] Surprisingly, just within 10 days from such letter, Corporation has again called upon the society to confirm that society has no objection if RCC road is constructed over and above existing asphalt road without excavating such asphalt road and that while doing so, if level of compound of any bungalow is lower than the level of the road, then society has no objection. Though it is categorically conveyed in the same letter by the local authority to the society that in fact while level marking by the contractor, when it was noticed that ground level of several bungalows would be lower than the road level, the residents of the society had objected to construct such road. Therefore, it is clear and certain that there is a problem in constructing RCC road over and above asphalt road and that local authority is well aware that it would result into lowering the ground level of Page 34 of 106 HC-NIC Page 34 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT bungalow than road level and thereby it would certainly result into collection of rain water within the compound of individual bungalow, which would certainly create health issues.
[iv] Therefore, irrespective of internal activities within the society, based upon which defence has been taken before this Court that there was consensus between the majority members of the society regarding not to excavate the asphalt road and to construct new RCC road over and above the asphalt road irrespective of increase in height and level of such road, the fact remains that the local authority has tried to shift its responsibility and liability upon the society instead of taking strong view and to see that no work is carried out in casual manner whereby instead of resolving the problem of the residents, there would be more problems of water logging; inasmuch as if internal ground level of compound of individual bungalow in residential colony is appropriately 1 ft. less than the road level, then it is quite clear and obvious that all rain water from surrounding areas having higher level than the present society, would get collected in such bungalow and in absence of any proper and effective drainage system for such rain water or storm water, the residents of such bungalows would certainly have to face the consequences of nuisance of collection of such water viz., inability to freely move from the Page 35 of 106 HC-NIC Page 35 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT house and ultimately it would result into epidemic of several diseases and discomfort.
[v] Unfortunately, by letter dated 26/5/2014 the respondent no. 3 society has conveyed to respondent no. 2 local authority that society has no objection to continue the construction of new RCC road over and above existing asphalt road without its excavation i.e. PCC and there is no objection if ground level of bungalows becomes lower than the road level.
[vi] Whereas by letter dated 20/6/2014 i.e. even after previous letter dated 26/5/2014 by the society to continue construction of road as it was being done till then, the local authority has conveyed that though society has conveyed its decision, the Corporation needs the copy of the resolution of the society confirming such decision. This again goes to show that the respondent no. 2 Corporation was having doubt about such decision.
[vii] Whereas by letter dated 11/7/2014 the Corporation has again asked the society to forward such resolution with an intimation that in absence of it, Scheme would be cancelled for the society and 20% amount deposited by the society may be forfeited. Therefore, one thing is certain and clear that the Corporation is also aware about the mischief played by them, so also Page 36 of 106 HC-NIC Page 36 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT by the society that they are playing with the public money by seeking resolution in particular manner from the society to carry out certain work improperly for the reasons best known to them or which can otherwise be presumed by any prudent man.
[viii] Whereas by letter dated 14/8/2014 the Corporation has conveyed the society, probably in response to the query by the society, that copy of the work order issued to the contractor cannot be given to the society and that under the Scheme for construction of RCC road, no tender was invited, but work had been assigned to panel contractor. Whereas for specification of the work to be carried out, it is disclosed in categorical terms that specifications are included in abstract item provided to the society. But again for the reasons best known to the Corporation, the Corporation has failed to provide copies of such documents to the society and also failed to disclose all such documents before the Court though the petitioners have categorically pleaded and alleged that the respondents are hiding such documents. It is to be recollected here that there is no reply to such pleadings by the respondent no. 2 and, therefore, the scrutiny of the pleadings and discussion makes it clear that the respondent no. 2 is hiding certain facts from the Court. In view of such facts, practically adverse inference is required to be drawn against Page 37 of 106 HC-NIC Page 37 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT the respondent no. 2 considering settled legal position that person - litigant who is having better details and evidence in his possession, which may be necessary for judicial decision of any issue, shall disclose such facts and evidence before the Court without fail. Therefore, if the respondent no. 2 is not ready and willing to disclose such documents before the Court, then there is reason to draw adverse inference against the respondent no. 2 so as to conclude that there is substance in the allegation made by the petitioners that respondent no. 2 is not working in accordance with law, rules and regulations, etc., and, therefore, they are always subject to scrutiny of their activities by the constitutional Courts in such writ jurisdiction to issue appropriate directions to them to abide by the law, rules and regulations so as to avoid discrimination, arbitrariness and otherwise against the aggrieved petitioners. Therefore, irrespective of other technical issues raised, both by the Corporation and the society regarding locus standi and alternative remedy under the Cooperative Societies Act, in view of above discussion, it becomes clear that this Court has to exercise its jurisdiction under Article 226 to direct the respondent no. 2 to initially produce and disclose all relevant information on record and to strictly abide by such terms and conditions of all such documents and Scheme.Page 38 of 106
HC-NIC Page 38 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT [ix] It cannot be ignored that when 80% of the total cost is being borne by the State Government from the public fund and when such fund is to be utilized under the supervision and through the local authority, the Corporation cannot and should not ask for the consent of the layman on technical issues that what should be the road level at particular place. In any case, the issue regarding appropriate level of the road is purely technical issue which certainly needs to be taken care of by the experts and expert Engineers of the Corporation and not by the members of the society or general public at large. It seems that the Corporation is aware about such situation and, therefore, by its letter dated 8/9/2014 to the respondent no. 3 society, it has been conveyed that in work order for constructing RCC road in respondent no. 3 society, there is an item of digging the road approximately 1 ft., or 0.30 meter before constructing new RCC road. However, the work order does not include the task of digging up existing asphalt road for which Corporation has already conveyed the society in previous communication and, therefore, to dig asphalt road and to cut asphalt road is the responsibility of the society and thus the society has to manage to carry out such work so that Corporation can take further steps in the matter. Practically this communication puts an end to the entire dispute that in fact there is a decision by the Page 39 of 106 HC-NIC Page 39 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT Corporation to dig the road by 1 ft., and if road is of asphalt, then it is to be dug at the cost of the society. Irrespective of such communication, if respondents are trying to construct new RCC road without digging the asphalt road and thereby not digging for 1 ft., which results into high level of road by 1 ft., and thereupon water is being collected in the bungalows, then the petitioners are right in agitating such issue that the respondents should be restrained from constructing RCC road any further without excavating the existing asphalt road so as to maintain existing road level at all times.
[x] Again on 18/9/2014, the Corporation has addressed the society about the same situation which is disclosed in previous letter dated 8/9/2014. Both these letters confirm that there is some irregularity on the part of the respondent nos. 2 and 3 if road is constructed over and above the asphalt road, which resulted into 1 ft., higher level of internal road than the ground level of compound of different bungalows. This may be the reason that why the Corporation has failed to produce the copy of work order issued in favour of respondent no. 4 for the work under reference regarding construction of RCC road. If respondent no. 2 fails to produce such vital documents on record, then there is no option but to draw adverse inference against the respondents and in favour Page 40 of 106 HC-NIC Page 40 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT of the petitioners that the grievances of the petitioners are well founded.
[xi] It seems that on 13/2/2015 and 18/2/2015 several members of the society have addressed letter, both to the respondent nos. 2 and 3, regarding several irregularities committed by the respondent no. 4 in continuing the construction of RCC road without excavating asphalt road, wherein it is categorically stated that even after constructing new road, the basic idea to see that there is no water collection in the bungalows would not be fulfilled and on the contrary, water will be collected in the bungalows and, therefore, road level should be so made that there is no collection of water in the bungalows. At this stage, it would be appropriate to recollect that all the members of the society are not technical persons and, therefore, they are concerned with the result only that there should not be collection of water in the compounds of the bungalows in the society and that RCC road cannot be built repeatedly one after another and, therefore, when internal road is to be built by RCC construction, then due care should be taken to avoid all difficulties of the members of the society, more particularly collection of water in the bungalows.
[xii ] Before that, on 19/11/2014 as many as five officers of the Corporation have by joint Page 41 of 106 HC-NIC Page 41 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT letter conveyed the society that irrespective of seven reminders, society has not confirmed the excavation of asphalt road and, therefore, Corporation wants clarity so as to proceed further.
[xiii] By its letter dated 22/12/2014 society has conveyed the Corporation that contractor be requested to confirm the height of the road so as to decide that how-much road is to be dug before constructing RCC road so that society can start such excavation, with a statement that wherever there is no requirement of any digging, contractor can start construction of RCC road.
[xiv] However, it seems that at this juncture there is some problem either within the administration of the society or within the members amongst them because while directing for level of the digging of the road that is to be done by the society, the society has disclosed that if level of any compound gets lower than the level of the road of the society, then it would be responsibility of the particular member of the society to get his compound level adjusted with the level of the road.
[xv] Thereafter, several other members of the society have by their letter dated 25/4/2015 conveyed the Corporation to continue with the work contending that the members who have Page 42 of 106 HC-NIC Page 42 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT objected to construct the road over and above the asphalt road, have never remained present in the meeting of the society and, therefore, now they are not supposed to object the work carried out by the society. However, the society has failed to realize that even while endorsing their signatures by several members on such letter, at least two members at serial nos. 5 and 6 have endorsed with their signatures that in fact society should get technical consultant to manage the road in such a fashion that no water should be collected in any bungalow of the society. Rest of the members have signed below this endorsement and, therefore, practically this endorsement is by majority of the members.
[xvi] Unfortunately, it seems that this is a classic example of misuse of majority opinion in such society or administrative gathering. Because in any case, the aim of the Government Scheme is to see that there should not be collection of water in any manner whatsoever and thereby when the Corporation has repeatedly asked the society to carry out digging and excavation of asphalt road and when society has also once inquired about the depth of digging, it is the duty of the Corporation to verify that whether digging has started or not, instead of constructing RCC road on unexcavated and existing asphalt road so as to increase the road level by 1 ft., and thereby allowing the possibility of water collection in Page 43 of 106 HC-NIC Page 43 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT individual bungalows, which would certainly result into several problems including health issues.
[xvii] Therefore, if the respondent nos. 1 and 2 being State authorities are not taking measures to resolve the problem of the people at large and more particularly affecting the petitioners while utilizing the public fund, the affected persons can certainly seek for appropriate directions against such State authorities and to that effect irrespective of majority decision by the majority members of the society not to excavate the road only to save cost, cannot be treated as an inter-
se dispute between the members of the society and society so as to attract the specific provisions of special enactment like Gujarat Cooperative Societies Act.
19 In response to such defence by the respondent no. 2, the petitioner has filed affidavit-in-rejoinder on 12/6/2015. The sum and substance of such rejoinder can be summarized as under :
• Contractor - respondent no. 4 is working for and on behalf of respondent no. 2 • Contractor has to work under the instructions issued by the Corporation and as per terms and conditions of such work order if RCC road has to Page 44 of 106 HC-NIC Page 44 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT be constructed after excavating the old asphalt road, then there cannot be any deviation from the said work order and its terms and conditions.
• At present, at least in one division - part of the society, old asphalt road has not been excavated so also sewerage line, gas pipeline, electricity cables, etc., have not been shifted and no provision has been made for storm water drains, which certainly amounts to deviation from the terms and conditions of the Scheme.
• Corporation should not allow the contractor to make mockery of the Scheme which may result into misery to the members of the society.
• When Scheme and policy and work order is confirming to dig the road upto 1 ft., and to excavate the existing asphalt road to maintain the level of the ground of the bungalows and the road suitably to avoid collection of water, the respondent no. 2 cannot rely upon the society for consent of carrying out construction on the existing road.
• The respondent no. 2 has failed to avert that what was shown and agreed level upto which road was to be constructed.
• The respondent no. 2 Corporation has tried to protect the contractor because of political Page 45 of 106 HC-NIC Page 45 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT pressure.
• The contractor and some members of the society, who were duped by the contractor, have though initially informed that the road level would not be increased if it is constructed upon the existing asphalt road, failed to intimate them in advance that road level would be increased by approximately 1 ft., so as to save the labour and thereby Rs.3 lacs to Rs.5 lacs.
• In para [8], the letters produced by the respondent no. 2 with its affidavit in reply, have been referred which are already taken care of in previous paras.
• With reference to all such communication under reference, it becomes clear that there was no agreement with reference to the height of the road that was to be constructed and Corporation had time and again informed the society that many of the members of the society are objecting for the construction of new RCC road above the existing asphalt road because their compounds/ ground level would fall below the road level and, therefore, existing asphalt road is required to be excavated before the construction of RCC road can be carried out. But society has failed to initiate such excavation and permitted the contractor to continue with the construction of RCC road on existing asphalt road.Page 46 of 106
HC-NIC Page 46 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT • In parts 2 and 4 of the society, the road was constructed after excavating old asphalt road and, therefore, there cannot be an exception of excavating the road so far as part-1 is concerned, only because the contractor is different and is having sound relations with the other respondents and political support.
• The Corporation is an instrumentality of the State Government and responsible for ensuring that any project undertaken by it is completed in proper and satisfactory manner and in the benefit of public at large, irrespective of internal disputes between the members and management of the society.
• Under the Scheme when 80% of the construction cost is paid by the State Government- public exchequer, such money cannot be allowed to be misused either by the Corporation or by the contractor in collusion with some of the members or office bearers of the society.
• Pending the litigation, some of the members have again conveyed the society to cancel the contract of respondent no. 4 because of complaints against him and to carry out the existing work by excavating the old asphalt road.
• Several other difficulties are mentioned in Page 47 of 106 HC-NIC Page 47 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT such affidavit which is proved by photographs annexed, showing the collection of water in the bungalows with copy of the notice dated 18/5/2015 and letter signed by several members as referred hereinabove.
20 Whereas respondent no. 3 society has also objected to entertain such petition by filing small affidavit in reply with several annexures on 29/6/2015. The sum and substance of the defences taken by the society may be summarized as under :
* None of the legal or fundamental rights of the petitioners are violated so as to initiate such proceedings.
* Society is a co-operative society established in the year 1959 with 313 plots and divided into four parts for the purpose of convenience. However, the management of the society is conducted by common body.
* Out of the estimated cost of Rs.3,28,74,469/-, society has paid Rs.65,74,894/- being 20% of the project expenditure, by cheque in February 2014 to the Corporation - executing agency or authority under the Scheme.
* The Corporation has vide letter dated 12/5/2014 informed the society regarding Page 48 of 106 HC-NIC Page 48 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT construction of road and paver block with work order assigned to four different contractors. Fortunately the society has agreed that Corporation has informed it that since the level of the compounds of some of the houses is likely to be lower than the road level, the existing tar road might be required to be excavated and that society was requested to excavate the existing tar road. However, Corporation has by letter dated 22/5/2014 called upon the Secretary of the society to pass resolution in general meeting of the society to the effect that the society has no objection if RCC road is made on the existing tar road and the society would have no objection if ground level of some of the bungalows gets lower than the level of the new road.
* After narrating the history on the subject, thereafter, in para 4.5 it has been disclosed that in the general meeting dated 29/6/2014 when the question as to whether the RCC road be made over the existing road or not, was put to vote amongst the members; 22 votes were cast in favour of excavation of the road, whereas 21 votes were cast in favour of RCC road on the existing road. Relevant communication and documents to this extent are annexed with such reply wherein Annexure- R-E is such resolution dated 29/6/2014, wherein it is categorically recorded that the majority has decided to excavate the existing asphalt road before constructing RCC road.Page 49 of 106
HC-NIC Page 49 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT * Unfortunately, for one or another reason, on 12/7/2014 one letter was circulated by several members to reconsider the decision dated 29/6/2014 and on 15/8/2014 general meeting was called for wherein resolution no. 11 regarding the subject matter discloses that it is resolved as per majority that there should be Executing Committee for taking care of such work and members of such committee would consult the members of different parts of the society and the contractor and for the purpose, necessary circular was to be issued.
* In the same resolution, it is endorsed that the society has got enough fund to carry out excavation of the road if so required and if necessary, fixed deposit from the Bank of Baroda can be encashed. Therefore, again there is no resolution or confirmation by the society to construct the road without excavating the existing asphalt or tar road.
* The meeting of the Executing Committee was held on 18/9/2014 wherein also it has been decided that wherever necessary asphalt road is to be excavated to see that water from internal road goes to the TP road.
* Other minutes of Executing Committee meeting are though referring the work, they are not much Page 50 of 106 HC-NIC Page 50 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT material at present.
* By letter dated 26/11/2014 again several members have conveyed the Corporation to carry out the work at the earliest, conveying that the water from society should be drained out on TP road. Therefore, practically this is a technical issue which can be taken care of by the respondent no. 2 Corporation and opinion by Executing Committee of the society or few members may not be relevant when work of excavating asphalt road is very well there in the work order issued by the Corporation to the contractor.
* In view of such fact, even if some of the members have discussed the issue regarding excavation of work either in favour or against the excavation, it would certainly not affect the terms and conditions fixed by the Corporation so as to see that there is no water collection in any of the bungalows.
21 The respondent no. 2 Corporation has filed further affidavit on 26/6/2015 now producing a copy of the resolution no. SJY/102012/227-Gh dated 19/4/2012 issued by the Urban Development and Housing Department of the Gujarat State regarding 'Swarnim Jayanti Chief Minister's Urban Development Scheme'. It is contended that pursuant to such resolution, the respondent no. 3 society has applied on 15/9/2012 Page 51 of 106 HC-NIC Page 51 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT and agreed to contribute 20% cost for resurfacing of the road of the society under such scheme wherein 80% of the cost would be borne by the State Government. Letter of the society dated 15/9/2012 is now annexed with such affidavit. However, now Corporation is relying upon communication dated 12/2/2014 by the society whereby the society has conveyed in the minutes of its general body meeting that if any change is to be made in the compound of the bungalow considering the level of the road, then it is to be done by the members at their own cost. However, perusal of entire minutes makes it clear that there was issue and discussion on the point of leveling of the road, but ultimately it is stated that the society has agreed to construct the road over and above the asphalt road so as to keep the level of the road of the society parallel to TP road so as to avoid collection of the water on the road of the society. Based upon such resolution, society has by its letter dated 29/5/2014 conveyed to Corporation about such decision and, therefore, Corporation has now contended that they are working as per decision of the society and that there is no lis or contract between the petitioners and respondent Corporation and thus such individual grievance of the petitioners cannot be ventilated under Article 226 of the Constitution because the petitioners are members of the society and, therefore, only society can agitate such issue Page 52 of 106 HC-NIC Page 52 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT since the petitioners have no individual rights when society has resolved that level surfacing of the road should be in proportion of the TP road. If we peruse the resolution referred in previous para, it becomes clear that the State Government has agreed to construct internal road of the society by appropriate mode viz., Damar paving, stone paving or resurfacing including RCC road, so also necessary street line and water pipelines if cooperative society agrees to spend 20% amount of the total cost. Therefore, when 80% amount is to be used from public fund, implementation of such scheme can certainly be scrutinized by High Court in case of its improper execution by anyone including its nodal agency or the beneficiary like the society, etc., more particularly when the petitioners are suffering on account of execution of such scheme in improper manner. The reasons are obvious because under the scheme, the nodal agency is Gujarat Municipal Finance Board and thereby local municipal Corporation s, which are entitled to get 5% amount of the cost towards their administrative expenditure and, therefore, now when the Corporation is going to charge 5% amount of the total cost, then they cannot escape from their liability to carry out the work in accordance with the provisions of the scheme, so also in accordance with the necessity and requirement of the work, which certainly includes technical aspects. Therefore, they cannot escape from their liability to be impartial and Page 53 of 106 HC-NIC Page 53 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT transparent so as to avoid any irregularity in execution of such scheme. In the present case, when the petitioners are able to point out not only several irregularities, but damages and injuries that may result due to such irregularities, there is reason for the petitioners to challenge such work and to seek appropriate directions to carry out such work in accordance with its true perspective and requirement. The scheme is also providing for an in-house technical sanction by the executing and managing agency like respondent no. 2. In para 6 of the scheme, it is specifically stated that such technical approval is to be accorded by the Engineer or Regional Office of the Road & Building Department in case of urban development, whereas in case of Municipal Corporation, from the Engineering Department of the municipality for according in-house technical sanction. Therefore, the crucial question which would arise in these petitions is to the effect that whether in-house technical team of respondent no. 2 Corporation has ever inspected the place and accorded technical sanction and if yes, then there is no reason to deviate from such technical sanction, based upon the opinion of the members of the society as invited by the Corporation. Whereas, if no technical sanction is accorded and thereby the Corporation is relying upon the advice of the society, then also Corporation should be held responsible for not confirming Page 54 of 106 HC-NIC Page 54 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT technical sanction and also utilizing 80% amount for executing work from public money and in view of such position, this Court is certainly having jurisdiction to scrutinize that whether everything is in order or not and to issue appropriate writ, when the petitioners are able to disclose certain irregularities and damages and injuries to several members of the society, irrespective of the decision by the society to go ahead in a particular manner.
22 The resolution of the scheme also provides for third party inspection of the work done, in para 9 of the resolution, wherein empaneled agencies can be selected as third party inspector to carry out the inspection of the work and to check whether it is properly done or not. For such inspection, such agency is allowed to spend 1% of the grant. In sub-para [c] of para 9 there is a provision for periodical inspection for which even format is to be decided by Gujarat Urban Development Department. Therefore, if there is no periodical inspection of the work done at the respondent no. 2 society, then also it is irregularity and it attracts jurisdiction of this Court to interfere with it and to pass appropriate order to see that everything is done in accordance with rules and scheme and to avoid damage to the public at large and to see that there is no collection of water in the society, which is the basic objective of the entire work.
Page 55 of 106HC-NIC Page 55 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT 23 The petitioners have also filed affidavit-in-rejoinder on 7/7/2015 in response to the affidavit-in-reply filed by the respondent no. 3 society, wherein it is contended that -
* The respondent no. 2 has colluded with respondent no. 3 in committing breach of the rules and regulations for constructing RCC road in question.
* He is not in possession of the tender documents floated by the respondent no. 2 for the purpose.
* The respondent no. 2 has deliberately chosen not to file tender documents in these petitions though respondent no. 3 is also in possession of the same. They have also chosen to suppress such documents. It seems that the only reason would be to save cost of excavation and when contractor i.e. respondent no. 4 is having political connection, the respondent nos. 2 and 3 are trying to oblige him.
* When the respondent no. 3 has agreed that all the four divisions/ parts of the society are managed by common body, then there cannot be a separate decision for division no. 1 only because of different contractor, more particularly when other contractors have Page 56 of 106 HC-NIC Page 56 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT excavated existing asphalt road before constructing RCC road.
* It is certainly necessary to disclose on record that how road has been constructed in other three divisions of the society by other three contractors, since respondent no. 3 deliberately disclosed such vital fact, though respondent no. 3 is denying such fact. However, now it is matter of fact that in other three divisions, asphalt road was excavated before constructing RCC road and thereby, road level is not increased.
* In any case, it is clear at the site that road in division no. 1 is 1 ft., higher than the old asphalt road; whereas RCC road made in division nos. 2, 3 and 4 matches old asphalt road.
* The petitioner was not present in particular meeting and, therefore, what is done in the name of minutes of the general body meeting does not make any sense if at all the respondent no. 2 is constructing the road in breach of the scheme and regulations and, therefore, the petitioner cannot be estopped from challenging such illegal and unlawful act.
* Petitioner of Special Civil Application No. 8779/2015 has vouched all minute issues that Page 57 of 106 HC-NIC Page 57 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT happened within the society. However, I am restricting to record only relevant information which are necessary and must to decide present petitions. However, the basic issue is to see that there must not be water logging in the society and that is the purpose for which RCC road is to be built in place of old road under the public scheme through public money. Therefore, when something is to be done from public money, it must be for the benefit of the public and it could not be just an eye wash exercise or activity just to spend entire money for the benefit of some of them.
* Other different societies in such area near Nehru Nagar Cross Road and Shivranjani, have excavated the asphalt road before constructing RCC road. Though there is a greater danger to those societies regarding collection of rain water in their internal roads than the respondent no. 3 society because of the level of the area, despite this, those cooperative societies have rightly adhered to the regulations of the local authority which require excavating asphalt road.
* There is specific allegation that neither the respondent no. 2 nor respondent no. 3 has ever marked the level of RCC road outside the bungalows and all of a sudden they have built RCC road which is 1 ft., higher than the existing road level and drive way of the petitioners. It Page 58 of 106 HC-NIC Page 58 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT is specifically alleged that if markings were done in advance, she would have pointed out the defects before construction of the road, though marking was done in remaining divisions.
* On 24/6/2015 when there was heavy rain, water got collected in all bungalows and most of the members have undergone hardship. However, the respondent no. 3 pleaded on oath that no hardship is going to be faced by any of the members.
* Water was collected upto 6 inches in driveway of the petitioners and, therefore, they could not even step outside the bungalows or inside the bungalows from the road.
* There is specific allegation regarding preferential treatment given to bungalow no. 288 with photographs at the behest of the Secretary of the society.
* Even resolution of the society members that the old asphalt road needs to be excavated before constructing RCC road. Therefore, even after this resolution, Corporation has repeatedly asked for no objection to construct RCC road over and above the asphalt road and misinterpreted the resolution of the society and permitted the contractor to construct RCC road over the asphalt road which resulted into increase in the level of the road by 1 ft.
Page 59 of 106HC-NIC Page 59 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT * The petitioners have never given consent in writing to any of the respondents allowing them to construct RCC road over the old asphalt road without excavation.
* Specific question has been raised that if members of the society agreed to do particular act, then the Corporation allowed such irregular act and in the present case, Corporation has invited a communication to continue such irregular act.
* Several other allegations and facts are disclosed with reference to the internal activities between the members of the society and its administrative committee. However, though the society has referred all such documents and submitted that this is a dispute between the members and the society, for the aforesaid reasons and discussion, I do not think it necessary to reproduce all such allegations and facts, more particularly when I am of the opinion that the dispute is not restricted between the society and its members under the Cooperative Societies Act, but it pertains to ineffective and irregular implementation of the scheme without according technical sanction by the respondent no. 2 and acting upon the advice of the non- technical members of the society by repeatedly inviting particular consent from the society by Page 60 of 106 HC-NIC Page 60 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT the local authority.
24 The petitioner has also filed further affidavit-in-rejoinder in response to the affidavit-in-reply filed by the respondent no. 2 and negatived the contentions annexing letter dated 9/8/2014 signed by the several members of the society conveying about their difficulties and that work must be carried out in accordance with the guidelines.
25 It seems that all the respondents have taken the issue personally instead of resolving it amicably and, therefore, few more affidavits are filed to prove that this is a dispute between the society and its members and that it can be resolved by litigation between the members and the society and that the work is half done and thereby it cannot be stopped or restricted as prayed for by the petitioners. However, in such pleadings, now practically the requisite information has come on record, which is otherwise disclosed in previous paragraphs that in fact the respondent nos. 2 and 3 have committed blunder in constructing RCC road over and above asphalt road without excavating it, which resulted into increase of road level of society by 1 ft., from the level of the ground of the compounds of almost all bungalows and there is no provision for discharging water which would otherwise get collected in such bungalows.
Page 61 of 106HC-NIC Page 61 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT 26 The office bearers of respondent no. 3 society have now come forward with additional affidavit as sur-rejoinder on 24/7/2015, wherein it is categorically reiterated that the core issue is regarding maintenance of road level and not excavation of existing road, that the decision was taken by the members of the society and that in fact there are various letters by the petitioners confirming that the internal road of the society should not become lower in height than external TP road.
27 However, the respondent no. 3 has failed to realize that the core issue is practically neither the level of the road or excavation of the existing road, but it is mainly reconstruction of road so as to see that there is no collection of water in the society because of geographical situation prevalent at the place. Therefore, though in para 5 of such rejoinder, an attempt was made to explain that excavation of existing road would be futile exercise for matching level of internal road with TP road so as to prevent situation of flooding of society by rain water, the fact remains that the collective body of the society and the respondent no. 2 - local authority having a support of technical experts, have failed to realize that if the level of the earth of the compound of all the bungalows is lower than the level of the road of the Page 62 of 106 HC-NIC Page 62 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT society, so also TP road, then rain water would certainly get collected in the compounds of all bungalows and, therefore, if level of internal road of the society is increased so as to match the level of TP road, then on the contrary, the rain water would be speedily collected in the compounds of all the bungalows, level of which now becomes almost 1 ft., lower than the level of the TP road as well as internal road of the society. The basic and core issue is to construct road with requisite facility and provision to see that there is no collection of rain water in case of heavy rain because of the higher level of the TP road constructed by the local authority. In fact such issue has been created by the local authority itself while resurfacing the TP road over and above the existing roads to avoid cost of excavation, but while doing so, they failed to realize or ignored if they have realized the fact that increase in the level of the TP road may result into immediate benefit of non-collection of water on TP road, but ultimately it would result into disaster in the surrounding properties either residential or commercial where there is less space for water to be absorbed by the earth because of existing construction and, therefore, practically it is the local authority which has to take care of all such issues in scheme of resurfacing TP road or internal roads of the society to design everything in such a manner so as to avoid collection of water in any Page 63 of 106 HC-NIC Page 63 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT area. Therefore, if respondent nos. 1 and 2 are trying to take care of such thing by way of spending from public fund, then irrespective of collective decision by the members of the society, practically local authority has to take care of the technical issues and to that extent, respondent nos. 1 and 2 have failed to act as required.
28 Though the respondent no. 3 has referred few letters of the petitioner in such affidavit and though some letters are produced with first affidavit-in-reply, the respondent no. 3 has failed to produce relevant documents in support of their pleadings. So far as a statement in such affidavit that the petitioner has taken a stand till filing of the petition that road level be maintained in such a way that rain water gets discharged on the TP road, now the petitioner has filed affidavit-in-rejoinder on 1/8/2015 categorically contending that she has never addressed such communication to the society. Such averment is also on oath and, therefore, if the respondent no. 3 has not produced copy of any such communication, then there is reason to believe that the petitioner is telling the truth; whereas the respondent no. 3 is trying to mislead the Court by such pleadings. The petitioner has categorically explained that what she has conveyed to the society and that it is practically for other parts of the society and Page 64 of 106 HC-NIC Page 64 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT not for the part where she is residing and she has explained all other relevant discussion and communication with the society with her difficulties if road level is increased. There is substance in all such submissions. There are several other factual details with reference to the inter-se discussion between the parties which are not much material at present.
29 Based upon such averments and pleadings on record and considering the rival submissions, this Court has advised the parties to settle the dispute amicably amongst themselves so as to see that there is some provision while completing the pending work, but with a clear vision that there should not be collection of any water in any manner whatsoever or to see that there may not be uncontrolled position in case of heavy rain or otherwise, then at least to make appropriate arrangement to see that even in case of heavy rain and even in case of collection of water immediately after rain, it gets discharged at the earliest and may not remain either in the compounds of the bungalows of the society or within the society for longer period to avoid situation of spreading of epidemic diseases, because ultimately it is the sole issue which needs to be taken care of so far as entire exercise is concerned. In response to such attempt, even the Court has agreed to the request of all the concerned to have a look of the actual Page 65 of 106 HC-NIC Page 65 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT position prevailing at the place.
30 In continuation of such exercise, the petitioner has filed affidavit on 17/2/2016 disclosing certain facts and annexing certain opinion.
31 In background of the above pleadings, learned advocate for the petitioners has submitted that there is a conjoint action by the State, local authority and the society pursuant to resolution which is under reference and, therefore, when the petitioners are seeking to carry out the work purely as per such scheme and work order issued under such scheme and thereby when resolutions of the general meeting of the society are not under challenge, this Court has jurisdiction to entertain such writ petition. It is further contended that initially resolution by the society is in fact confirming excavation of old asphalt road and, therefore, the change in the resolution by the members of the society is unwarranted when it is not supported by any technical advice or technical report and when the petitioner is able to file on record an opinion of technical expert confirming that construction of RCC road over and above existing asphalt road and thereby increasing road level almost by 1 ft., would result into inconvenience to the members of the society in case of heavy rain. It is further submitted that even after specific Page 66 of 106 HC-NIC Page 66 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT reference, respondent nos. 1 to 3 have failed to disclose relevant documents on record and, therefore, there is reason to believe that those documents are in favour of the petitioners. In addition to it, practically the petitioners have relied upon their pleadings and documents which are on record and discussed hereinabove.
32 The petitioners have also relied upon a decision in the case of Binni Ltd. v. V. Sadasivan reported in AIR 2005 SC 3202, more particularly paras 9 to 11, 28 to 30 and 32 of the judgment. Considering the volume of said judgment, I do not wish to reproduce the relevant paragraphs of said judgment, but the sum and substance of said judgment is to the effect that a writ of mandamus or remedy under Article 226 is pre-eminently a public law remedy, which may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. Such writ is admirably equipped to serve as a judicial control over administrative actions and could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is Page 67 of 106 HC-NIC Page 67 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action.
33 As against that, the respondent no. 1 has nothing more to say except to adopt arguments of respondent nos. 2 and 3. Whereas for respondent no. 2 Ld. Sr. Counsel Mr. SN Shelat has submitted as under :
33.1 There is no lis or privity of contract between individual members of the society and Corporation and there is no nexus between them and, therefore, writ is not maintainable or petitioners are not entitled to any relief against the respondent no. 2 Corporation. He is relying upon documents produced by the respondent no. 2 with its further affidavit dated 26/6/2015 [pages 256- 279 of the record]. All such documents are already referred and discussed hereinabove and with reference to all documents, this Court has categorically discussed, observed and determined in relevant paragraphs that on the contrary such documents confirm that there was item of excavating road while awarding work contract, but even thereafter, Corporation has repeatedly invited the society to resolve that no excavation is required and instead of relying Page 68 of 106 HC-NIC Page 68 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT upon their own technical experts and instead of finding out a solution to avoid collection of water in the residential zone, the local authority has created chaos, more particularly when other parts of the society where contract was assigned to other contractors, the existing asphalt road was already excavated irrespective of level of TP road so as to see that level of internal road does not increase from the ground level of compound of different bungalows in all such different parts. Therefore, there is no substance in such documentary evidence by the respondent to deny to exercise any powers to refuse to grant any relief in favour of the petitioners.
33.2 So far as maintainability of writ petition and locus standi of the petitioners are concerned, though it is submitted that the petitioners have no legal right to enforce against the local authority, which is associated with the society and that the dispute is between the petitioners being members of the society and the society and thereby it would be subject matter under section 96 of the Gujarat Cooperative Societies Act against the management of the society and, therefore, when the society has not raised any grievance, members have no right to agitate the dispute with the Corporation and members are bound by resolution of the society and no individual rights can be enforced Page 69 of 106 HC-NIC Page 69 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT in such writ petitions; the answer, irrespective of several decisions referred by the respondent no. 2, is certainly found in the decision referred by the petitioners in the case of Binni Ltd. [supra] since it is a settled legal position, I do not wish to reproduce details of all such judgments considering the volume of this judgment. But the fact remains that irrespective of lis between the members of the society and local authority, this is not a simple issue of a contractual undertaking by the Corporation from the society, but the Corporation is working as a nodal agency under the scheme of respondent no. 1 State Government, which is spending 80% of the project cost for the benefit of the public at large, more particularly members of such residential society and, therefore, if executing agency and society being simply administratively connected with such execution, are not taking care of the requisite issues or if they are doing some improper and/or illegal activities and thereby if there is wrongful exercise of powers or refusal to perform duties as per law by any State authority, then certainly the High Court has jurisdiction to exercise its powers under Article 226 of the Constitution, as emphasized in the case of Binni Ltd. [supra]. However, since Ld. Senior Counsel for respondent no. 2 has referred several decisions, they are required to be scrutinized and to verify that whether any of such decisions over-rides and over-reaches the Page 70 of 106 HC-NIC Page 70 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT decision in the case of Binni Ltd. [supra] or not.
[i] Daman Singh v. State of Punjab reported in AIR 1985 SC 973, wherein the Hon'ble Supreme Court was dealing with the provisions of Punjab Cooperative Societies Act, but the fact remains that it was a litigation wherein constitutional validity of such Act was under challenge so as to declare it as ultra vires and, therefore, what is observed in such judgment by the Hon'ble Supreme Court is with reference to the constitutional validity of such Cooperative Act and not with reference to the jurisdiction or locus standi of a member of the society in any manner whatsoever. Therefore, irrespective of other observations in paras 10 and 11 of such judgment, which are practically with reference to the rights of the members of the society in case of amalgamation of different societies, those observations are not material in case where member of the society is challenging either wrongful exercise of powers or refusal to perform duties by the State Government and its implementing agencies viz., respondent no. 2 local authority in the present case; whereas respondent no. 3 society is administrative or supervisory authority only so far as the execution of work under reference is concerned, for which public fund is being utilized for the benefit of the public at large including members of the society i.e. the Page 71 of 106 HC-NIC Page 71 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT petitioners herein. Therefore, philosophy and concept of the Cooperative movement is impregnated with the public interest and the amalgamation is in the interest of the Cooperative Societies is certainly in the public interest or can only be to secure the proper management of the societies. In this reported case, the dispute was between the members and cooperative society, more particularly with reference to amalgamation or activity or business of the society is concerned, what is observed by the Hon'ble Supreme Court in the said case may be pertinent, but such observation is not relevant in the present case, because in the present case, there is no issue of business or amalgamation of the society, but the issue is whether respondent no. 2 is right in not performing its duties as per technical requirement of the work under reference and that whether they are right in not performing its duties as per technical requirement for the work under reference and that whether they are right in seeking advice of the non-technical members of the society for matching to do particular item of the work order when such item was already executed in other parts of the society by other contractors and more particularly when the petitioners have categorically alleged that this is nothing but a preferential and discriminatory exercise so as to help the contractor, who is having some political support. Reference to such situation is to be Page 72 of 106 HC-NIC Page 72 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT recollected that even after such allegation, respondent no. 4 contractor has though repeatedly remained present and pressed for early disposal of the petitions, never dared to file any reply to confirm any technical issue, which is raised and discussed herein. Therefore, this judgment would also not help the respondent.
[ii] State of U.P. v. C.O.D. Chheoki Employees' Coop. Society Ltd., reported in AIR 1997 SC 1413, wherein the Hon'ble Supreme Court has dealt with the provisions of the UP Cooperative Societies Act with reference to nomination of members in a society by the Government because of reservation of seats for weaker sections of the society and, therefore, the Hon'ble Supreme Court has held that such policy of the Government cannot be interfered with by the Court when the core issue before the Court was again constitutional validity of the Act. Therefore, as discussed in the previous paragraph, only because of some observation made by the Hon'ble Supreme Court regarding Co- operative Act, when issue was regarding validity of the Act and dispute was between the committee of the members of the society and the State that who should be nominated as a member of the society, thereby when there is no dispute regarding any activity carried out from the public fund and by the public authority, such judgment would not help the respondents.
Page 73 of 106HC-NIC Page 73 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT [iii] Harekrishna K Vadhwani v. Vasupujya Smruti Coop. Housing Society Ltd., Vibhag-1 reported in 2004 [1] G.L.H. 257, wherein Ld. Single Judge of this High Court has dealt with provisions of section 17[2] of the Gujarat Cooperative Societies Act. However, it is also dealing with the issue regarding amalgamation of the society and when there is no dispute on the point that the general body of the society has approved the division, the Court has held that there is no need to issue separate notices to individual members. Therefore, though there is a reference of validity of collective decision, the fact remains that the core issue before the Court was regarding amalgamation of the society. Therefore, this judgment would also not help the respondent.
[iv] Karmacharinagar Cooperative Housing Society Ltd. v. State of Gujarat reported in 2013 [3] G.L.R. 2682, wherein Ld. Single Judge of this High Court has while dealing with the provisions of section 13 of the Gujarat Cooperative Societies Act read with Rules framed thereunder, held that hearing of individual member is not contemplated, but it is again with reference to amendment to the bye-laws of the society and there is no issue regarding wrongful exercise of powers or refusal to perform duties by the State or its authorities while spending public money Page 74 of 106 HC-NIC Page 74 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT for the betterment of the members of the society. Therefore, this judgment would also not help the respondent.
[v] Zoroastrian Cooperative Housing Society Ltd. v. District Registrar, Cooperative Societies reported in AIR 2005 SC 2306, wherein the Hon'ble Supreme Court was dealing with the provisions of sections 4, 24 and 30 of the Gujarat Cooperative Societies Act with relevant rules thereunder, whereby the bye-law of the society is restricting membership to members of one community only and thereupon the Hon'ble Supreme Court has held that it is not illegal when Act or Rules do not prohibit it because concept of 'public policy' under Constitution cannot be brought in to hold such restriction as invalid. There was altogether different issue before the Hon'ble Supreme Court in such case inasmuch as the Court was deciding the freedom of contract against fundamental rights confirming that freedom of contract cannot be curtailed by relying on fundamental rights. Though such phrase seems to be attractive with reference to the discussion herein, the fact remains that in the present case, we are dealing with the execution of certain activities for which public fund is being utilized by the State authorities and if while utilizing public fund, there is wrongful exercise of powers or refusal to act in accordance with the requisite details and Page 75 of 106 HC-NIC Page 75 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT technical issues which may ultimately result into chaos at the given place instead of resolving problems of the public at large, I am of the clear opinion that observations made by the Hon'ble Supreme Court in all such cases practically are with reference to the facts and circumstances of those cases and, therefore, those cases cannot be relied upon to hold that in a given set of facts and circumstances, which are emerging on record and discussed hereinabove, this Court cannot exercise its jurisdiction so as to direct the respondents to execute the work in accordance with technical advice so also terms and conditions for such work. The fact remains that the respondent nos. 1 to 3 have not dared to produce the work order on record and that in fact there is admission by the respondent no. 2 that there is item of excavation of old asphalt road and that such item was completed in other parts of the society, but for the reasons recorded and discussion made hereinabove, only for one part of the society where the petitioners are residing, the respondent no. 2 has invited the society to confirm that excavation is not required and the society has without any technical support, confirmed such situation without realizing that it would result into chaos. Whereas in other parts of the society, old asphalt road was excavated. Therefore, this judgment would also not help the respondent.
Page 76 of 106HC-NIC Page 76 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT [vi] J.N. Chaudhary v. State of Haryana reported in [2014] 11 SCC 249 : AIR 2014 SC 2018, wherein the Hon'ble Supreme Court was dealing with the allegation of fraud and obtaining inadequate price in auction sale of land of the cooperative society. The respondent has relied upon several observations made in paragraphs 46 and 47, wherein it is observed that a collective decision by general body of the society reflected in the form of resolution cannot be doubted or suspected and it would not be proper for the Court to accept the minority view, but what is material for saying so is "that in view of minority view based on no evidence except assumption and speculation". Therefore, what is material to hold as such is to scrutinize that whether there is evidence or whether some assumption and speculation is made. Thereby, if there is some evidence regarding fraud or otherwise, then this judgment would not help any litigant in any manner whatsoever. In the present case, it is evident from the record and discussion which is made hereinabove that - [1] none of the respondents have dared to produce relevant work order to examine that whether it was directed and conveyed by the Corporation at initial stage to excavate the existing asphalt road or not. On the contrary, as discussed hereinabove, there is categorical admission by the respondent no. 2 that there was such dispute, but its cost is to be borne by the society.
Page 77 of 106HC-NIC Page 77 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT However, thereafter the Corporation has repeatedly invited a resolution from the society that RCC road may be constructed above the asphalt road. Thereby, it is clear evidence on record that the Corporation has acted against the terms and conditions of the work order and, therefore, there is reason for any Court to interfere if there is wrongful exercise of power or refusal to perform duties as required by any public authority.
[2] There is ample evidence on record to confirm that the internal road of the society is increased by almost 1 ft., from the ground level of compound of the bungalows, which would certainly result into collection of water in such compounds.
[3] The society does not have technical expertise to decide that whether excavation is required or not and it is to be decided by the Corporation and when the Corporation has already constructed road in other parts of the society by excavating old road, there is prima-facie evidence regarding some discrimination, all such evidence is probably lacking in the case before the Hon'ble Supreme Court and, therefore, the Hon'ble Supreme Court has held that minority view based on no evidence except assumption and speculation cannot be relied upon. Therefore, such judgment would not help the Corporation.
33.3 The respondent no. 2 has also submitted Page 78 of 106 HC-NIC Page 78 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT that when husband of the petitioner has participated in some meetings of the society, then now petitioner is estopped by law in taking such action when there is collective decision by the society. It is also further submitted that the petition is filed on 19/5/2015 only and practically work is near to completion and, therefore, now allowing the petition would result into extra cost which cannot be borne by the Corporation since it has to carry out the work as per the scheme of the Government, wherein grant is fixed. This argument itself makes it clear that the Corporation is carrying out the work under the scheme which is sponsored by the State and thereby Corporation is working as a State for the benefit of public and if they are not executing the work order as per the terms and conditions and thereby if there is a chaos of the issue, then certainly sufferer has a right to challenge such discriminatory action by the local authority inasmuch as local authority has already constructed RCC road in other parts of the society only after excavating existing asphalt road. Therefore, there is no substance in all submissions advanced by the respondent no. 2.
34 Whereas Ld. Advocate Ms. Megha Jani for the respondent no. 3 society has, relying upon the letters, which are produced on record at pages 160 to 162, 166, 168, 219, 222, 226, 227 and 405, submitted that there is consent by the Page 79 of 106 HC-NIC Page 79 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT petitioners in constructing RCC road over and above existing asphalt road inasmuch as there is signature of the husband of the petitioner of Special Civil Application No. 8779/2015 in letter dated 13/2/2015 wherein it is stated that height of the road be increased to avoid collection of water in their part. All such letters are referred, discussed and scrutinized while considering the pleadings and documents with determination about the contents of such letters and, therefore, repetition is avoided. However, it is clear that such discussion has categorically confirmed that there is no substance in the submissions by the society inasmuch as practically respondent no. 2 Corporation itself has specifically admitted in their communication that the work order includes an item of excavating existing asphalt road and, therefore, the core issue is whether Corporation can let go such item only because of some unknown reasons for which they have repeatedly invited resolution of the society without considering technical issues in let going such item and thereby allowing the height of the internal roads of the society to be increased by almost 1 ft., from the ground level of compounds, which would result into collection of water in the compounds of the bungalows.
34.1 In short, none of the documents referred by the society confirms that everything is proper Page 80 of 106 HC-NIC Page 80 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT in existing activity which is being carried out as a Public Private Partnership Scheme by the Government, but through the respondent no. 2 for the benefits of the members of the society and, therefore, ultimately such work must be carried out in accordance with technical requirement for such work rather than majority view of the members of the society.
34.2 She has also submitted that there are altogether new arguments raised by the petitioners in reply and, therefore, it cannot be taken into consideration and that there is no prayer with reference to the implementation of the scheme and, therefore, this is not a petition for proper implementation of the scheme and hence when the society has per majority decided to complete the construction of new road under the scheme without excavating existing tar road, then the petitioners being members of the society cannot raise such issues. It is further submitted that such issues can be raised only within the purview of the provisions of the Cooperative Societies Act before the competent Court and not before this High Court. However, for the reasons recorded hereinabove, I do not find any substance in such submission for the simple reason that even the society has admitted that resolution of the society is not under challenge though it is submitted that on such count petition is not maintainable. It is further submitted that there Page 81 of 106 HC-NIC Page 81 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT is disputed questions of law and facts and, therefore, also writ petition cannot be entertained. However, the fact remains that the disputed issue on facts is practically confirmed on record and it is admitted position that out of different parts of the society, only in one part of the society, the Corporation and contractor, so also the society have tried to construct the internal road without excavating existing asphalt road though it was done in other parts of the society. Therefore, when there is no scope of further evidence to prove the dispute and thereby when only legal issue remains to be determined and when it is touching to the proper execution of a scheme by the State Government though its agency being local authority, writ petition is maintainable and, therefore, there is no substance in such submission. In support of her submissions, Ms. Jani has relied upon the decisions in the case of State of U.P. v. C.O.D. Chheoki Employees' Coop. Society Ltd., [supra], Daman Singh v. State of Punjab [supra] and J.N. Chaudhary v. State of Haryana [supra], which are also referred by Ld. Sr. Counsel Mr. Shelat and discussed hereinabove. Hence, in view of aforesaid discussion, such judgments would not help the respondent no. 3.
35 In view of above discussion, it would be appropriate to recollect few other decisions of the Hon'ble Supreme Court so as to confirm that Page 82 of 106 HC-NIC Page 82 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT writ petition is maintainable because even otherwise the jurisdiction of the High Court under Article 226 of the Constitution is wide enough to deal with several situations. Such decisions are as under :
[i] Ayaaubkhan Noorkhan Pathan v. State of Maharashtra reported in AIR 2013 SC 58, wherein while considering the issue regarding locus standi with reference to writ petition under Article 226, the only condition to be checked is regarding legal injuries that may be suffered by the petitioner, wherein the Hon'ble Supreme Court has held that -
"Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a Court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can ofcourse, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court Page 83 of 106 HC-NIC Page 83 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the Courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same."
[ii] Akalakunnam Village Service Coop. Bank Ltd. v. Binu N reported in AIR 2015 SC 1115, wherein the Hon'ble Supreme Court has held that all the acts by the cooperative society do not fall within the purview of the Cooperative Societies Act and, therefore, entertained writ petition against cooperative society.
[iii] Board of Control for Cricket in India v. Cricket Association of Bihar reported in AIR 2015 SC 3194[1], wherein while considering writ jurisdiction under Article 226 of the Constitution, the Hon'ble Supreme Court has held that -
"Suffice it to say that if the Government not only allows an autonomous/ private body to Page 84 of 106 HC-NIC Page 84 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT discharge functions which it could in law takeover or regulate but even lends its assistance to such a non-Government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action. The BCCI a registered society may not be State under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India."
It is further held that even administrative actions of the State is subject to judicial review where principles remain the same that whether action assailed is of State, or its instrumentality or of non-governmental body performing public functions. Therefore, in the present case, when the society and local authority are performing public functions of restructuring road level to avoid collection of rain water, their selective action and discrimination is certainly subject to writ jurisdiction.
[iv] The extreme example is the decision rendered in Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Page 85 of 106 HC-NIC Page 85 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT Workers reported in AIR 2011 SC [supp] 828, wherein the Hon'ble Supreme Court has even confirmed to award compensation to the victims of disaster for improper act by the public body viz. Delhi Jal Board in a writ jurisdiction.
Therein, while dealing with the issue no. (3) that whether the High Court was entitled to issue interim direction, the Supreme court has in para 24, observed and held that the State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. In our case same principle would apply for the general public when question is about their health.
[v] In Ayaaubkhan Noorkhan Pathan [supra] Hon'ble the Supreme Court has observed as under:
"22. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus- standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, in articulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then Page 86 of 106 HC-NIC Page 86 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT the court may examine the issue and in exceptional circumstances, even if his bona fides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo motu, in such respect.
[vi] In Ghulam Qadir v. Special Tribunal and Ors., (2002) 1 SCC 33 : (2001 AIR SCW 4022), Hon'ble the Supreme Court considered a similar issue and observed as under:-
"There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper- technical grounds. .... In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi." (Emphasis added) Page 87 of 106 HC-NIC Page 87 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT [vii] In Godde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828, this Court examined the issue of locus standi of a President of Panchayat Samithi to challenge the decision of the Government in the matter of location of Primary Health Centre and held:
"Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental right can also approach the court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.
Has the appellant a right to file the petition out of which the present appeal has arisen? The appellant is the President of the Panchayat Samithi of Dharmajigudem. The villagers of Dharmajigudem formed a committee with the appellant as President for the purpose of collecting contributions from the villagers for setting up the Primary Health Center. The Page 88 of 106 HC-NIC Page 88 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT said committee collected Rs.10,000/- and deposited the same with the Block Development Officer. The appellant represented the village in all its dealings with the Block Development Committee and the Panchayat Samithi in the matter of the location of the Primary Health Center at Dharmajigudem. His conduct, the acquiescence on the part of the other members of the committee, and the treatment meted out to him by the authorities concerned support the inference that he was authorized to act on behalf of the committee. The appellant was, therefore, a representative of the committee which was in law the trustees of the amounts collected by it from the villagers for a public purpose. We have, therefore, no hesitation to hold that the appellant had the right to maintain the application under Art. 226 of the Constitution. This Court held in the decision cited supra that "ordinarily" the petitioner who seeks to file an application under Art. 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Art. 226 of the Constitution at his instance is, therefore, maintainable."
[viii] In the case of Real Estate Agencies, Page 89 of 106 HC-NIC Page 89 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT M/s. v. Govt. of Goa reported in AIR 2012 SC 3848, Hon'ble the Supreme Court has held that there is no universal rule or principle of law which debars the Writ Court from entertaining adjudication involving disputed questions of fact. In fact, in the realm of legal theory, no question or issue would be beyond the adjudicatory jurisdiction under Article 226, even if such adjudication would require taking of oral evidence. However, as a matter of prudence, the High Court under Article 226 of the Constitution, normally would not entertain a dispute which would require it to adjudicate contested questions and conflicting claims of the parties to determine correct facts for due application of the law.
It is also further observed that reading of the order of the High Court would go to show that its refusal to interdict the developmental works undertaken or about to be undertaken is on the ground that the petitioner has an efficacious alternative remedy, i.e. a suit for injunction. The Writ Court exercising jurisdiction under Article 226 of the Constitution is fully empowered to interdict the State or its instrumentalities from embarking upon a course of action to detriment of the rights of the citizens, though, in the exercise of jurisdiction Page 90 of 106 HC-NIC Page 90 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT in the domain of public law such a restraint order may not be issued against a private individual. This, of course, is not due to any inherent lack of jurisdiction but on the basis that the public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the Writ Court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated.
[ix] In ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. [2004 (3) SCC 553], the precise position of the law in this regard has been explained in paragraphs 16, 17 and 19 of the judgment in the course of which the earlier views of this Court in Smt. Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors.[1969 (3) SCC 769] :
(AIR 1970 SC 802) and Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council [1970 (1) SCC 582] : (AIR 1971 SC 1021) has been referred to. The aforesaid paragraphs of the judgment in ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. (supra) may, therefore, be usefully extracted below:
"16. A perusal of this judgment though shows that a writ petition involving Page 91 of 106 HC-NIC Page 91 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution of India. This decision again, in our opinion, does not lay down an absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. In this view of ours, we are supported by a judgment of this Court in the case of Gunwant Kaur v. Municipal Committee, Bhatinda, 1969 (3) SCC 769: (AIR 1970 SC 802) where dealing with such a situation of disputed questions of fact in a writ petition this Court held: (SCC p. 774, paras 14-16) : (Paras 14 to 16 of AIR) "14. The High Court observed that they will not determine disputed question of fact in a writ petition.
But what facts were in dispute and what were admitted could only be determined after an affidavit-in- reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex Page 92 of 106 HC-NIC Page 92 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.
15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have Page 93 of 106 HC-NIC Page 93 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."
The above judgment of Gunwant Kaur (supra) finds support from another judgment of this Court in the case of Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, 1970 (1) SCC 582: (AIR 1971 SC 1021) wherein this Court held: (SCC p. 587, para 13) "Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary."
xxx xxx xxx xxx
19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur (supra) this Court even went to the extent of holding that in a writ petition, if the facts require, Page 94 of 106 HC-NIC Page 94 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.
[x] In Delhi Development Authority v. Bhola Nath Sharma reported in AIR 2011 SC 428 Hon'ble the Supreme Court has held that the law is well settled that a necessary party is one without whom any order cannot be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding. (See Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue.) (AIR 1963 SC 786) Therefore in present case when Local Authority is implementing agency of the scheme of the State, it is, therefore, necessary party in such proceedings.
[xi] In Karnataka Industrial Areas Development Board v. M/s. Prakash Dal Mill reported in AIR 2011 SC 1570 Hon'ble the Supreme Court has held that the High Court has the jurisdiction to satisfy itself on the material on record that the authority has not acted in an arbitrary or erratic manner. Para 18 reads as Page 95 of 106 HC-NIC Page 95 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT under:
18. The Board being a State within the meaning of Article 12 of the Constitution of India is required to act fairly, reasonably and not arbitrarily or whimsically. The guarantee of equality before law or equal protection of the law, under Article 14 embraces within its realm exercise of discretionary powers by the State. The High Court examined the entire issue on the touchstone of Article 14 of the Constitution of India. It has been observed that the fixation of price done by the Board has violated the Article 14 of the Constitution of India. It is correctly observed that though Clause 7(b) permits the Board to fix the final price of the demised premises, it cannot be said that where the Board arbitrarily or irrationally fixes the final price of the site without any basis, such fixation of the price could bind the lessee. In such circumstances, the Court will have the jurisdiction to annul the decision, upon declaring the same to be void and non-est. A bare perusal of Clause 7(b) would show that it does not lay down any fixed components of final price. Clause 7(b) also does not speak about the power of the Board to revise or alter the tentative price fixed at the time of allotment. The High Court has correctly observed that Clause 7(b) does not contain any guidelines which would ensure that the Board does not act arbitrarily in fixing the final price of demised premises. Since the validity of the aforesaid Clause was not challenged, the High Court has rightly refrained from expressing any opinion thereon.Page 96 of 106
HC-NIC Page 96 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT
19. Even though the Clause gives the Board an undefined power to fix the final price, it would have to be exercised in accordance with the principle of rationality and reasonableness. The Board can and is entitled to take into account the final cost of the demised premises in the event of it incurring extra expenditure after the allotment of the site. But in the garb of exercising the power to fix the final price, it can not be permitted to saddle the earlier allottees with the liability of sharing the burden of expenditure by the Board in developing some other sites subsequent to the allotment of the site to the respondents. The respondents have placed on record sufficient material to show that acquisition and development of land in the industrial area has been in phases. Some areas and segments are fully developed and others are in different stages of development. Sites and plots have been allotted at different times and locations.
Thus, it cannot be said that all the allottees form one class. Earlier allottees having sites in fully developed segments cannot be intermingled with the subsequent allottees in areas which may be wholly undeveloped. Such action is clearly violation of Article 14. We are also of the opinion that the Board cannot be permitted to exercise its powers of fixing the final price under Clause 7(b) at any indefinite time in the future after the allotment is made. This would render the word "as soon as" in Clause 7(b) wholly redundant. As noticed earlier, in the present case, the Board has sought to fix the final price after a gap of 13 years. Such a course is not permissible in view of the expression "as soon as" contained in Clause 7(b).
Page 97 of 106HC-NIC Page 97 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT
20. In our opinion, the High Court correctly concluded that the fixation of final price by the Board is without authority of law. It violates Article 14 of the Constitution of India being arbitrary and unreasonable exercise of discretionary powers.
36 Therefore, now considering the above facts, circumstances, documentary evidence and contents of the affidavits available on record, if we have to answer the issues raised in paragraph 12 hereinabove, it can certainly be said that the petitioners have right to seek appropriate orders and directions from this Court by seeking appropriate writ under Article 226 of the Constitution of India for the reasons disclosed and discussed in above paragraphs and more particularly when the action of the respondent no. 2 is challenged on the ground that the work in question is being carried out by public money since 80% amount of the project is being spent by the respondent no. 1 State. Whereas respondent no. 2 is nodal agency to carry out such work and respondent no. 3 society has though contributed 20% amount of the cost and though members of the society are beneficiaries, actually work is to be carried out by respondent no. 2, for which respondent no. 2 has assigned work order i.e. contract to respondent no. 4 and, therefore, this is an act of the State authority from public money and hence High Court can certainly issue appropriate writ under Article 226 of the Constitution in case of improper Page 98 of 106 HC-NIC Page 98 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT activities by any of State authorities. It is also evident from the record that the petitioners are certainly affected by such improper activities by the respondents and, therefore, they have right to seek appropriate writ. It cannot be ignored that the dispute is not between the members of the society and society and that too for and with reference to the administration of the society, but it is mainly for non-activity or improper activity by respondent nos. 1 and 2 in collusion with respondent nos. 3 and 4. Therefore, I hold that the petitioners have locus standi to file such petitions and thereby they are entitled to initiate proceedings under Article 226 and if there is substance in their grievance, then they are also entitled to appropriate writ in their favour.
37 So far as second issue regarding Court's jurisdiction to grant reliefs as prayed for in these petitions is concerned, the same set of discussion with reference to available pleadings and documentary evidence on record, makes it clear that when ultimate goal of the activity is to see that there is no collection of water in the society and in bungalows and that when the work order issued by the respondent no. 2 is having a condition or item regarding excavation of existing asphalt road upto 1 ft., non- completion of such item by the respondent no. 4 and accepting such work without excavating Page 99 of 106 HC-NIC Page 99 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT asphalt road by the respondent no. 2 under the pretext of consent given by the respondent no. 3 society, it is clear and certain that there is some discrimination and malfeasance and misfeasance and when such act affects the lives of the petitioners, then this Court has absolute right to pass appropriate directions to the authorities who are executing such work from public fund, to act in accordance with law, rules, scheme, so also terms and conditions of work order already issued by them.
38 Therefore, the discussion hereinabove can be summarized as under for allowing these petitions :
• For non-disclosure of material information and non-production of work order by the respondent nos. 2 to 4, adverse inference needs to be drawn against them.
• For not replying against the notice and specific pleadings, as discussed hereinabove, adverse inference is drawn.
• There is admission of difficulty of the members of the society, both by the society and the Corporation • There is admission by Corporation that there is an item of excavating asphalt road in the work order issued by them, even though asphalt road Page 100 of 106 HC-NIC Page 100 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT was not excavated.
• Casual manner of existing work done by the contractor, for which complaint has been filed by the members of the society regarding improper work.
• There was complaint against the contractor.
• It is an admitted position that though there is provision in the work order to manage for storm water line and drainage system, etc., the same has not been taken care of by the contractor.
• When technical issues are involved in the work, consent of the society to let go particular item is not material.
• Initially, society has informed the Corporation to request the contractor to confirm the height of the road so as to decide that how- much road is to be dug, by its letter dated 22/12/2014, then no deviation is permitted even if it is agreed by majority of the members of the society.
• Asphalt road is already excavated in other parts of the society.
• Even society has agreed that during initial Page 101 of 106 HC-NIC Page 101 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT meeting on 29/6/2014 when voting was carried out, 22 votes against 21 votes are in favour of excavating the asphalt road.
• When work is sanctioned from the funds allotted by the State Government, there is no reason to deviate from the work order and there is no proper implementation of the terms and conditions of the scheme and work order inasmuch as third party inspection was never carried out for which budgetary provision is made in the scheme.
39 For such purpose, to avoid dragging such dispute longer and to arrive at amicable settlement between the parties before forthcoming rainy season, an attempt was made by local inspection of the place and by understanding the different alternative modes. However, none of the parties has agreed to any specific suggestion so as to put an end to such litigation by making proper arrangement for discharging natural rain water from the society and compounds of each bungalow. Therefore, now there is no option for this Court but to allow these petitions and to confirm the interim relief granted earlier with following directions :
I The respondent nos. 1 to 4 are directed to select appropriate option, after technical scrutiny of the area considering local geography Page 102 of 106 HC-NIC Page 102 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT to see that by selecting which option the rain water would not collect in the compounds of the bungalows within the society.
II The respondent nos. 1 to 4 are also directed to disclose that when asphalt road was excavated in other parts of the society, why it was not done in Part - I only for the reason that level of the TP road outside the society is higher than the level of the road of the society. In that case, practically it is the duty of the respondent no. 2 Corporation to disclose on record that how and why they have increased level of the TP road without considering the level of the residential and commercial areas and visualizing that increasing road level would allow the rain water to get collected in such residential and commercial zone and it would result into several issues including health problem. They are also directed to produce on record the work order issued to each contractor for similar work.
III Since parties have not agreed between themselves amicably, may be because of the issue that who will bear the cost of best option to be selected to avoid water logging, by this order, they are directed to select either of the following modes or all of them and to carry out the work in accordance with such option so as to achieve the ultimate goal of prevention of water Page 103 of 106 HC-NIC Page 103 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT logging in the society. For carrying out the work as per such option, the respondent nos. 1 to 4 have to fix their inter-se modality.Option No. 1
To Construct new percolating well in the society for disposal of the rain water by laying pipeline on both the sides of the utility land of the RCC road and connecting the same to the percolating well in the society.Option No. 2
To lay pipeline in the utility land on both the sides of the RCC road of the society and to connect the same to the storm water line of T.P. Road outside the society.Option No. 3
To construct catch-pit in compound of each bungalow of the society which is to be connected to the nearest drainage line of the Corporation and which is at lower level than the level of the compounds of the bungalows. Such line may be laid in the 1 ft., area kept unattended on both the sides of the road right from compound wall till its end so as to connect it with any drainage line.
IV The respondent nos. 1 to 4 are Page 104 of 106 HC-NIC Page 104 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT restrained from constructing the road without submitting technical detail and report as per
above direction and confirming on record as to which option is being selected by them.
V The respondent nos. 1 to 4 have to
submit such report to this Court within four
weeks from the date of receipt of writ of this judgment. On receipt of such report by respondent nos. 1 to 4, this Court may, if so required after hearing both the sides, select and direct to carry out the work as per any of the suitable options. Till then, interim order shall remain in force.
VI So far as prayer regarding taking action against the responsible person by the respondent no. 5 is concerned, considering the facts and circumstances emerging from the record, I do not see any reason, more particularly when nothing more has been pressed on such issue to pass any order at this stage.
40 The Registry shall issue writ in above terms. The Registry shall, after receipt of report from the respondent nos. 1 to 4, list the matter before appropriate Court after taking necessary orders from the Hon'ble Chief Justice, if so required, to place the matter before the Page 105 of 106 HC-NIC Page 105 of 106 Created On Wed Apr 27 02:43:36 IST 2016 C/SCA/8779/2015 CAV JUDGMENT appropriate Court and if so required, even as Public Interest Litigation.
In the result, the petitions are accordingly allowed. Rule is made absolute to the aforesaid extent. Interim relief shall remain in force till further order is passed after selection of suitable option, as aforesaid.
In view of the above, civil application does not survive and it stands disposed of accordingly.
(S.G.SHAH, J.) * Pansala Page 106 of 106 HC-NIC Page 106 of 106 Created On Wed Apr 27 02:43:36 IST 2016