Chattisgarh High Court
Vinay Dubey vs State Of Chhattisgarh on 14 March, 2022
1
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
WP(PIL) No. 2 of 2021
Vinay Dubey S/o Shri Late A.L. Dubey Aged About 52 Years Advocate , R/o
Ware House Road Near Shaffered School, Bilaspur , District Bilaspur
Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Secretary, Department of Urban
Administration And Development , Naya Raipur , Chhattisgarh
2. Bilaspur Smart City Ltd. Through Its Managing Director / CEO Vikash
Bhawan, Nehru Chowk , Bilaspur , Chhattisgarh 495001
3. Raipur Smart City Ltd. Through Its Managing Director / CEO Chatrapati
Shivajee Maharaj Outdoor Stadium , Budhapara, Near Vivekanand Sarovar,
Raipur Chhattisgarh 492001
4. Saamanya Sabha Nagar Palik Nigam Bilaspur Through Speaker Sheikh
Nazeeruddin, Nagar Nigam Town Hall Bilaspur Chhattisgarh
5. Mayor In Council Nagar Palik Nigam Bilaspur Through Mayor Ramsharan
Yadav, Town Hall, Nagar Nigam, Bilaspur Chhattisgarh
6. Saamanya Sabha Nagar Palik Nigam Raipur Through Speaker Pramod
Dubey, Nagar Nigam Office Kali Bari, Raipur Chhattisgarh
7. Mayor In Council Nagar Palik Nigam Raipur Through Mayor Ezaz Dhebhar,
Nagar Nigam, Nagar Nigam Office Kali Bari, Raipur Chhattisgarh.
8. Union of India Through Secretary, Ministry Of Housing And Urban Affairs,
Govt. Of India New Delhi.
---- Respondents
(Cause Title taken from Case Information System) 2 14/03/2022 In respect of IA Nos. 04 of 2021 and 05 of 2021 filed by respondent No.2, namely, Bilaspur Smart City Limited and IA Nos. 06 of 2021, 08 of 2022 and 10 of 2022 filed by respondent No.3, namely, Raipur Smart City Limited, we have heard Mr. Sudiep Shrivastava, learned counsel for the petitioner on 10.03.2022, 11.03.2022 and today also.
We had heard Mr. Mukul Rohatgi, learned Senior Counsel, appearing for respondent Nos. 2 and 3 assisted by Mr. Sumesh Bajaj and Mr. Rishabh Bajaj on 10.03.2022, and Mr. Sumesh Bajaj and Ms. Misha Rohatgi Mohta, on 11.03.2022.
We have also heard Mr. H.S. Ahluwalia, learned Deputy Advocate General, appearing for respondent No.1, Mr. Harsh Wardhan, learned counsel, appearing for respondent No.4, Mr. Ashok Kumar Verma with Mr. Gajendra Kumar Sahu, learned counsel, appearing for respondent No.5, Dr. Sudeep Agrawal, learned counsel, appearing for respondent Nos. 6 & 7, and Mr. Ramakant Mishra, learned Assistant Solicitor General for Union of India, appearing for respondent No.8.
The Union of India launched a mission called 'Smart Cities Mission', the objective being to promote cities that provide core 3 infrastructure and give a decent quality of life to its citizens, a clean and sustainable environment and application of 'Smart' Solutions'. The focus is on sustainable and inclusive development and the idea is to look at compact areas, create a replicable model which will act like a light-house to other aspiring cities. The core infrastructure elements in a Smart City includes: (i) adequate water supply, (ii) assured electricity supply, (iii) sanitation, including solid waste management, (iv) efficient urban mobility and public transport, (v) affordable housing, especially for the poor, (vi) robust IT connectivity and digitalization, (vii) good governance, especially e-Governance and citizen participation, (viii) sustainable environment, (ix) safety and security of citizens, particularly women, children and the elderly, and
(x) health and education.
The purpose of Smart Cities Mission is to drive economic growth and improve the quality of life of people by enabling local area development and harnessing technology. The mission is to cover 100 cities and its duration was to be for a period of five years beginning from the Financial Year 2015 -16 to the Financial Year 2019-20. However, it is common ground that the mission is extended till June, 2023, the same having been continued in light of the evaluation done by the Ministry of Urban Development. A total number of 100 Smart Cities have been distributed amongst the Sates and Union Territories 4 on the basis of equitable criteria, which is not necessary to go into for the purpose of disposal of these IAs.
There is a process of selection of Smart Cities and for the State of Chhattisgarh, Raipur, Bilaspur and Atal Nagar have been identified as Smart Cities. The implementation of Smart Cities Mission at the city level is done by a Special Purpose Vehicle (SPV) created for the purpose. The SPV, according to the Mission Guidelines, will be headed by a full-time Chief Executive Officer (CEO) and would have nominees from the Central Government, the State Government and the Urban Local Bodies (ULB) on the Board of Directors. The SPV will be a limited company incorporated under the Companies Act, 2013 at the city-level, in which the State/UTs and the ULB will be the promoters having 50:50 equity shareholding. Funds provided by the Government of India in the Smart Cities Mission to the SPV will be in the form of tied grant and kept in a separate Grant Fund, which is to be utilized only for the purposes for which the grants have been given. The Smart Cities Mission will be operated as a Centrally Sponsored Scheme (CSS) and the Central Government proposes to give financial support to the mission to the extent of Rs.48,000 crores over five years, i.e., on an average of Rs.100 crores per city per year. An equal amount, on a matching basis, is to be contributed by the State/ULB and thus, about Rs. One Lakh crore of 5 Government/ULB funds are to be made available for smart cities development.
The Public Interest Litigation was filed on 14.12.2020 alleging that in the garb of SPV, the State Government had actually usurped the powers and functions of the elected bodies of Bilaspur Nagar Nigam and Raipur Nagar Nigam as during the period from 2016 to 2020, several development works have been carried out by Bilaspur and Raipur SPV without any monitoring and supervision of the elected bodies of Bilaspur and Raipur. At no stage of planning, approval, execution or payment, the file of any tender issued by the SPV is brought before the Mayor / Mayor-In-Council / Samanya Sabha despite the work being done in the notified areas of the Nagar Nigams.
At this juncture, it will be relevant to take note of the order dated 14.09.2021 as all the IAs under consideration had been filed in view of the aforesaid order dated 14.09.2021. The said order reads as follows:
"Mr. Sudeep Shrivastava, Advocate for the petitioner.
Mr. Vikram Sharma, Deputy Govt. Advocate for the State/respondent No.1.6
Mr. Mateen Siddique, Advocate for respondent Nos. 2 & 3.
None for respondent Nos. 4 to 7.
Mr. Ramakant Mishra, ASG for Union of
India/respondent No.8.
Heard on prayer for interim relief (I.A. No.
01/2020).
Learned counsel for the petitioner would argue that the development of the urban area by and under the executive control of Smart City Limited, constituted for the development of Raipur and Bilaspur, does not denude the local body namely Corporation of two cities and their authorities as provided under the Chhattisgarh Corporation Act, but the government's company has been carrying out development work without taking approval of various projects by the local body, which is statutorily mandated under the Municipal laws. He further submits that in a matter of development under the smart city project, the provisions of Municipal Corporation Act had to be complied with. Therefore, the projects which are being implemented by the Smart Cities of Raipur and Bilaspur are illegal and without the authority of law. He 7 would pray that the projects in future be not allowed to function without due approval/procedure as required under the Constitution of India and Chhattisgarh Municipal Corporation Act.
Mr. Siddique, learned counsel appearing for respondent Nos. 2 & 3 would submit that the projects of Smart City is being implemented under a nationally sponsored scheme framed by the Central Government in order to ensure speedy development of identified cities and the modality of execution of plan for development of identified cities as Smart City and execution is in the realm of administrative function and is not open to challenge.
Learned ASG would submit that in the present case, the reply has not been filed by the Union of India so far, therefore, he may be granted time to file the reply.
Learned State counsel would submit that this case is required to be argued at length.
Learned counsel for respondent Nos. 2 & 3 would submit that if any interim order is granted, it may affect the ongoing projects and very purpose for development of the cities under the Smart City Project. 8
Having heard learned counsel for the parties and various submissions which have been made before us, we are of the opinion that looking to the very nature of the dispute raised before us and that under the Smart City Project, developments work of two cities have already been undertaken by the agency, we are not inclined to pass any interim order in the ongoing projects. In case respondent Nos. 2 & 3 formulate future projects, it should be brought to the notice of this Court before its implementation.
Learned ASG is granted one last opportunity to file reply, if any, within four weeks. Rejoinder, if any, may also be filed within two weeks thereafter.
List this matter after 6 week."
Mr. Mukul Rohatgi, learned senior counsel for respondent Nos. 2 and 3 has submitted that the averments made in this Public Interest Litigation would go to show that the present is a proxy petition on behalf of the Urban Local Bodies and therefore, the Public Interest Litigation, at any rate, ought not to have been entertained as the elected representatives of the Urban Local Bodies would have approached this Court if there was any encroachment on their powers and functions, as the petitioner would like to contend. The 9 Public Interest Litigation was filed most belatedly after original period of the Smart Cities Mission had expired and it is another matter that the mission is continued for the period up to June 2023. He relies on a decision of the Hon'ble Supreme Court in Esteem Properties Pvt. Ltd. Vs. Chetan Kamble and others, reported in 2022 SCC Online SC 246, to contend that, by no stretch of imagination, can it be said that the elected representatives in the Urban Local Bodies are handicapped by ignorance, indigence and illiteracy so as to enable the petitioner to maintain the application.
Placing reliance on a letter dated 28.10.2021 issued by the Joint Secretary, Ministry of Housing and Urban Affairs, Mr. Mukul Rohatgi, learned senior counsel submits that the CEOs of the SPVs have been impressed upon to see to it that all work orders are issued before March, 2022 and that when extension of Smart Cities Mission was granted, a written commitment was given by the Smart Cities Mission that no project funded by Smart Cities Mission funds (Center/State), will be left to be work ordered post March 2022. It is also submitted that there is every possibility of funds being lapsed if the work orders are not issued, as indicated.
It is submitted that implementation of the projects as indicated in the IAs in question would enure to the benefit of the citizens and public interest lies in allowing such projects to be completed without 10 any hindrance. Mr. Rohatgi has drawn our attention to the Smart Cities Mission Statement & Guidelines, with special reference to mission monitoring at National Level, State Level and City Level to highlight that there is larger public participation in the implementation of the projects under the Smart Cities Mission.
During the course of proceedings today, in view of the order dated 11.03.2022, two IAs being IA No. 13/2022, pertaining to respondent No. 2 and IA No. 14/2022, pertaining to respondent No. 3 have been filed bringing on record the projects in which the work orders can be issued immediately.
Mr. Bajaj has drawn our attention to a letter dated 07.01.2022 issued by the Minister of Housing and Urban Affairs to the Chief Minister of the State of Chhattisgarh, to submit that beyond 31.03.2022, no fund will be released by the Center in respect of projects in which work orders have not been issued.
Mr. H.S. Ahluwalia, learned Deputy Advocate General and Mr. Ramakant Mishra, learned Assistant Solicitor General endorsed the submissions of Mr. Mukul Rohatgi and submitted that the projects for which permission is sought for should be allowed to be continued for the benefit of the local public.
Mr. Sudiep Shrivastava, learned counsel for the petitioner 11 submits that none of the elected members of the Nagar Nigam and not even a Mayor had been made Director of the SPV and only the Commissioner of the Municipal Corporation has been appointed as CEO. He submits that Article 243W of the Constitution of India provides, amongst others, that the Urban Municipalities are to implement schemes in relation to matters listed in Twelfth Schedule, which includes urban planning including town planning, regulation of land-use and construction of buildings, planning for economic and social development, roads and bridges, water supply for domestic, industrial and commercial purposes, public health, sanitation conservancy and solid waste management etc., which are now sought to be undertaken by the SPV. In substance, he submits that the scheme of Smart City as implemented in the State of Chhattisgarh is in violation of the Nagar Palik Nigam Adhiniyam, 1956 and is violative of three tier democratic system of governance, as envisaged in Article 243P to 243ZC of the Constitution of India.
Refuting the submission of Mr. Rohatgi, Mr. Shrivastava submits that if the elected representatives, for whatever reasons, do not challenge an arbitrary and illegal action of the Smart Cities Mission in encroaching upon the field reserved for Municipalities, a conscious citizen has a right to espouse such cause in a public interest litigation and in that context, he has referred to a decision in 12 the case of Manohar Joshi v. State of Maharashtra and Others, reported in (2012) 3 SCC 619, with particular reference to paragraph 185 to impress upon the Court that when the cause or issue relates to matters of good governance in the constitutional sense, a person is entitled to canvass the issue in a public interest litigation. He has also placed reliance on a decision in the case of S.R. Bommai v. Union of India, reported in (1994) 3 SCC 1, which is essentially a case under Article 356 of the Constitution of India, to impress upon the Court the significance of the three-tier democratic system. He submits that if permission is granted, as sought for in the IAs, the petition will become infructuous.
Mr. Ashok Kumar Varma, learned counsel, appearing for respondent No.5 endorsed the submissions of Mr. Sudiep Shrivastava. However, Mr. Varma submits that he is not supporting the petitioner so far as the prayer for quashing of formation of Bilaspur Smart City Company Limited and Raipur Smart City Company Limited is concerned, but would contend that the Board of Directors of the same should be reconstituted with the elected members of the Nagar Palik Nigam. Mr. Harsh Wardhan, learned counsel, appearing for respondent No. 4 as well as Dr. Sudeep Agrawal, learned counsel, appearing for respondents No. 6 and 7 also endorse the submissions of Mr. Varma.
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We have considered the submissions of learned counsel for the parties and have also perused the materials on record for the purpose of disposal of IAs.
At this juncture, this Court would not adjudicate on the issue as to whether the Public Interest Litigation is maintainable or whether it should not have been entertained.
It is seen that at the State Level, there is a High Powered Steering Committee (HPSC) where select Mayors and Municipal Commissioners/Chief Executive of the ULBs and Heads of the concerned State Line Departments are Members and that there is public participation. A perusal of the responsibilities of the HPSC as indicated in the guidelines would go to show that it is tasked to provide guidance to the Mission and provide State level platform for exchange of ideas pertaining to development of smart cities. At the city level, a Smart City Advisory Forum is to be established to advise and enable collaboration among various stakeholders, which includes the District Collector, MP, MLA, Mayor, CEO of SPV, local youths, technical experts, and at least one member from the area, who is a (i) President/Secretary representing registered Residents Welfare Association, (ii) Member of registered Tax Payers Association / Rate Payers Association, (iii) President/Secretary of slum level federation and (iv) Members of a Non-Government Organisation (NGO) or 14 Mahila Mandali/Chamber of Commerce/Youth Associations.
Raipur Smart City Limited and Bilaspur Smart City Limited were incorporated on 16.09.2016 as Government Companies under the Companies Act, 2013. The petitioner has himself averred that on 17.08.2016, the Board of Directors of Bilaspur Smart City Limited and Raipur Smart City Limited had been constituted. Bilaspur Smart City Limited and Raipur Smart City Limited have continued to undertake projects. However, till the expiry of the original period after the Financial Year 2019-2020, no issue was raised that the SPV usurped the powers and responsibilities and had encroached the domain of the ULBs. As late as in the year 2020, this Public Interest Litigation came to be filed and by order dated 14.09.2021, this Court rejected the prayer for stay of the ongoing projects. At the same time, this Court observed in the order dated 14.09.2021 that in case the respondent Nos. 2 and 3 formulate future projects, it should be brought to the notice of this Court before its implementation. It is in view of the above observation of this Court in the order dated 14.09.2021, the present IAs No. 4/2021, 5/2021, 6/2021, 8/2022 and 10/2022 had been filed.
A perusal of the aforesaid IAs would go to show that projects were at various stages. In respect of some of the projects, they are 15 yet to be sanctioned.
In IA No. 13/2022, vide Annexure R-2/E, the respondent No. 2 has given a list of 14 projects in which work orders can be issued immediately. Similarly, in IA No. 14/2022, vide Annexure R-3/F, the respondent No. 3 has given a list of 42 projects in which work orders can be issued. The value of 14 projects as listed in Annexure R-2/E of IA No. 13/2022 is Rs. 46.89 Crores and the value of 42 projects as listed in Annexure R-3/F of IA No. 14/2022, is Rs. 25.12 Crores.
Mr. Bajaj has submitted that efforts are being made to issue before 31.03.2022 as many work orders as possible, subject to permission granted by this Court, so that funds do not lapse.
Where the projects are ready for implementation by way of issuing work orders, and as almost six years have gone by since the incorporation of Bilaspur Smart City Limited and Raipur Smart City Limited and when the Smart Cities Mission itself is coming to an end in about a year and three months as it stands today, taking note of the belated approach to this Court, we are of the opinion that refusing to grant permission for implementation of the projects would not be in public interest, notwithstanding the contention raised by Mr. Shrivastava that the SPVs have encroached into the territory of the ULBs, which contention will have to to be considered in a full-scale 16 hearing.
Accordingly, IAs No. 4/2021, 5/2021, 6/2021, 8/2022, 10/2022, 13/2022 and 14/2022 are disposed of providing that the respondents No. 2 and 3 may go ahead with regard to the projects mentioned in the two annexures i.e. Annexure R-2/E of IA No. 13/2022 and Annexure R-3/F of IA No. 14/2022.
Sd/- Sd/-
(Arup Kumar Goswami) (Gautam Chourdiya)
Chief Justice Judge
Amit