Larger Public Interest Must Prevail Over Alleged Breach of Contractual Obligations By Corporation Under Article 226: Bombay HC

The Bombay High Court, Nagpur Bench has held that a larger public interest has to prevail over the alleged breach of contractual obligations by the Corporation in the exercise of the discretionary jurisdiction under Article 226 of the Constitution.

A Division Bench comprising Justice A.S. Chandurkar and Justice M.W. Chandwani said, “… given a choice between larger public interest and alleged breach of contractual obligations by the Corporation, larger public interest has to prevail in the matter of exercise of discretionary jurisdiction under Article 226 of the Constitution of India. It is well settled that discretion under Article 226 of the Constitution of India has to be exercised keeping in mind larger public interest and not merely on the making out of a legal point, assuming that one has been made out.”

The Bench was deciding a batch of pleas challenging the communication by which the Nagpur Municipal Corporation (NMC) directed the commencement of the construction of an Elevated Storage Reservoir at the open space of the layout of the Nirmal Nagari Condominium.

Advocates S.S. Ghate and S.D. Khatri appeared on behalf of the petitioner while Senior Advocate Anand Jaiswal and Advocates S.M. Puranik, Y.N. Sambre, and N.R. Nebhani appeared on behalf of the respondents.

Brief Facts -

A land belonged to Nagpur Vikar Sahakari Sut Girni Maryadit and the same was purchased by Nirmal Ujjwal Credit Co-operative Society Limited, Nagpur in an auction held in 2004. After following the prescribed procedure, the said land was submitted by the society to the provision of the Maharashtra Apartment Ownership Act, 1970, and thereafter, by executing a Deed of Declaration the Nirmal Nagari Condominium was formed.

In the layout, two open spaces were shown out of which one was kept open for a playground, and under the Atal Mission for Rural and Urban Transformation (AMRUT), the NMC intended to construct an Elevated Storage Reservoir (ESR) having a capacity of twenty lakh liters of water to cater the need of various localities and to meet water scarcity. The said society objected to the said construction and since the NMC and contractor did not stop the construction work, the two members of the Condominium filed writ petitions before the court.

The High Court in view of the facts and circumstances of the case observed, “It is no doubt true that the communication dated 09.12.2021 issued on behalf of the Condominium while granting its no-objection to the erection of water tank stipulates certain expectations of the members of the Condominium to services to be provided by the Corporation, while agreeing for erection of the water tank. The grievance of the members of the Condominium appears to be non-fulfillment of the conditions stated therein as can be gathered from the statements made in paragraph 24 of its affidavit reproduced hereinabove.”

The Court noted that it would be for the condominium to seek relief in terms of the consent given by it if the facilities sought by them have not been granted.

“… in that regard, the members of the Condominium would have a separate cause of action, if according to them the conditions stated while granting no-objection on 09.12.2021 have not been satisfied by the Corporation. The same cannot be the basis for holding that there was absence of consent of the members of the Condominium for erection of the ESR. … Individual members,if aggrieved ought to raise a grievance in that regard through the Condominium and not independent of it”, said the Court.

The Court further observed that the erection of the ESR is in the larger public interest with a view to facilitate the supply of water to residents of the condominium as well as nearby areas and while granting such consent.

“While granting such consent on 09.12.2021 the members of the Condominium were alive to the fact of scarcity of water in the area. That was the reason for extending consent to the erection of the water tank. … reserving the right of the members of the Condominium to seek appropriate relief against the Corporation in the light of the contents of the communication dated 09.12.2021 while granting consent to the erection of the water tank would serve the interests of justice”, held the Court.

Accordingly, the Court refused to set aside the communication.

Cause Title- Gopal Keshavdev Sharma v. The Nagpur Municipal Corporation & Ors.

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