Judgment:
Swatanter Kumar, C.J.
1. The petitioner who claims to be a social activist and General Secretary of North Mumbai District Congress Committee has brought this petition under Article 226 of the Constitution of India praying that the Municipal Corporation of Greater Mumbai and other public authorities be directed by writ of mandamus or any other writ, order or direction to demolish the illegal construction raised on plot No. 256/257 which has been reserved for Municipal Primary School under the relevant plan and rules. It is averred in the petition that the cost of education is increasing every passing day and the reservation for the purposes of Municipal Primary School is to achieve the object of protection of fundamental right available to the children to have free education. The authorities are bound to construct the Municipal Primary School at CTS Nos.256 and 257 of Malad Village at R/South Ward at Kandivali, North Mumbai to ensure that poor people of nearby areas are able to get education.
2. The petitioner states that after visiting the site he came to know that instead of construction of a Municipal Primary School, a park was being constructed in the name of beautification of the plot in question. He, therefore, made complaints to the concerned authorities. The petitioner also learnt that one former MLA of North District Shri Nandakumar Kale has brought the fact to the notice of the concerned authorities but no action has been taken. Despite persistent complaints and pursuing the matter, the petitioner came to know that some councilor of Bharatiya Janata Party, the ruling party in the Corporation is behind the said illegal construction and that is why no action is being taken. The petitioner gave legal notice to the respondent No. 2 and requested that the unauthorized construction should immediately be stopped as the said construction was being done in an illegal manner and at the cost of the public exchequer. Again, letters were written on 12th February, 2008 and 20th February, 2008 but of no effect. The petitioner has also placed on record letter of reservation dated 14.11.2006 and copy of the plan of the said property as Exhibits `C' and `D' respectively. The contention of the petitioner is that once the reservation is made, plans are finalized, thereupon without following the due process of law and effecting dereservation, if permissible, no construction for the purpose other than for which the reservation was made can be raised on the property in question.
3. In reply affidavit filed on behalf of the Corporation, an objection is taken that the Writ Petition is not maintainable under Article 226 of the Constitution of India, while on facts it is stated that CTS No. 256 and 257 of Village Malad (N) is affected by the reservation of Municipal Primary School and it was acquired for that purpose under the provisions of the Land Acquisition Act, 1894. The Special Land Acquisition Officer declared his Award on 18th January 1982 and handed over the possession of the land on 15th February 1991 along with one ground floor structure occupied by four commercial occupants. It is stated that the the plot is being used by slum dwellers for dumping garbage and debris inside the plot which is causing health hazard to the nearby residents and at the request of the nearby residents and local Councilor, this has been removed and repair work was undertaking raising the height of the compound wall, fixing M.S. Grill on the compound wall and fixing the M.S. Gates etc. Beautification work of the plot was undertaken by constructing path ways along with the periphery of the plot. It is also stated that there was no proposal for construction of primary school in the near future and that why the above said work had been done.
4. The Petitioner then filed a further affidavit denying these allegations and it is stated that the jogging park has been constructed and it is being made into a park. He has also placed on record photographs and the board in front of the premises which shows that all over the plot, sheds are being made, jogging park is made and structure is being raised for making fountains, etc. These photographs show that there is no sign of a primary school being constructed and as per Exhibit 'E', the board showing the photograph of one Yogesh Sagar, who is the local Councillor/Corporator, through the Corporator fund of his constituency has carried out the unauthorized construction on the said plot.
5. Thereafter another affidavit was also filed on behalf of the Corporation after directions to that effect were issued by the Court. In that affidavit dated 16th July 2008, it has been stated that the school is to be constructed and 1600 students would be required to be accommodated in the new school and the Corporation intends to spend huge amount for constructing the school and the sanction for budget is to be provided in the next financial year. It is also stated that a total expenditure incurred for its beautification work is to the extent of Rs. 7,71,000/- from the budget for the year 2007-08.
6. From the above facts, it is abundantly clear that the plot in question was and is reserved for Municipal primary school. This reservation has not been altered and the Corporation was expected to raise construction for a primary school. The law imposes an obligation upon the Corporation to strictly adhere to the construction of a primary school without wasting public money. To provide primary education is a fundamental obligation on the part of the State and all its instrumentalities including the Corporation which is under a mandate to fulfill such obligations. The children have a fundamental right to receive free education. Thus, it was expected of the Corporation to raise the construction of the school without any unnecessary delay. Admittedly, the possession of the plot had been handed over to the Corporation on 15th February 1991 and it is strange that in this long period of 17 years, the Corporation has not even ventured to commence the construction of the school. It could not have ignored its fundamental duty in this fashion. The Corporators and all officers of the Corporation are answerable for their public actions. It is, therefore, a duty that they perform their functions statutorily or otherwise in accordance with law and the constitutional mandate. There is not even a whisper in the entire affidavit as to why the Corporation did not make any provision in its budget for the last 17 years for construction of the school. It certainly is an ex facie failure of its statutory obligation. The Corporator gets his funds from the Corporation i.e. from the public funds. He is expected to act in accordance with law and not to convert the plot reserved for a school into a park or a beautify it as a garden just to please certain sections of the public which may so desire. We cannot ignore the fact that the purpose of reservation was much larger in its public interest than making a garden or a park on that plot. The concept of public accountability and performance of public funds in accordance with the law and for larger public good are applicable to the statutory bodies as well as to its Corporators. Nobody can be permitted to act contrary to law or violate the rules and regulations governing the subject. The well established precepts of public trust and public accountability are fully applicable to functions which emerge from the public servants or even the persons holding public life elected or otherwise. Reference can usefully be made to recent judgment of a Division Bench of this Court in the case of Subhash R. Acharya v. State of Maharashtra and Ors. 2007 (109) BLR 1847:
21. The concept of public accountability has been applied to the decision making process in the Governemnt by the courts for a considerable time. Administrative or executive actions are subject matter of judicial review. Defining this role, the Supreme Court in the case of State of Bihar v. Subhash Singh : [1997]1SCR850 held as under:
In our democracy governed by the rule of law, the judiciary has expressly been entrusted with the power of judicial administrative actions as also of legislation is exercised against the actions of the State. Since the State or public authorities act in exercise of their executive or legislative power, they are amenable to the judicial review.The normal principle that the permanent bureaucracy is accountable to the political executive is subject to judicial review. The doctrine of 'full faith and credit' applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed.
22. The decision of the Delhi High Court in the case of Major General B.D. Wadhwa v. Union of India and Ors. W.P.(C) No. 10630/2006, at this stage can be usefully referred to:
The main line of arguments raised on behalf of the petitioner is that the Court is entitled to investigate the action of the authorities with a view to see, whether it has taken into account matters which ought not to have been taken into account or conversely has refused or neglected to take into account the matters which it ought to take into account. It is also contended that no promotion board or authority can exercise unfettered discretion. The process of selection should essentially be in conformity with the basic rule and should not be arbitrary, discriminatory in its form and conclusion. In support of his contention, he relied upon the judgments of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 (2) All ER 680 and Air Vice Marshal Harish Masand v. Union of India and Ors. 2004 8 Del 429.
15. On the other hand, the learned Counsel appearing for respondent No. 4 with some vehemence contended that the power of judicial review of such administrative actions has inbuilt limitations. 'Reasonableness' and 'Rationality' or even 'Proportionality' of decision making process can be examined within a very limitd scope Refer R.M. Arunachalam v. Commissioner of Income Tax, Madras : (2000)IILLJ648SC .
16. Further, it is contended that the competent authority can select any person, not necessarily the senior most, keeping in view the service profile of the candidate and judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctlyand not the decision as such. In this regard, reliance has been placed to the case of Union of India and Ors. v. Lt. Gen. Rajendra Singh Kadyan and Anr. : AIR2000SC2513 . Emphasizing on the restricted scope of judicial review under Article 226 of the Constitution of India, it is also contended that the Court does not act as an Appeolate Authority and even if a decision taken by the Government does not appear to be agreeable to the Court, the Court would not interfere unless such decision was offending the above rules of law Refer: Ekta Shakti Foundation v. Govt. Of NCT of Delhi : AIR2006SC2609 .
23. Usefully, a reference can also be made in regard to the judgments of the Supreme Court in the cases of (i) Secretary, Jaipur Development Authority, Jaipur v. Daulatmal Jain and Ors. : (1997)1SCC35 ; (ii) Vineet Narain v. Union of India : 1998CriLJ1208 and (iii) Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors. : AIR1991SC537 .
24. On the basis of the undisputed facts, as aforementioned by us, the Court needs to squarely deal with the question whether the decision of the Minister, contrary to the note of the Department and; without complying with the instructions and the procedure provided by rules of business can be termed reasonable, bona fide and free of arbitrariness or it is a decision taken in colourable exercise of power and devoid of public interest....
7. In the case of Secretary, Jaipur Development Authority v. Daulat Mal Jain : (1997)1SCC35 , the Supreme court held that the Ministers are jointly and severally responsible to the Legislature and are publically accountable for the acts or conducts in the performance of the duties. On the same analogy, the Corporators also hold a public office vis-a-vis the Corporation though they are elected, but certainly are accountable for their activities in relation to the affairs of the Corporation. The essential characteristics of 'public office' are (i) authority conferred by law, (ii) fixed tenure of office and (iii) power to exercise some portion of sovereign functions of Government or the body. (Reference can be made to Supreme Court on Words and Phrases (1950-2008) Second Edition, by Justice R.P. Sethi, Former Judge, Surpeme Court of India). These ingredients are quite satisfied in the present case. We are not deciding that question as a legal issue, but have no doubt in indicating that they are publically responsible for their duties which they ought to perform in accordance with law. These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinizing the conduct of every holder of a public office. It is trite that the holders of public office are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. (Reference can be made to the case of Vineet Narain and Ors. v. Union of India and Anr. : 1998CriLJ1208 .
8. The Corporators are thus integral part of administration of the Municipal Corporation and they receive their grant from the Corporation for a public purpose. This grant can hardly be permitted to be used for any unlawful purpose oppressively and opposed to the public welfare.
9. In the case of Subhash Acharya (supra), the Court also made the following observation:
33...The principles of discharging public function are applicable in every democracy and one is expected to bear in mind the in-built limitations caused by basic rule of law and fairness to exercise of power. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision making process but in the decision as well. Every public office is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance. The Minister holds public office though he gets constitutional status and performs his functions under the Constitution, law or executive policy. He is not only responsible for his own act but even of the persons working under him. Public accountability takes within its ambit decisions of the authorities in accordance with Rules, policies and use of discretion circumscribed by requirements of a public office. Governance of rule of law imposes an obligation upon the higher officers in the Government vested with large discretion, to act and take decision with greater conscience and responsibility. There is a fine line of distinction between abuse of power and proper exercise of power. Thus, every action of such Constitutional authority is expected to be in conformity with the prescribed procedure and larger public interest and then alone the action would help to further the goals of fairness in public policy set down in the Constitution of India....
10. The Corporation or any of its officers or public representative were bound by the reservation which had the force of the law. It was expected of the Corporation to construct the school which has not been done over such a long period of 17 years. In our opinion, both the Corporation and its officers have admittedly failed in discharging their duty towards the public at large. Furthermore, the Corporator concerned exceeded his jurisdiction in spending public funds over construction of beautification of a park or jogging park, which admittedly was impermissible keeping in view the reservation. The Corporation and the Corporator both are answerable to public as to why the public funds were spent for such a purpose and why these funds could not be utilized for construction of the school. May be the construction of the school would require much more expenditure, but surely this could be beginning of a cause of a greater legal significance and larger public interest. We have no hesitation in observing that this was not expected of either of the Corporation nor the Corporator that they would ignore their legal and public duty and act contrary to law just to appease certain people. We are hopeful that the Corporation would ensure that in future public funds are not wasted in this absolutely discretionary manner. Every Corporator is expected to spend the public money for a public cause but in accordance with law.
11. In view of our above discussion, we make the Rule absolute and direct as under:
(i) The Respondent Corporation shall construct the primary school on the plot for which it is reserved with complete expeditiousness;
(ii) No money will be spent by the Corporation or the Corporator out of the public funds or even otherwise upon beautification and construction of a park or garden on the plot in question;
(iii) The Commissioner of the Municipal Corporation and other Competent Authority shall conduct an enquiry into this unauthorized and illegal expenditure for a purpose contrary to law and initiate action in accordance with law against the erring Officers, public representatives and fix the responsibility on its Officers or public representatives responsible for this unauthorized and illegal construction and, if necessary, the amount should be recovered from all concerned; 15
(iv) The Competent Authority in the Corporation shall issue appropriate Circular forthwith introducing principles of public trust and public accountability to the function of the Corporation and its Officers and also clearly direct all concerned that no public funds would be spent on any purpose which is contrary to law, like the present case in future.
12. This Public Interest Litigation is accordingly disposed of. No order as to costs.