REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  CIVIL APPEAL No.2619 of 2002

PRAGATI MAHILA MANDAL, NANDED                 ....Appellant   

Versus MUNICIPAL COUNCIL, NANDED & ORS.               ...Respondents

J U D G M E N T   Deepak Verma, J.  

1. How far whip of Public Interest Litigation can  be stretched and used is the moot and foremost question  to be answered in this Appeal, arising out of judgment  and  order  dated  16/17th July,  2001  passed  by  Division  Bench of the High Court of Judicature of Bombay, Bench at  Aurangabad  in  W.P.  No.  925  of  1988  titled  as  Anil  Tryambakarao Kokil (since dead) Vs. Municipal Council,  Nanded and others.

C.A.No.2619/02 …. (contd.)

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2. Appellant  herein  -  Pragati  Mahila  Mandal,  Nanded is before us challenging the said judgment and  order passed by Division Bench, whereby and whereunder  allotment of a piece of plot bearing Survey No. 42 of  Village Assadullabad (Maganpura), admeasuring 75'x 350'  in its favour has been set aside and quashed as being  illegal and void ab initio, with further direction to  Respondent  No.  1,  Municipal  Council,  Nanded  to  take  possession  of  the  said  plot  together  with  building  appurtenant thereto, within a period of eight weeks from  the date of impugned judgment.      Thumb nail sketch of the facts of the case is as  under: 3. Appellant is a Charitable Trust duly registered  under the provisions of Bombay Public Trust Act, 1950. On  14.10.1983,  it  made  a  request  to  Respondent  No.  1  Municipal  Council,  Nanded  (now  Nanded  Waghela  City  Municipal Corporation) for allotment of a plot, out of  the  lands  belonging  to  it,  for  starting  a  school  to  provide  education, especially for girls. Accordingly, in

C.A.No.2619/02 …. (contd.)

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the year 1984, the Administrator, who was then holding  the  charge  of  the  Municipal  Council,  vide  Resolution  dated 22.10.1984 allotted a plot admeasuring 75' x 350'  bearing Survey No. 42 to the Appellant on a 60 years'  lease. 4. It  further  contemplated  that  the  applicable  rental compensation shall be fixed on the basis  of the  rate to be worked out by the Assistant Town Planner,  subject to compliance of the provisions of Section 92 of  the Maharashtra Municipal Councils, Nagar Panchayats and  Industrial Townships Act, 1965 (for short 'The Act'). The  Assistant Town Planner was also required to undertake the  measurements and after fixing boundaries, the said piece  of  plot  came  to  be  handed  over  to  the  Appellant  on  25.10.1984,  after  drawing  a  possession  Panchanama.  However, at that time, the nominal rental compensation  could not be fixed as the State Government was yet to  grant sanction for transfer of the land in favour of the  Appellant, as contemplated under Section 92 of the Act. 5. Respondent No.1, the Municipal Council then in  turn  submitted  a  proposal  to  the  Collector, seeking

C.A.No.2619/02 …. (contd.)

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sanction of the State Government regarding  allotment of  the  aforesaid  plot  in  favour  of  the  Appellant.   The  Assistant  Town  Planner  by  his  communication  dated  5.6.1986  informed  Respondent  No.1  that  rental  compensation for the subject plot for giving it on long  lease of 60 years, would work out at Rs. 6,816/- per  annum.  A representation was made by the Appellant for  reduction of the rental to a reasonable sum, owing to it  being a Charitable Trust, working mainly for the benefit  of girls and women and it had no source of income to pay  such  rental  compensation.   On  reconsideration  of  the  matter, the rental was fixed at Rs. 11 per annum by the  Divisional Commissioner, vide his order dated 12.11.1986,  wherein sanction  was granted under Section 92 of the  Act, for allotment of the subject plot to the Appellant  on a lease for 60 years.  Thus, it was an ex-post facto  sanction granted in favour of the Appellant, after the  possession of the plot was already handed over  to the  Appellant.  It was this allotment of land in favour of  the  Appellant  and  also  other  allotments  made  by  Respondent No.1  in  favour  of  other allottees together

C.A.No.2619/02 …. (contd.)

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with certain donations made by Respondent No.1, Municipal  Council that were the subject matter of challenge in a  consolidated writ petition filed by  Anil Tryambakarao  Kokil (since dead) in the nature of pro bono publico.   6. However, it appears that during pendency of this Writ  

Petition, the sole petitioner Anil Tryambakarao Kokil  expired. It is to be noted here that, following his  demise,  no  application  to  bring  the  Legal  Representatives of the deceased Petitioner on record  was preferred, before the hearing of the writ petition  could commence. Thereafter, instead of directing the  petition  to  have  abated  or  to  have  made  some  alternative  arrangements  (since  his  legal  representatives were not brought on record) to ensure  that some other public spirited person to be brought  in as petitioner to prosecute the petition, in place  of deceased Anil Tryambakarao Kokil, the counsel Mr.  S.C. Bora, who  probably was already appearing for  deceased  Writ  Petitioner,  was  appointed  as  Amicus  Curiae and  was directed to continue to prosecute the  said petition in that capacity of Amicus Curiae. Thus

for  all  practical    purposes,   the   petition  continued   to  be

C.A.No.2619/02 …. (contd.)

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prosecuted  and  heard  even  when  admittedly  the  sole  Petitioner Anil Tryambakarao Kokil had expired long time  back.  7. Thus,  apart  from  examining  the   correctness,  legality and propriety of the impugned order passed by  Division  Bench,  it  is  also  necessary  to  examine  the  effect  of  death  of  the  sole  petitioner  in  a  Public  Interest Litigation, viz., whether the same would stand  abated or can be allowed to be continued without bringing  anyone else in place of the deceased petitioner.  8. The Division Bench had, vide its interim order dated  16.1.2001, considered the question of the effect of the  death of the sole petitioner Anil Tryambakrao Kokil on  the Writ Petition, and whether anyone else is required to  be  brought  in  his  place.  After  due  deliberation,  the  Division Bench then appointed counsel for the petitioner  who was already  appearing as Amicus Curiae, with further  direction to allow him to continue the petition.  Thus,  there was change of status of the counsel for deceased

petitioner.  The  said  Order  dated  16.1.2001  reads  as  under:  C.A.No.2619/02 …. (contd.)

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“This  is  a  public  interest  litigation  pertaining to the allotment of plots and shops  in the Nanded City; by the Municipal Council,  Nanded.  However,  the  petitioner  has  expired  long back.  Nobody has come forward to agitate  the  cause  of  this  petition  further.   After  having gone through the petition, this Court  would like to hear the parties to find out  whether  there  is  any  substance  in  the  petition.

Shri S.C. Bora, learned Advocate, who has  made  the  statement  that  the  petitioner  has  expired,  has  stated  that  this  Vakilpatra  ceases  to  be  effective.   However,   in  our  opinion,  it  is  necessary  to  appoint  Amicus  Curiae  so  as  to  assist  this  Court  to  understand the facts of the case and to find  out if any decision is required to be given in  the  matter.   Shri  Bora  is,  therefore,  appointed as Amicus Curiae in the matter.

Shri M.V. Deshpande, learned Advocate for  the  Municipal  Council,  states  that  he  was  under the impression that since the petitioner  has  expired,  the  matter  will  not  be  heard  today.   The  learned  Advocates  for  other  respondents also state that they require more  time for getting themselves prepared in the  matter.

S.O. to 6.2.2001.”

9. Perusal thereof does not, in fact, reflect or show  as to for what reasons and under what circumstances the

Amicus Curiae was allowed to be relegated to the position  of the petitioner, who  had admittedly died long  C.A.No.2619/02 …. (contd.)

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time back.  It is too well settled that no matter can be  allowed to be prosecuted for and on behalf of a dead  person or against a dead party but it is also no doubt  true that a Public Interest Litigation, which generally  raises an issue of general public importance, should not  be  allowed  to  be  withdrawn  or  dismissed  on  technical  grounds, if cognizance thereof has already been taken by  the Court.  But an important issue would still arise  whether in case of death of a sole petitioner in a Public  Interest Litigation, without bringing anyone else in his  place,  if  the  petition  could  still  be  allowed  to  be  prosecuted or continued? 10. The concept of Public Interest Litigation was  introduced in Indian Legal System to help a person  or a  class of persons whose legal and Constitutional Rights  are violated  and where such person or class of persons  as the case may be, owing to their disadvantaged position  such  as  poverty,  exploitation,  socially  and  economic  backwardness  and  other  forms  of  disablement  etc.  is

unable  to  approach  the  courts.  Under  the  aforesaid  circumstances,  a  person or the  society could espouse a  C.A.No.2619/02 …. (contd.)

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common grievance by filing a petition under Article 226  of the Constitution of India in the High Court or under  Article 32 of the Constitution of India in the Supreme  Court. 11. According  to  Black's  Law  Dictionary  -  “Public  Interest Litigation means a legal action initiated in a  court of law for the enforcement of public interest or  general interest in which the public  or class of the  community have pecuniary interest or some interest by  which their legal rights or liabilities are affected.” 12. It is also well settled  that laws of procedure  are  meant to regulate effectively, assist and aid the object  of  doing  substantial  and  real  justice  and  not  to  foreclose an adjudication on merits of substantial rights  of citizens under personal, property or other laws. 13. Though, the courts entertaining PIL enjoy a degree  of flexibility unknown to the trial of traditional court  litigation but the procedure to be adopted by it should  be known to the judicial tenets and adhere to established

principles of  a judicial procedure employed in every  judicial proceedings which constitute the basic  C.A.No.2619/02 …. (contd.)

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infrastructure along whose channels flows the power of  the court in the process of adjudication.  It would thus  clearly  mean  that  the  courts  have  to,  in  the  normal  course of business, follow traditional procedural law.  However, minor deviations  are permissible here and there  in order to do complete justice  between the parties. 14. Even though, we made fervent search to find out a  suitable answer to the questions posed hereinabove, from  earlier precedents of this Court but it appears to be a  unique  case.  Therefore,  in  our  wisdom,  we  thought  it  appropriate to provide answer to the said question. 15. Before proceeding to decide the said issue, it is  necessary  to  take  into  consideration  some  of  the  provisions  of  the  Code  of  Civil  Procedure,  1908  (hereinafter shall be referred to as Code for short).

 Section 141 of the Code, which creates a bar of  applicability of the provisions of the Code to petitions  filed  under  Article  226  of  the  Constitution  reads  as  under:

“141.  Miscellaneous  proceedings-  The  procedure provided in this Code in regard  to  suit  shall  be followed, as far as it  

C.A.No.2619/02 …. (contd.)

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can be made applicable, in all proceedings  in any Court of civil jurisdiction.

[Explanation – In this section,  the  expression  “proceedings”  includes  proceedings under Order IX, but does not  include any proceeding under article 226  of the Constitution.]”

Explanation which has been added in the Code  with  effect  from  1.2.1977  makes  it  clear  that  the  provisions of the Code do not specifically apply to the  proceedings  under  Article  226  of  the  Constitution  of  India.

The necessary corollary thereof shall be that  it shall be open to the Courts to apply the procedure  provided in the Code to any proceeding in any Court of  civil  jurisdiction  except  to  the  proceedings  under  Article 226 of the Constitution of India. 16. Order  XXII,  Rule  4A  of  the  Code  prescribes  the  procedure where there is no legal representative, reads  thus:  

“Order XXII Rule 4A. Procedure where there is  no legal representative–

If, in any suit, it shall appear to the Court  that  any  party  who  has  died  during  the  pendency  of  the  suit  has  no  legal  representative,  the  Court  may,  on  the  application  of   any   party  to  the  suit,  

C.A.No.2619/02 …. (contd.)

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proceed  in  the  absence  of  a  person  representing  the  estate  of  the  deceased  person,  or  may  by  order  appoint  the  Administrator-General, or an officer of the  Court or such other person as it thinks fit  to  represent  the  estate  of  the  deceased  person for the purpose of the suit; and any  judgment or order subsequently given or made  in  the  suit  shall  bind  the  estate  of  the  deceased  person  to  the  same  extent  as  he  would  have  been  bound  if  a  personal  representative  of  the  deceased  person  has  been a party to the suit. 2) Before making an order under this Rule, the  

Court – a) may  require  notice  of  the  application  for the order to be given to such (if  any)  of  the  persons  having  an  interest  in  the  estate of the deceased person as it thinks  fit; and b) shall ascertain that the person proposed  to be appointed to represent the  estate of  the  deceased  person  is  willing  to  be  so  appointed  and  has  no   interest  adverse  to  that of the deceased person.”  

17. Thus, even if it is held that Order 22 of the Code,  which relates to the subject of 'abatement of suits', is  not applicable to writ proceedings, it does not mean that

death of the petitioner can be totally ignored. Looking  to the nature of the writ proceedings, as initiated by  the deceased petitioner, the question is whether  the  right  to  pursue  the  remedy  would  have  C.A.No.2619/02 …. (contd.)

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survived  despite  the  absence  of  any  person  on  record  representing the deceased. 18. Under these circumstances, what would have been the  best option open to the court, is to be seen. In our  considered opinion, the following options could have been  exercised by the Court. 19. As soon as the information is received that a sole  petitioner  to the writ petition in the nature of a PIL  filed  pro bono publico, is dead, the Court  can issue a  notice through newspapers or electronic media inviting  public spirited bodies or persons to file applications to  take  up  the  position  of  the  petitioner.  If  such  an  application  is  filed,  the  court  can  examine  the  antecedents of the person so applying and find out if  allowing him to be impleaded as petitioner could meet the  ends of justice.

20. If the matter is already pending and the court is of  the opinion that the relief sought could be granted in  the PIL, without having to take recourse to adversarial- style of proceedings, then it can proceed further as if  it had taken suo moto cognizance of the matter. C.A.No.2619/02 …. (contd.)

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21. The  court  can  still  examine  and  explore  the  possibility, if any of the non-contesting Respondents of  the Writ Petition could be transposed as petitioner as  ultimately the relief would be granted to the said party  only.  The court in a suitable case can ask any lawyer or  any other individual or an organisation to assist the  court in place of the person who had earlier filed the  petition.  22. However, the fact situation of this case would show  that  after  the  death  of  the  original  petitioner  Anil  Tryambakarao  Kokil,  Respondent  No.1  Municipal  Council  could  have  stepped  into  the  shoes  of  the  petitioner,  albeit on a limited scale. This is because, while the  Writ Petitioner had challenged the initial allotment of  land in favour of the Appellant charitable organization  on the ground that it was made in contravention of the

purpose envisaged in the Master Plan, Respondent No.1  Nanded Municipal Council had emphasized on the subsequent  unauthorized change in user of land by the Appellant. If  we were to cast our net wider, Sitaram Maganlal Shukla,  (who was Respondent No. 12 in the Writ Petition), could  C.A.No.2619/02 …. (contd.)

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also have been transposed as a Petitioner because he too,  had a similar grievance against the Respondent Municipal  Council as that of the original deceased petitioner. It  has been brought to our notice that the said Sitaram  Maganlal Shukla also had passed away during the pendency  of the Writ Proceedings – however, in his own Second  Appeal No. 30 of 2000, he had been represented through  his Legal Representative. So, the impleadment of that  Legal Representative as the Petitioner in this PIL would  have  been  sufficient  for  continuance  of  proceedings.  Since  the  petition  before  the  High  Court  was  in  the  nature of a PIL, it is immaterial that the respective  causes  of  action  urged  by  the  Writ  Petitioner  and  Respondent No. 12 have their foundations in different  sets of legal argument, as the main relief sought is the

same, i.e. quashing of the allotment order in favour of  the Appellant. 23. At any rate, in cases like the above, where the main  Writ Petitioner has passed away and any other person (not  being a representative of the deceased) is brought on  record, either from the opposite side or from a third  C.A.No.2619/02 …. (contd.)

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party,  the  court  may,  after  having  received  an  application requesting for permission for the same, grant  opportunity to the newly added petitioners to amend the  petition, if they so desire. 24. In these circumstances, Court could have taken a suo  moto cognizance of the averments made in the petition,  despite death of original petitioner, by asigning reasons  and could have continued to bring it to a logical end, so  as to meet the ends of justice. 25. In this view of the matter, reasoning of the Court  in this regard cannot be legally upheld nor we can put a  seal of approval to such a procedure as the same would  lead to an anomalous situation not akin to law. 26. Now, coming to the merits of the matter, few facts  material  for  deciding  have  already  been  mentioned

hereinabove  but we have to decide whether the Division  Bench in the impugned judgment was justified in quashing  the allotment made in favour of the Appellant or not.  27. It  is  pertinent  to  point  out  here  that  the  aforementioned Sitaram Maganlal Shukla  had filed a civil  suit for cancellation of the lease granted in favour of  C.A.No.2619/02 …. (contd.)

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the Appellant. Ultimately,  matter was carried up to this  Court.  The  said  suit  was  dismissed.  An  SLP  (c)  No.16517/2007  against  the  judgment  and  order  dated  15.6.2007 passed in Second Appeal No. 30 of 2000 of the  High  Court  of  Bombay,  Bench  at  Aurangabad  was  filed  before this Court.  However, on 21.9.2007 the said SLP  was  dismissed  as  withdrawn.   Thus,  in  any  case,  the  question of  legality of the allotment of the subject  piece of land in favour of the Appellant, had attained  finality at the High Court stage, even though at the  instance of some other person. 28. In the aforesaid suit filed by  Sitaram Maganlal  Shukla,  who  was  the  plaintiff  therein,  the  Municipal  Council was arrayed as defendant No.2 in which it had  filed its written statement giving reasons for allotment

of piece of plot in favour of the Appellant.  It was  categorically  mentioned  in  the  same  that  Divisional  Commissioner had accorded sanction to the said transfer  of plot by its letter dated 12.11.1986.  Accordingly, the  Appellant had started the construction of its building to  be used for the hostel for girls and working women.   C.A.No.2619/02 …. (contd.)

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Similarly, all other Respondents had fully supported the  allotment of plot in favour of the Appellant.   29. In the Writ Petition No. 925 of 1988, Respondent No.  1 has submitted that the reservations of the land in  survey No. 42 and Survey No. 29 for the establishment of  a  primary  school  near  the  open  space  in  the  revised  layout was not under the master plan.  It was development  plan submitted by the owner of these two lands under  Section 44 of the Maharashtra Regional and Town Planning  Act of 1966  and those two reservations are as per the  tentative development plan formulated by the Municipal  Council  as  a  planning  authority.   This  plan  was  sanctioned before 1972.  The owner of the land was not in  a position to finance the construction of a  primary  school.  In this  background, Appellant - Trust came

forward with the offer to establish primary school as per  the  revised  development  plan  with  the  consent  of  the  owner.   30. It  is  pertinent  to  point  out   the  affidavit  of  Collector,  Nanded  in  the  Writ  Petition.   He  has  categorically averred that the said plot was reserved to  C.A.No.2619/02 …. (contd.)

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be allotted on the lease basis for 60 years and the main  object of the Appellant, Pragati Mahila Mandal, Nanded  is  to  conduct  educational  activities  for  girls.  Assistant Director of Town Planning had also issued no  objection certificate for the allotment of plot to the  above institution. He has also referred to Rule 21 of the  Maharashtra  Municipalities  (Transfer  of  Immovable  property) Rules, 1983 under which the Municipal Council  is bestowed with the powers of sanction of government  grant of the land on the basis of lease for promotion of  educational,  medical,  religious,  social  and  charitable  purposes to the registered institutions on payment of  such  concessional  premium  as  the  council  may,  in  its  discretion, determine.  

31. The  Chief  Officer  of  Nanded  Municipal  Council,  Nanded had also submitted his affidavit in reply to the  Writ  Petition  and  assigned  various  valid  and  cogent  reasons for allotment of plot to the Appellant. 32. In  the  reply  affidavit  of  Kiran  Kurundkar  dated  30.6.2001, the then Commissioner  of the Nanded - Waghela  Municipal Corporation, it  has categorically been stated  C.A.No.2619/02 …. (contd.)

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that on 3.1.1978, the first development plan of Nanded  city was sanctioned  by the Government in which the said  plot was shown and included in the Development plan for  public and semi public purposes and was not shown or  included as land reserved exclusively for primary school.  Thus, only after land user was changed, admittedly the  Appellant is using it for the said purposes ie. Public  and semi public use, which fact has not been denied by  Respondents. 33. However, as has been mentioned earlier, for want of  money and  financial crunch,  the school for which the  land was initially acquired by the Appellant could not be  started. So, it constructed a hostel for working women  and  girls  taking  higher  education.   There  is  one

auditorium also which is being used as family counselling  centre. 34.It has neither been disputed before us nor anything  

could be brought on record to show that Appellant is  running the said hostel for any gains or profit.  In  fact, it is run on no profit-no loss basis.  This is  manifest from the details of the list of students

C.A.No.2619/02 …. (contd.)

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who  have  been  pursuing  various  courses  for  higher  education  since  the  year  1991  to  the  year  2000.   It  largely discloses the names of the students, the courses  for which they had opted and the colleges of enrolment.  It also shows that initially room rent was only Rs. 150/-  which was enhanced to Rs. 400/- in the year 2000.  Most  of the inmates were students  and only handful of them  were working women.  We have been given to understand  that as of today, it is charging  only Rs. 750/- per  month from each of the students occupying the room.  The  accounts of the Appellant are duly audited and reflect  absolute transparency.  There is no reason to doubt the  correctness thereof.

35. It is  a matter of common knowledge that girls and  women face lot of problems and difficulties in finding a  suitable and  safe accommodation when they go out of  their  own  cities,   to  their  respective  schools  or  colleges or work-place.  If a hostel has been constructed  for girls and working women, then it would definitely be  for public or semi public purpose and it cannot be said  that  there  has been any deviation from the purposes for  C.A.No.2619/02 …. (contd.)

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which the said plot was earmarked and allotted to the  Appellant. It is commendable that the Appellant has taken  the  initiative  of  introducing  progressive  elements  (through the establishment of counselling centres), in  its efforts to alleviate some primary concerns of most  working women.  It would be nothing short of a cruel  twist of justice, if they are prevented from continuing  to  do  so  by  a  PIL,  which  is  motivated  by  ulterior  motives. 36. In this regard, it is further necessary to mention  that the provisions of Memorandum of Association of the  Appellant clearly state that one of the objectives of the  Appellant is to provide Hostel  facilities for girls and

working women.  This further fortifies the stand of the  Appellant  that  it  is  public  or  at  least  semi-public  purpose. 37. Thus, looking to the matter from all angles, we are  of  the  considered  opinion  that  impugned  judgment  and  order passed by the Division Bench cannot be sustained in  law.  It  deserves  to  be  set  aside  and  quashed.  We  

C.A.No.2619/02 …. (contd.)

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accordingly  do  so.   The  appeal  is  accordingly  hereby  allowed.

Parties  are  directed  to  bear  their  own  respective costs.

    ......................J.

[DALVEER BHANDARI]

      ...................... J.  [DEEPAK VERMA]

February 18, 2011

New Delhi.