By Adv. R. S. Agrawal 

 

IN THE judgement of the case – Ravindra Dattaram Waikar, Maharashtra MLA belonging to the Shiv Sena (UBT) from Jogeshwari, Mumbai, against State Government and others, delivered on October 13, 2023, Justice Sunil B. Shukre and Justice Rajesh S. Patil at the Principal Seat of the Bombay High Court, have declined to examine the larger issue relating to manner of allocation of State funds to the State Legislators raised by the Opposition Maharashtra Vikas Aghadi (MVA) MLA, considering absence of sufficient material enabling it to do so, keeping in view the principle of fairness and transparency in such matters. However, the High Court has kept the issue open. The petitioner’s grievance is about the discriminatory attitude adopted by the State of Maharashtra in allocation of Government funds to different constituencies for development of infrastructure and basic civic amenities in the slums situated in those constituencies. There is a fund called Maharashtra Local Development Fund (MLDF) to ensure development of infrastructural facilities in local areas. The respondents allocated Rs. 11,420.44 lakh under slum –dwellers Re-allocation and Rehabilitation Plan 2022-23 in various constituencies of MLAs and MLCs. A further sum of Rs 26,687.2 lakh was allocated under the head of “Development of Slums in Other than Backward Class”. There is allegation in the petition that the funds allocated under the head of Development of Slums for developmental works in the slums situated in constituencies represented by Bhartiya Janta Party (BJP) is much more than the funds allocated for developmental works in the constituencies represented by the petitioner’s party. According to the petitioner that there are number of slums in his constituencies which are in need of civic amenities but he and other members of the Opposition party have been denied these funds and thus there is arbitrariness and discrimination, not based on any intelligible diiferentia.

 

Therefore, the petitioner was seeking a direction to the State Government for allocation of funds in equal proportion for carrying out Slum-dwellers Re-allocation and Rehabilitation Plan 2022-23 and for providing basic infrastructure facilities with a view to develop slums in other than backward class areas. The grievance of the petitioner is about his constituency being singled out for allocating sparse funds as against constituencies of ruling alliance which have received larger funds, which according to him is arbitrary and an instance of impermissible discrimination on the part of the State Government. In the case of Indian Oil Corporation Ltd. & others v. Shashi Prabha Shukla & Another-(2018) 12 SCC 85, it is held that a public authority in its dealings has to be fair, objective, non-arbitrary, transparent and non-discriminatory and while distributing funds or a largesse, the Government must discharge its obligation in the larger interest of beneficiaries for whom the distribution of largesse has to be made. It has been further held that whenever discretion is vested in the State, it comes with a duty to exercise the discretion in a reasonable and non-discriminatory manner and if it is not so, the Court would have the power to interfere and issue necessary directions for correcting the wrong that has resulted from such arbitrariness.

 

There can be no dispute about this principle of law and therefore, the decision taken by the Government regarding allocation of funds for various public works in different constituencies of suburban areas of Mumbai would have to be tested on the anvil of this principle. When the HC examined the documents, which in the opinion of petitioner’s counsel exemplify arbitrariness and discrimination made by the State Government without there being any intelligible diiferentia, its finding is that in reality, these documents do not exemplify the allegations made. The document at Exh. C on its superficial examination would of course create an impression that the Government has allocated more funds to the constituencies represented by BJP MLAs/MLCs, but on a deeper consideration of the matter in its entirety , one would find that it is not so. The Court’s finding is that there are instances, as seen from other documents at Exh. C-3, where substantial funds have been allocated for carrying out different works in constituencies belonging to parties other than BJP. For example in Constituency No.30, represented by a Congress MLC funds of Rs 1025 lakh have been sanctioned for carrying out 34 works. This document further shows that different number of works have been sanctioned in the constituencies mentioned therein and it appears that it is because of this that the difference has appeared in sanctioning of funds for carrying out various works. The trend generally shown by this document is of more the number of works to be carried out, higher is the allocation of funds. It is also seen that for equal number of works, generally equal amount of funds have been allotted.

 

There are also instances where the number of works sanctioned in the two different constituencies is same, but allocation of funds is different. But the different here is only minor in nature. Broadly speaking, the allocation of funds made by the State Government appears to be having a reasonable co-relation with the number of works sanctioned and the document Exh. C does not show that even though the number of works sanctioned were less, the allocation of funds was more. Similar is the picture emerging from documents at Exh B-1 and C-1. Therefore, from these documents, the Court did not see any arbitrariness or any instance of impermissible discrimination on the part of the State Government in allocation of the funds. The HC has expressed the view that if the exercise of according sanction to different works to be carried out in different constituencies is to be examined for its transparency and fairness, detailed material on the basis of which comparison between two different areas can be made, is required to be placed before the Court. That material has not been made available to the Court or has been placed before it by the petitioner. The HC has observed that as according sanction to works and allocation of funds for execution of those works relate to administrative function guided by the State policy, the judicial review of such an administrative function can only be made by applying the doctrine of Wednesbury unreasonableness and it cannot be fruitfully applied in a case like this unless sufficient material is placed before this Court to enable it to test the reasonableness and fairness of the decision of the Government through the process of comparative analysis. But that is not present here. Hence petitioner’s arguments of arbitrariness and discrimination by the Government have no merits. The HC has observed that the petition has no substance and dismissed it.