Bombay High Court
Sarda Education Society, ... vs The Divisional Commissioner, ... on 11 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6959 OF 2015
PETITIONER : Sarda Education Society,
Anjangoan Surji, through its Secretary
Dr. A. R. Sarda, R/o Anjangaon Surji,
Tq. Anjangaon Surji, Dist. Amravati.
- VERSUS -
RESPONDENTS : 1] The Divisional Commissioner,
ig Amravati Division, Amravati.
2] The Collector, District Amravati.
3] The Chief Executive Officer,
Municipal Council, Anjangaon Surji,
Tq. Anjangaon Surji, Dist. Amravati.
4] Shri Kisanlal Mohanlal Agrawal,
Aged major, Occu. Nil,
Anjangaon Surji, Tq. Anjangaon Surji,
Dist. Amravati.
(Interveners) 5] Shri Rajeshwar Developers, Akola,
through its Partners -
a] Swapnil S/o Anil Chandak,
Aged about 27 years, Occu. Agriculturist
and business, R/o Balaji Nagar, Akola,
Tah. & Dist. Akola
b] Sunil Sudhakarrao Kharote,
aged about 44 years,Occu. Agriculturist
and business, R/o Shastri Nagar, Akola,
Tah. & Dist. Akola
c] Makrand Sharad Pande
aged about 43 years,Occu. Agriculturist
and business, R/o Rautwadi, Akola,
Tah. & Dist. Akola
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d] Sandesh Dilip Chandak
aged about 27 years, Occu. Agriculturist
and business, R/o Mahajani Plot, Akola,
Tah. & Dist. Akola
-------------------------------------------------------------
Mr. H. S. Chitaley, Advocate for the petitioner.
Ms. Tajwar Khan, Asst.Govt. Pleader for respondent nos.1 and 2
Mr. F. T. Mirza, Advocate for the respondent no.3
Mr. C. S. Kaptan, Senior Advocate with Mr. H.R. Gadhia, Advocate for
the respondent no.4 and 5(a) to (d)
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 11, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is
taken up for final disposal at the stage of admission with the consent of
the learned counsel for the parties.
2] By the present petition, the petitioner challenges the order
passed by the respondent no.1 - Divisional Commissioner, Amravati, dated
29.07.2015 in revision and the order passed by the respondent no.2 -
Collector, Amravati, dated 07.09.2013 in appeal, filed by the petitioner.
3] The petitioner is an education society, running senior and junior
colleges at Anjangaon Surji. The land admeasuring 1.23 Hectare out of
survey No. 18/1 and land admeasuring 23 R out of survey No.1/2, situated at
village Khelhagone were belonging to the respondent no.4. A revised
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development plan for Anjangaon Surji was published on 18.12.1992 and the
same came in force on 01.03.1993. In the said revised Development Plan, the
aforesaid land was shown reserved for playground of the college of the
petitioner-society and then it was converted and shown as reservation for
college of the Sarda Education Trust. It is the case of the petitioner-society
that the respondent no.4 never raised any objection for reservation of the said
land and the respondent no.3 - Chief Executive Officer, Municipal Council,
Anjangaon Surji, directed the petitioner by communication, dated 16.12.1999
to take action for acquisition of the land. The petitioner then made attempts
for acquisition of the land by requesting the authorities. It is submitted that
the Sub Divisional Officer, Daryapur the Taluka Inspector of Land Records
(TILR), Anjangaon Surji to conduct joint measurement of the land, to which
the respondent no.4 raised an objection. As such, the joint measurement of
the land could not be effected. The petitioner then approached this Court by
filing Writ Petition No. 5233/2010, seeking direction against the respondent
no.2 - Collector, Amravati to acquire the land. A reply was filed to the
petition on behalf of the respondent-State authorities and it was submitted
that the land acquisition proceedings would commence immediately. In view
of the statement made on behalf of the State authorities, the Division Bench of
this Court, by order dated 24.02.2011, disposed of the petition.
4] The respondent no.4 herein had filed a Writ Petition No.
5082/2011 seeking de-reservation of the land in question. This Court, by
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order dated 02.02.2011, on the backdrop of the fact that the entry cannot be
deleted unless appropriate procedure contemplated under Section 37 of the
Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to
as "the Act of 1966" for the sake of brevity) is followed, was not inclined to
show any indulgence and the petition was dismissed. Thereafter, the
respondent no.4 herein had filed a Misc. Civil Application No. 523/2011
seeking review of the order dated 02.02.2011. This Court in view of the
policy decision of the Government dated 23.08.2012, granted liberty to the
applicant/ respondent no.4 herein to move the appropriate representation to
the State Government/Planning Authority and further directed the authority
to decide the representation, if so made, within stipulated period and
accordingly disposed of the application.
5] The Municipal Council, Anjangaon Surji, (hereinafter referred to
as "the Council" for the sake of brevity), on receiving a communication from
the State Government, dated 10.10.2012, scheduled a special meeting on
12.11.2012. On the agenda of the meeting, there were four subjects,
including the communication dated 10.10.2012 as subject No.39. The
Council, in view of the communication of the State Government as well as in
view of the orders passed by this Court in Misc. Civil Application No.
523/2011 and Writ Petition No. 5082/2010 and in view of the factual
position that the petitioner-society is possessing vacant premises, resolved for
initiating the process for dereservation under Section 37 of the Act of 1966.
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The petitioner by filing an application/appeal before the respondent no.2 -
Collector, Amravati, sought a challenge to the resolution passed by the
Council and the respondent no.2, finding no favour with the petitioner,
rejected the application/appeal, by order dated 07.09.2013. Being aggrieved
by the said order, the petitioner approached the Regional Director of
Municipal Administration/Additional Commissioner, Amravati. The said
authority, by observing that though, as per the Development Plan, the land
was reserved for educational purposes in the year 1993, the Council and the
Educational Institute were unable to acquire the land within 30 years and as
the land owner gave a purchase notice and as there were certain orders
passed by this Court, ultimately the Council passed the resolution dated
12.11.2012 as per the provisions of the Act of 1966. As the respondent no.2,
before whom the resolution was challenged, found no fault, the Additional
Commissioner passed the order dated 29.07.2015 rejecting the revision
petition and confirming the order passed by the respondent no.2 - Collector,
dated 07.09.2013.
6] Mr. Chitaley, the learned counsel for the petitioner in challenge
to the orders passed by the respondent no.2 - Collector as well as the
Additional Commissioner, made two fold submissions. The first submission of
the learned counsel was as the land in question was reserved in the
Development Plan for the educational purposes and as the Council failed to
take steps to acquire the said land and ultimately, the petitioner, who
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approached this Court seeking directions was a contesting party, to whom an
opportunity of hearing was to be granted by the Council before passing the
resolution dated 12.11.2012. The second submission of the learned counsel
was the authorities namely the Collector and the Commissioner, have
erroneously treated that it was private reservation in favour of the petitioner-
society and wrong reliance was placed on the communication issued by the
State Government, dated 10.10.2012. The learned counsel for the petitioner,
in support of his submissions placed reliance on the judgment of the Hon'ble
Supreme Court reported in AIR 1996 Supreme Court 2803 in the case of
Ganapati National Middle School .vs. M. Durai Kannan (dead) thru Lrs
and others. The learned counsel further submitted that the authorities
namely the State Government and the Council, who were parties to the Writ
Petition No. 5233/2010, which was filed by the petitioner-society, have
admitted that the land in question was reserved for the petitioner-society for
the object of public purposes. The learned counsel submitted that the
Council, in its reply in Writ Petition No. 5233/2010, submitted that the State
Government, by a communication dated 10.12.1992 had reserved the land in
question for the petitioner-society and the Council being the local governing
body, was bound by the directions issued by the State Government. The
learned counsel submitted that the respondent-State authorities as well as the
Council now cannot take a stand that there can be no reservation for the
private institutes. The learned counsel for the petitioner further submitted
that in view of Section 22 of the Act of 1966, a provision can be made for
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reservation of a particular site or land in the Development Plan for the public
purposes and it includes the reservation of the land for school, college or
educational institute. The learned counsel further submitted that though, the
Act of 1966 makes the provision under Section 37 for modification in the
Development Plan, the petitioner, who is the contesting party, ought to have
heard before passing the resolution by the Council for initiating the
proceedings under Section 37 of the Act of 1966 as the proposed modification
of the Development Plan affects and causes prejudice to the petitioner. The
learned counsel for the petitioner further submitted that the petitioner was
even ready to pay the compensation in case the Council initiates the
proceedings for acquisition of the land in question.
7] The learned Assistant Government Pleader for the respondent
nos.1 and 2 as well as Mr. Kaptan, the learned Senior counsel appearing for
the applicants/interveners opposed the petition. The learned senior counsel
submitted that the petition proceeds on wholly erroneous conception. He
submitted that the respondent no.4 - Kisanlal Agrawal was the owner of the
land in question and the respondents/interveners are the successors of the
respondent no.4. He submits that the respondent no.4 had approached the
Deputy Superintendent of Land Records, Amravati in challenge to the
proceedings initiated for joint measurement and acquisition of the land in
question. The learned senior Advocate further submitted that the Council, for
the reasons viz. the communication of the State Government, dated
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10.10.2012 and the orders passed by this Court as well as on the backdrop of
the fact that it is the Planning Authority, who would be competent to take the
decision for de-reservation of the land, passed the resolution for initiating the
process and proceeding under Section 37 of the Act of 1066. The learned
senior advocate further vehemently submitted that there is no requirement of
hearing a party while passing resolution by the Council for initiating the
proceedings under Section 37 of the Act of 1966. He further submitted that
the Council has initiated the proceeidngs under Section 37 of the Act of 1966
and the notices were accordingly issued. The learned senior counsel
submitted that the petitioner had raised an objection to the proceedings under
Section 37 of the Act of 1966. The learned senior counsel further submitted
that the application/appeal filed before the respondent no.2 - Collector under
Section 308 of Maharashtra Municipal Councils, Nagar Panchayat and
Industrial Township Act, 1965, challenging the resolution, itself was not
tenable and the respondent no.2 - Collector rightly rejected the said
application/appeal and the respondent no.1 - Commissioner confirmed the
order passed by the respondent no.2 - Collector by exercising the revisional
powers under Section 318 of the Act of 1986. It is the submission of the
learned senior counsel that Section 308 provides a limited and defined
grounds to challenge the resolution passed by the Council. It is further
submitted that the petitioner had not approached the respondent no.2 -
Collector raising any such ground as contemplated under Section 308 of the
Act of 1965, but raising a ground of not giving an opportunity of hearing
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before passing the resolution, which is beyond the scope and limits of the
provisions of Section 308. The learned senior counsel placed reliance on the
Full Bench judgment of this Court, reported in 2004 (2) Mh.L.J. 874 in the
case of Sanjay Govind Sapkal and others .vs. Collector of Dhule and others.
The learned senior counsel further submitted that though, there canot be any
dispute on the proposition that the land can be reserved for the public
purposes and such reservation can be made in favour of the educational
institutes, but such allotment of land must be founded on sound, transparent
and well defined policy of the State. By these submissions, the learned senior
counsel placed reliance on the judgment of the Hon'ble Supreme Court
reported in (2011) 5 Supreme Court Cases 29 in the case Akhil Bhartiya
Upbhokta Congress .vs. State of Madhya Pradesh and others.
8] On hearing the learned counsel for the parties, more particularly
the learned counsel for the petitioner and the learned senior counsel for the
respondents/interveners, I am of the opinion that the petition is meritless.
The basis on which the petitioner had approached this Court challenging the
orders passed by the respondent no.2 - Collector and the respondent no.1 -
Commissioner, is non-grant of opportunity of hearing to the petitioner before
passing the resolution dated 12.11.2012 by the Council. On a perusal of the
material placed on record, it is not in dispute that the part of the land from
survey Nos. 18/1, 19 and survey no.95 was marked as reserved land for
petitioner-society. The draft Development Plan, a copy of which is placed on
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record, shows that the said reservation was under caption M-12 and the
petitioner - Sarda Education Trust, Anjangaon Surji was shown as the
appropriate authority. Perusal of the orders passed by this Court show that
when the petitioner had approached this Court by filing Writ Petition No.
5233 of 2010, seeking direction for acquisition of the land, on the statement
made on behalf of the Land Acquisition Officer that the said Authority is
intending to initiate the land acquisition proceedings under the provisions of
law, this Court by order dated 24.02.2011 disposed of the petition accepting
the said statement. On an application moved by the respondent no.4 herein
seeking review of the order dated 02.02.2011 passed in Writ Petition No.
5082/2011 wherein release of the land was sought for from the reservation, it
was observed by this Court that entry cannot be deleted unless appropriate
proceedings under Section 37 of the Act of 1966 is followed and declined to
show indulgence in the petition. This Court disposed of the review
application by granting liberty to the review applicant to submit revision
before the State Government. Perusal of the material placed on record
further shows that a notification was issued by the Town Planning
Department, a copy of which is placed on record at Annexure-XVIII. The said
notification deals with the aspect where certain reservations of land are to be
made for public purposes and private institutes were referred to as an
appropriate authority. The resolution further states that as per Section 2(3)
of the Act of 1966, the "Appropriate Authority" must be a public authority and
the reservation has to be for the appropriate authority being a public authority
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and as such, the reservation cannot be extended to private institute as an
appropriate authority. By the communication dated 10.10.2012, the Deputy
Secretary of the State Government, communicated the Director of Town
Planning and the other officers of the Town Planning Department at Amravati
as well as to the Chief Executive Officer of Municipal Council, Ajangaon Surji
to submit their proposal on the backdrop of the representation of the
respondent no.4 and the order passed by this Court in Writ Petition No.
5082/2010 and Misc. Civil Application No. 523/2011. Accordingly, the
Council, by convening a special meeting on 12.11.2012, passed the resolution
to initiate proceedings under Section 37 of the Act of 1966. Perusal of the
provision of Section 37 of the Act of 1966 reveals that a notice of the
proposed modification of the final development plan be published in the
official gazette by inviting the objections and suggestions from the persons
within a stipulated period and after hearing the objections and suggestions
received, the State Government within a stipulated period shall effect the
modification. Thus, the requirement of hearing is provided after issuance of
the notices and there is no provision under the Act for grant of opportunity of
hearing at the stage of the resolution being passed by the Council for issuance
of proceedings under Section 37 of the Act of 1966. Thus, the submission of
the learned counsel for the petitioner on this ground cannot be accepted and
the challenge raised on this ground ultimately fails.
9] The another aspect of the challenge to the orders passed by the
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respondent no.2 - Collector and the respondent no.1 - Commissioner also
hold no water. The petitioner had approached the respondent no.2 -
Collector under Section 308 of the Act of 1965, seeking challenge to the
resolution. There is merit in the submission of the learned senior counsel for
the respondents/interveners that the challenge to the resolution under Section
308 can be raised only on limited grounds. Perusal of the provisions of
Section 308 shows that it refers to the grounds for challenge viz. "causing or is
likely to cause injury or annoyance to the public or is against public interest or to
lead to breach of the peace or is unlawful". The application submitted by the
petitioner to the respondent no.2 - Collector nowhere raises any of such
grounds referred to above. The ground raised in the application is of
obstruction created at the instance of the respondent no.4 and protracting the
proceedings of acquisition. The ground raised by the petitioner certainly
cannot be ground which is referred to in Section 308 of the Act of 1965. The
senior counsel was justified in placing reliance on the judgment of this Court
in the case of Sanjay Sapkal .vs. Collector of Dhule (supra). This Court in the
said case, held that the Collector has power, authority and instructions to
invoke sub-section 1 of Section 308 of the Act of 1965, if he is satisfied that
one of the eventualities mentioned in the said sub-section exists. While
dealing with the earlier judgments, the Full Bench of this Court has, at
paragraph 26, observed that -
"26. With respect to the Division Benches, in our considered
opinion, the law laid down and observations made by the court
in those decisions do not lay down correct law. To us, it is clear
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that if, in the opinion of the Collector, the execution of any order
or resolution of a Council causes or is likely to cause injury or
annoyance to the public, or is against public interest, or leads
toa breach of peace, or is unlawful, he may suspend the
execution or prohibit the doing thereof. If any of the conditions
laid down in sub-section (1) of section 308 of the Act is satisfied
or is present, the Collector has jurisdiction to exercise power
under sub-section (1). The sine qua non for exercise of power by
the Collector is that he must be satisfied that execution of
anyorder or resolution or doing of anything which is or about to
be done or being done on behalf of the council (i) is causing or is
likely to cause injury or annoyance to the public, or (ii) is
against public interest, or (iii) is likely to lead to a breach of
peace, or (iv) is otherwise unlawful." (emphasis supplied)
10] It is also not in dispute that the Council now has initiated the
proceedings under Section 37 of the Act of 1966, thereby issuing public notice
and the petitioner has filed an objection. Considering all these aspects, in my
opinion, the order passed by the respondent no.2 - Collector, Amravati and
confirmed by the respondent no.1 - Commissioner, challenged in the present
petition need no interference at the hands of this Court. The writ petition
thus being meritless deserves to be dismissed and the same is accordingly
dismissed.
Rule is discharged. No costs.
JUDGE
Diwale
