Bombay High Court
Mehboobiya Education Society, ... vs State Of Maharashtra, Department ... on 23 June, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3911 OF 2014
Petitioner : Mehboobiya Education Society, Buldana,
No.F-7184, through its President -
Shri Sk. Yakoob Sk. Mehboob,
Aged about 52 years, Occ : Business,
R/o Sonar Galli, Ward No.6, Buldana,
ig District Buldana.
-- Versus --
Respondents : 1] State of Maharashtra,
Department of Town Planning,
through its Secretary, Mantralaya, Fort,
Mumbai : 440 032.
2] District Collector, Buldana.
3] Chief Officer, Nagar Parishad, Buldana,
District Buldana.
4] Municipal Council, Buldana,
District Buldana, through its President.
5] Quazi Raisoddin Alimoddin,
Aged about : Major, Occ : Service,
R/o Principal, Nagar Parishad, Urdu School No.2,
Mirza Nagar, Buldana.
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Shri P.B.Patil, Advocate for the Petitioner.
Shri H.R. Dhumale, A.G.P. for Respondent No.1 and 2.
Shri Abhay Sambre, Advocate for Respondent Nos.3 and 4.
Shri Tushar Darda, Advocate for Respondent No.5.
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C ORAM : Z.A. HAQ, J.
DATE : 23
JUNE, 2016.
rd
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ORAL JUDGMENT :-
01] Heard Shri P.B. Patil, learned Advocate for the petitioner, Shri
Abhay Sambre, learned Advocate for respondent Nos.3 and 4, Shri Tushar
Darda, learned Advocate for respondent No.5 and Shri H.R. Dhumale,
learned Assistant Government Pleader for respondent Nos.1 and 2.
02]
The petitioner is administering a primary school in a rented
premises. The petitioner-society applied for grant of lease in respect of
land out of Survey No.74 and the Municipal Council by Resolution No.15
passed on 08/11/2012 and Resolution No.9 passed on 22/03/2013
decided to allot 1748 sq. mtrs. of land out of Survey No.74 to the
petitioner-society on lease for three years. These resolutions came to be
challenged before the Collector, Buldana and the learned Collector
exercising powers under Section 308 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965
(hereinafter referred to as 'the Act of 1965') suspended the operation of
above referred resolutions passed by the Municipal Council. The petitioner
being aggrieved by the order passed by the Collector, has filed this petition.
03] The respondent No.5 had raised an objection at the time of
hearing on admission of the petition, to the tenability of the petition on the
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ground that the petitioner has alternate statutory remedy available under
Section 318 of the Act of 1965. While issuing rule on 11/02/2015, this
Court ordered that the objection raised on behalf of the respondent No.5
shall be considered at the time of hearing.
04] Shri P.B. Patil, learned Advocate for the petitioner has
submitted that the authority considering revision under Section 318 of the
Act of 1965 can examine the legality or propriety of any order or the
regularity of the proceedings, of any Council or of any officer subordinate
to such Council or the State Government, and for this purpose the
Revisional Authority can grant opportunity to the Municipal Council to put
forth its case and any private party is not entitled to seek audience. To
support his submission, reliance is placed on the judgment given by the Full
Bench of this Court in the case of Sanjay Govind Sapkal and others vs.
Collector of Dhule and others reported in 2004(2) Mh.L.J. 874. It is
argued that in view of the above, it cannot be said that the remedy under
Section 318 of the Act of 1965 is available to the petitioner (private party).
05] On merits of the matter, it is submitted that the learned
Collector had no authority to suspend the resolutions passed by the
Municipal Council, exercising powers under Section 308 of the Act of 1965,
as none of the situations contemplated by Section 308 of the Act of 1965
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existed. The learned Advocate has argued that the Collector has suspended
the resolutions passed by the Municipal Council observing that the children
studying in the school administered by the Municipal Council and the
children studying in the school administered by the petitioner will play in
the same ground and that may create law and order problem, which
observations are not proper and there is no basis for the observations. It is
submitted that the land in question is reserved for education purpose and
after considering all the relevant aspects, the Municipal Council passed the
resolutions regarding grant of lease of land in question in favour of the
petitioner-society and it could not have been suspended by the Collector
exercising powers under Section 308 of the Act of 1965. It is prayed that
the petition be allowed, the impugned order be set aside and the
resolutions passed by the Municipal Council be restored.
06] The petition is opposed by the respondents. The respondent
Nos.3 and 4 have filed reply supported by affidavit sworn by the Chief
Officer. In paragraph No.6 of the reply, it is stated that the Municipal
Council is in need of the land in question and it is not interested in
continuing the lease. It is not understood as to on what basis the Chief
Officer has made such statement on oath. The respondent Nos.3 and 4
have not placed any resolution of the Council to show that the Council has
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decided that the lease of land in question will not be continued further. It
appears that the Chief Officer has exceeded his authority and there is an
attempt to mislead the Court.
07] Be that as it may, sub-section 3 of Section 308 of the Act of
1965 lays down that when the Collector makes an order under sub-section
1 of Section 308 of the Act of 1965, he shall forward copy of the order to
the Municipal Council and submit a report to the Director along with copy
of such order. Sub-section 3 of Section 308 of the Act of 1965 lays down
that the Municipal Council, if it so desires, forward a statement to the
Director within thirty days indicating therein why the order of Collector
should be rescinded, revised or modified. It lays down that if the Director
does not receive such statement within time, he shall presume that the
Municipal Council has no objection if the order of the Collector is
confirmed.
Sub-section 4 of Section 308 of the Act of 1965 lays down that
the Director shall rescind, revise, modify or confirm the order passed by the
Collector and for this, six months' time is given to the Director. The
Director can also direct that the order passed by the Collector shall
continue to be in force with or without modifications. The steps as
contemplated by sub-sections 3 and 4 of Section 308 of the Act of 1965 are
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not taken because of the interim order passed by this Court.
08] Shri P.B. Patil, learned Advocate for the petitioner has
submitted that looking to the attempt of the respondents, the petitioner
apprehends that the Municipal Council will not forward its statement to the
Director indicating that the order of the Collector should be rescinded,
revised or modified and the consequence will be that the Director will
presume that the Municipal Council has no objection if the order passed by
the Collector is confirmed. The learned Advocate has submitted that in
view of the judgment given by the Full Bench of this Court in the case of
Sanjay Govind Sapkal, the petitioner has no right of audience before the
Director and in this situation, it would be fait accompli as far as the
petitioner is concerned. The submission made on behalf of the petitioner is
appealing, however, the petitioner will have the right to challenge the
order passed by the Director, if occasion arises. Until the Director considers
the matter, the order passed by the Collector is only an interim order and it
will not be appropriate for this Court to examine the challenges aborting
the steps as contemplated by sub-sections 3 and 4 of Section 308 of the Act
of 1965. Moreover, it cannot be said that if the Municipal Council does not
forward its statement to the Director as required by sub-section 3 of Section
308 of the Act of 1965, the Director will confirm the order passed by the
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Collector. It has to be believed that the Director will apply his mind
independently and consider the legality and propriety of the order passed
by the Collector as also the legality and propriety of the resolutions passed
by the Municipal Council.
09] The further steps as required by sub-sections 3 and 4 of
Section 308 of the Act of 1965 could not be taken because of the interim
order passed by this Court and, therefore, the period of 30 days provided
under sub-section 3 and the period of six months provided under sub-
section 4 will have to be granted to the Municipal Council and the Director,
from today.
10] In my view, in the facts of the case, the following oder will
sub-serve the the ends of justice.
i. The Collector shall send the report along with the copy of the
order passed by him on 25/06/2014 to the Director.
ii. The Municipal Council shall submit its statement to the
Director within 30 days from today, if it so desires.
iii. The Director shall take decision as contemplated by sub-
section 4 of Section 308 of the Act of 1965 within six months
from the receipt of report from the Collector.
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iv. The Municipal Council shall not take any decision regarding
allotment of land in question, to any other party except the
petitioner, till the decision of Director is communicated to the
petitioner.
v. The petition is disposed. In the circumstances, the parties to
bear their own costs.
vi. Rule is made absolute in the above terms.
Civil Application [CAW] No.760/2016 :
In view of disposal of the writ petition, Civil Application
[CAW] No.760/2016 has become infructuous. The same is disposed.
JUDGE
*sdw
