Prabhodhan Sanstha, Mul Through ... vs The Commissioner, Nagpur ...
2017 Latest Caselaw 6890 Bom

        wp6809.16.J.odt                                                                                               1/9    


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH, NAGPUR


                                  WRIT PETITION NO. 6809 OF 2016


             Prabhodhan Sanstha, a Public Trust,
             Having Registration No. NF 4178/93
             Siddham Shettiwar Layout,
             Tadala Road, Mul, District : Chandrapur,
             Through its President,
             Vijay Prabhakar Siddhawar,                               .....PETITIONER

                          ...V E R S U S...

        1]   The Commissioner,
               Nagpur Division, Nagpur.

        2]   The Collector, Chandrapur.

        3]   Municipal Council,
               Through its Chief Officer, Mul,
               Tahsil Mul, District : Chandrapur.

        4]   Arvind S/o Divakar Bokare,
              Aged about 67 years, Occ.: Business,
              R/o Sidhham Shettiwar Layout
                    Tah-Mul,   District-Chandrapur.                                       ......
        RESPONDENTS.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Anil S Kilor, Advocate for the Petitioner.
        Shri V. P. Maldhure, AGP for Respondent Nos.1 and 2.
        Shri Ganesh N. Khanzode for Intervenor.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S. C. GUPTE, J.

th DATE : 7 SEPTEMBER, 2017.

ORAL JUDGMENT :

Heard learned counsel for the parties and learned

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Assistant Government Pleader for the State.

02] Rule. Rule made returnable forthwith and taken up for

hearing with consent of counsel.

03] The subject matter of challenge in the present writ

petition is an order passed by the Collector of Chandrapur under

Section 308 of the Maharashtra Municipal Councils, Nagar

Panchayats and Industrial Townships Act, 1965 ("Act"), ordering

suspension of a resolution passed by 3 rd respondent - Municipal

Council, Mul and confirmation of that order in revision by the

Divisional Commissioner.

04] The petitioner is a public charitable trust registered

under the provisions of the Maharashtra Public Trusts Act, 1950

and the Societies Registration Act, 1960. The petitioner was

registered with the aim and object of holding cultural and social

activities for overall development of youth. On the application of

the petitioner, 3rd respondent - Municipal Council, by a resolution

of its standing committee passed on 22nd June, 1998, allotted land

bearing Survey No.812 in Siddham Shettiwar Layout, Ward No.10,

within the area of the Municipal Council to it for construction of

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"Yuva Bhavan". It is not in dispute that in pursuance of this

resolution, the petitioner has been in possession of the subject land

and has even constructed a structure on this land. Nearly 15 years

after allotment of the land, the resolution of 3 rd respondent was

challenged by way of public interest litigation (PIL No.19 of 2013)

by respondent No.4 herein. By its order dated 7 th August, 2013, a

Division Bench of this Court disposed of the PIL inter alia by

recording the statement of 3rd respondent that a report, in this

behalf, was forwarded to the Collector of Chandrapur for action

under Section 308 of the Act and that though there was no action

on that report, the request was reiterated to the Collector and

appropriate steps would, accordingly, be taken to redress the

grievance of the petitioner (respondent No.4 herein) in accordance

with law. In the premises, the Division Bench was of the view that

the grievance of the PIL petitioner was being sufficiently redressed.

The writ petition was, accordingly, disposed of with liberty to

respondent No.4 herein to approach the Court again if his

grievance was not ultimately redressed. It appears that there were

no steps taken in pursuance of the statement recorded by the

Division Bench as above and another writ petition was thereupon

moved by respondent No.4 herein, being Writ Petition No.1841 of

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2014. This Court, by order dated 1st October, 2014, disposed of that

writ petition by accepting the statement made on behalf of the

Collector of Chandrapur that he would take a final decision in the

matter within a period of 12 weeks. The Collector has, in keeping

with that statement, taken a final decision under Section 308 of the

Act on 18th November, 2015. That order is challenged in the

present petition. The order of the Collector was confirmed in

revision by the Divisional Commissioner on 21st November, 2016.

That order also forms part of the challenge herein.

05] Learned counsel for the petitioner submits that having

regard to the provisions of the Act, and, in particular, Sub Section

(15) of Section 81 of that Act, if the Municipal Council had to

modify or cancel its resolution, it had to resort to Sub Section (15)

of Section 81 and could not have approached the Collector under

Section 308 of the Act. I am afraid there is no merit in this

contention. These two powers, that is to say, the power of the

Municipal Corporation under Sub Section (15) of Section 81, and

the power of the Collector under Section 308, are separate powers

and stand on separate footings. The fact that the Municipal Council

is empowered to modify or cancel its resolution under Sub Section

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(15) of Section 81, does not imply that on its application, the

Collector cannot exercise his power under Section 308. After all,

the powers of the Collector under Section 308 are not necessarily

to be exercised on the application of any particular party. The

Collector is even free to act suo-motu on information received by

him. If that is so, it scarcely matters from whom the information

comes. It may well come from the Municipal Council itself.

06] Considering, however, the merits of the impugned

orders of the Collector and the Divisional Commissioner, it is at

once clear that the orders do not record the satisfaction of the

authorities on any of the conditions of Section 308 of the Act.

Powers under Section 308 are to be exercised by the Collector on

satisfaction that the execution of any order or resolution of a

council is causing, or likely to cause, injury or annoyance to the

public or is against public interest or is likely to lead to breach of

peace or is otherwise unlawful. It is a pre-requisite of any order to

be passed under Section 308 for the Collector to record his

satisfaction on either of these conditions. Our Court, in a Full

Bench decision in the case of Sanjay Govind Sapkar and

Others ..vs.. Collector of Dhule and Others, reported in 2004(2)

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Mh. L. J. 874, has held that the "sine qua non for exercise of

power by the Collector is that he must be satisfied that execution of

any order 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." If one has regard to the impugned order of

the Collector in the present case, the impugned order simply refers

to (i) the assurance given to this Court in the PIL by the Collector

and (ii) Section 308 of the Act and suspends the resolution under

Section 308 by noting that the order is being passed after

considering the record of the case and arguments of rival parties.

That I am afraid is not permissible. The Collector had to record, as

noted above, his satisfaction on either of the conditions on which

alone powers under Section 308 can be exercised and this he had

to do by indicating, even if briefly, his reasons for such satisfaction.

07] The impugned order of the Divisional Commissioner

does not take the matter any further. In the impugned order, the

only discussion on the legitimacy of the exercise under Section 308,

is in the following words :

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"Another submission of the appellant is that the Collector ought not to have exercised the power u/s 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965. This submission of the appellant cannot be said to be proper as the learned Collector after considering the fact that public utility land reserved for "Open Space" has been illegally granted to the applicant and on the same land illegal construction has been made by the appellant without obtaining permission of the concerned authority and is running the educational institution. Therefore, after considering the vital public interest, the learned Collector has rightly suspended the resolution dated 22.06.1998 which is well within his discretionary powers."

08] The Collector, in the first place, had not brought out the

aspect of public interest in his impugned order, which was in

revision before the Divisional Commissioner. The Divisional

Commissioner, in the premises, could not have upheld that order

simply by stating that "after considering the vital public interest,

the learned Collector has rightly suspended the resolution dated

22.06.1998 which is well within his discretionary powers." If at all,

he had to come to an independent finding that either of the

conditions of Section 308 was satisfied.

09] In the premises, the impugned orders of the authorities

below cannot be sustained.

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        10]                This Court would, however, like to make it clear that the

orders are being set aside not on the ground that they are wrong on

merits but that the manner of arriving at the orders was defective

and indicated breach of the mandate of Section 308.

11] Accordingly, Rule is made absolute by quashing and

setting aside the impugned orders of the Collector, Chandrapur and

Regional Director, Municipal Administration, Nagpur, respectively

dated 18th November, 2015 and 21 st November, 2016. It is made

clear that since the matter is not decided on the merits of the

Municipal Council's case under Section 308 of the Act, and since

the Municipal Council even otherwise has powers under the Act to

redress the grievance of respondent No.4, this order shall not

prejudice the Municipal Council in adopting any step permissible to

it in law, including a fresh application under Section 308 of the Act

to the Collector or resort to Section 81(15) of the Act. All rights

and contentions of the parties on merits in that behalf are kept

open.

12] The petition is disposed of in these terms.

                                                                                          JUDGE
        PBP 





         wp6809.16.J.odt                                                                                               9/9