Bombay High Court
Smt. Vaishali W/O Ashish Atloye And ... vs Nagar Parishad, Warud, Thr. Its Chief ... on 26 February, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:1947
1 16-111-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 111 OF 2022
PETITIONERS: : 1 Smt. Vaishali W/o Ashish Atloye
Age 37 years, Occupation - Doctor,
2 Shri Ashish S/o Harish Atloye
Age 41 years, Occupation - Business,
Both Residents of Flat No. B-13, Black
Diamond Apartment No.2, Trimurthi
Nagar, Nagpur - 440022
Vs.
RESPONDENTS : 1 Nagar Parishad, Warud,
Through its Chief Officer,
Dist. Amravati
2 State of Maharashtra,
Through its Secretary,
Department of Revenue & Forest,
Mantralaya, Mumbai 32
3 State of Maharashtra,
Through its Secretary,
Department of Urban Development,
Mantralaya, Mumbai - 32
Mr. R.R. Vyas, Advocate for the petitioners
Mr. M.I. Dhatrak, Advocate for Respondent No.1
Ms. T.H. Khan, AGP for Respondent Nos.2 and 3
CORAM : ALOK ARADHE, CJ & AVINASH G.
GHAROTE, J.
DATED : FEBRUARY 26, 2025
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ORAL JUDGMENT (Per : CHIEF JUSTICE)
1. Rule. Rule is made returnable forthwith. Heard
learned counsel for the parties by consent.
2. In this petition, the petitioners have assailed the
validity of the resolution dated 12.11.2012, passed by Nagar
Parishad, Warud, by which resolution has been passed to levy
the mutation fee which is at the rate of 1% of the purchase
price.
3. The facts giving rise to filing of the present
petition, in the nutshell, are that, the petitioners had
purchased the plot of land vide registered sale deed dated
24.06.2021 for a consideration of Rs.42,53,700/-. The
petitioners applied for mutation of their names in the records
of Nagar Parishad, Warud. The Nagar Parishad, Warud by
communication dated 04.10.2021, informed the petitioners
that the petitioners are required to pay a sum of Rs.42,537/-,
on the basis of the resolution passed by Nagar Parishad,
Warud dated 12.11.2012, which is 1% of the purchase price.
Hence, this petition.
4. The learned counsel for the petitioners submitted
that the impugned resolution is illegal, arbitrary and is unjust
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and is violative of the fundamental rights guaranteed to the
petitioners under Article 14 of the Constitution of India. It is
further submitted that the petitioners have remedy of
approaching the revisional authority i.e. the State
Government under Section 318 of the Maharashtra Municipal
Councils Act, 1965. It is further pointed out that this writ
petition has been entertained and therefore, the petitioners
may not be relegated to the revisional remedy.
5. On the other hand, the learned Assistant
Government Pleader supported the resolution passed by
Nagar Parishad.
6. We have considered the rival submissions made on
behalf of both the sides and have perused the record. The
writ jurisdiction of this Court notwithstanding, an alternate
remedy, can be exercised by this Court in three contingencies,
which are set out by the Hon'ble Supreme Court in the case
of Whirlpool Corporation Vs. Registrar of Trade Marks,
Mumbai and others reported in (1998) 8 SCC 1, namely (i)
where there has been violation of principles of natural
justice; (ii) where the order of proceedings wholly without
jurisdiction and (iii) vires of an act is challenged.
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7. In L. Hirday Narain Vs. Income Officer, Barelly
1970 (2) SCC 355, it has been held that once the High Court
entertains the petition, inspite of availability of alternate
remedy and has heard the parties on merits, it would
ordinarily be unjustifiable for the High Court to dismiss the
same on the ground of existence of statutory provisions, to
challenge the same.
8. In the instant case, on 04.07.2022, the Division
Bench of this Court issued notice, however, the issue with
regard to availability of alternate remedy vide resolution
dated 12.11.2012 is kept open. The writ petition was also not
heard on merits. The decision of the Hon'ble Supreme Court
in L. Hirday Narain Vs. Income Officer, Barelly (supra) has no
applicability to the fact situation of this case.
9. It is well settled that this Court will not entertain
the writ petition where there is a statutory alternate
efficacious remedy. The petitioners have remedy to file
revision under Section 318 of the Act by approaching the
State Government. Therefore, we are not inclined to exercise
the extra ordinarily jurisdiction under Article 226 of the
Constitution of India and relegate the petitioners to avail of
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the alternate remedy under Section 318 of the Act.
10. Needless to state that in case the petitioners file the
revision within a period of two weeks from today, the
revisional authority shall consider and decide the revision
which may be preferred by the petitioners expeditiously
according to law by speaking orders.
11. With the aforesaid directions the writ petition
stands disposed of. No costs.
Rule accordingly.
(AVINASH G. GHAROTE, J.) (CHIEF JUSTICE)
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 27/02/2025 10:35:37
