Bombay High Court
Mehboobiya Education Society, Buldana ... vs State Of Maharashtra, Department Of ... on 23 June, 2016
Author: Z.A. Haq
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 ::: Uploaded on - 27/06/2016 ::: Downloaded on - 28/06/2016 23:57:53 ::: 3 wp.3911.14.jud.odt 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 ::: Uploaded on - 27/06/2016 ::: Downloaded on - 28/06/2016 23:57:53 ::: 4 wp.3911.14.jud.odt 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 ::: Uploaded on - 27/06/2016 ::: Downloaded on - 28/06/2016 23:57:53 ::: 5 wp.3911.14.jud.odt 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 ::: Uploaded on - 27/06/2016 ::: Downloaded on - 28/06/2016 23:57:53 ::: 6 wp.3911.14.jud.odt 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 ::: Uploaded on - 27/06/2016 ::: Downloaded on - 28/06/2016 23:57:53 ::: 7 wp.3911.14.jud.odt 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.
::: Uploaded on - 27/06/2016 ::: Downloaded on - 28/06/2016 23:57:53 :::8 wp.3911.14.jud.odt 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 ::: Uploaded on - 27/06/2016 ::: Downloaded on - 28/06/2016 23:57:53 :::