Gujarat High Court
Popatlal Sundarji Chandan And Ors. vs State Of Gujarat on 11 July, 1996
Equivalent citations: (1997)1GLR563
JUDGMENT J.N. Bhatt, J.
1. Whether exercise of powers by the Collector invoking aids of Section 258 of the Gujarat Municipalities Act, 1963 ('Act' for short) in cancelling the resolution of the Municipality and directing it to restore the original position is legal and valid, is the cry raised in these petitions under Articles 226 and 227 of the Constitution of India. The interpretation and applicability of the provisions of Sections 65(2), 80 and 146 is also the legal aspect requiring examination and adjudication.
2. In view of the common questions involved in all these petitions against the common respondents, upon a joint request, they are dealt with and disposed of simultaneously.
3. A sum and substance of the entire group of petitions may shortly be articulated at the outset with a view to appreciate the merits of the petitions and the challenge made by the petitioners.
4. One Easy Co-operative Society Limited which is the petitioner in Special Civil Application No. 12024 of 1995 and petitioners in rest of the petitions individually, came to be allotted plots of land by virtue of a resolution No. 52 of the Bhuj Municipality dated 30-4-1977.
5. It was resolved by the Municipality that since lay-out plan of Pragsar Lake is ready and work of Nala was also over, it was necessary to take into use the plot as described in the said resolution. Respondent No. 3 Municipality authorised its Executive Committee to dispose of the land as per resolution passed in the meeting of the General Body on 21-10-1978 after considering the letter of the Deputy Town Planning Officer, Rajkot dated 11-8-1978. The Municipality had also resolved in pursuance of resolution Nos. 721 and 723 dated 7-12-1978 to hand over possession of the plots to the concerned members and the society. Respondent No. 3 Municipality executed registered sale deeds in favour of the petitioner-society and all the petitioners after taking consideration. Easy Co-operative Society has 11 members. Thus, 11 members of the housing society and other petitioners came to be allotted plots by respondent No. 3 Municipality.
6. Respondent No. 2-Collector, Bhuj, in purported exercise of powers under Section 258(1) of the Act, passed an order cancelling the resolution bearing No. 52 dated 30-4-1977 and further directed the Municipality to restore position existing prior to the aforesaid resolution. This order of the Collector is impugned in this group of petitions.
7. The first contention raised on behalf of the petitioners is that the respondent-Collector invoked the jurisdiction and powers under Section 258 after considerably long period of 17 years and that too without affording an opportunity of hearing to the concerned affected persons and parties. It is, therefore, the case of the petitioners that the impugned order of the Collector is unjust, improper, arbitrary, illegal, without application of mind and against the principles of natural justice. The contention raised on behalf of the petitioners is traversed and controverted on behalf of the respondent-authorities by the learned Assistant Government Pleader Mr. K.C. Shah.
8. It is true that the respondent-Collector has exercised the powers under Section 258(1) of the Act after 17 years but mere taking action late ipso facto would not always be fettered. Section 258 of the Act is relied on by the Collector in passing the impugned order. It would, therefore, be appropriate and expedient to have a look at the provisions of Section 258. Section 258 prescribes powers of the Collector to suspend execution of the orders and actions of the Municipality. It reads as under:
258. (1) If, in the opinion of the Collector, the execution of any order or resolution of a Municipality, or the doing of anything which is about to be done or is being done by or on behalf of a Municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order of resolution of the Municipality is already commenced or completed direct the Municipality to restore the position in which it was before the commencement of the work.
(2) When the Collector makes any order under this section he shall forthwith forward to the Municipality affected thereby a copy of the order with a statement of the reasons for making it and also submit a report to the State Government alongwith copies of such order and statement.
(3) Against the order made by the Collector under Sub-section (1) the Municipality may prefer an appeal to the State Government within thirty days from the date on which it receives a copy of the order. The State Government may on such appeal being preferred rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force, with or without modification, permanently or for such period as it may specify:
Provided that the order shall not be revised, modified or confirmed by the State Government without giving the Municipality reasonable opportunity of showing cause against the order.
It could very well be visualised from the aforesaid provisions that the Collector is empowered to suspend execution of any order or resolution of the Municipality or any action which is likely to cause injury or annoyance to the public or would lead to breach of peace or is otherwise unlawful. He has to issue an order suspending execution or prohibiting action thereunder or execution of any work in pursuance of the order or resolution of the Municipality. The impugned order came to be passed by the Collector, Kutch at Bhuj on 18-3-1994 reversing the resolution dated 30-4-1977. Obviously, there was exercise of power under Section 258 after a spell of 17 years which can said to be prima facie unreasonable, but cannot be said invariably fatal on account of delay. Therefore, the contention that the impugned order should be quashed merely on the ground of delay cannot be acceded to.
9. The second contention is that the impugned order of the respondent-Collector is a non-speaking order and shows non-application of mind and without observing the principles of natural justice. In light of the facts and circumstances emerging from the record of the case, this submission requires to be subscribed to. The impugned order appears to be cryptic and non-speaking. In the impugned order, the Collector has placed reliance on the provisions of Section 80 of the Act. Section 80 prescribes powers to acquire and hold land for the purposes of the Act, by the Municipality. Relevant provisions of Sections 80(1) and (2) are required to be examined as they are relied on by the Collector in the impugned order. They read as under:
80. (1) A Municipality may acquire and hold property both movable and immovable, within or without the limits of the Municipal Borough.
(2) All property of the nature specified in the clauses to this section, not being specially reserved by the State Government shall be vested in and belong to the Municipality, and shall, together with all other property of whatever nature or kind, which may becomes vested in the Municipality, be under its direction, management and control and shall be held and applied by it as trustee, subject to the provisions and for the purposes of this Act:
(a) All public town-walls, gates, markets, slaughter houses, manure and night-soil depots.
(b) All public streams, tanks, reservoirs, cisterns, wells, springs, acquaducts, conduits, tunnels, pipes, pumps and other water-works; and all bridges, buildings, engines, works, materials and things connected with or appertaining to such waterworks; and also any adjacent land, not being private property, appertaining to any public tank or well.
(c) All public sewers and drains; all sewers, drains, tunnels, culverts, gutters and water courses in, alongside or under any streets, and all works, materials and things appertaining thereto; all dust, dirt, dung, ashes, refuse, animal matter, filth or rubbish of any kind collected by the Municipality from the streets, houses, privies, sewers, cesspools or elsewhere.
(d) All public lamps, lamp posts and apparatus connected therewith, or appertaining thereto.
(e) All lands and public buildings transferred to it by the Government by gift or otherwise, for local public purposes.
(f) All public streets and the pavements, stones and other materials thereof and also all trees, erections, materials, implements and things provided for such streets:
Provided that lands and public buildings transferred to the Municipality by the State Government under Clause (e) shall not, unless otherwise expressly provided in the instrument of transfer, belong by right of ownership to the Municipality but shall vest in it subject to the terms and conditions of the transfer, and on the breach of any of the said terms or conditions the land with all things attached thereto, including all fixtures and structures thereon and the public buildings shall revest in the State Government and it shall be lawful for the State Government to resume possession thereof.
10. In the impugned order, it is stated that in view of provisions of Sections 80(2), the Municipality has to maintain the property vested in it, but by virtue of the resolution, it has divided the land into several plots which is held to be unauthorised. Reliance is also placed on the provisions of Section 65(2) of the Act. It must be noted firstly that provisions of Section 80 are subject to the provisions and purpose of the Act. Relevant provisions of Sections 80 and 65 are required to be referred to and examined.
11. Section 65 refers to contracts by and against the Municipality and prescribes powers of Municipality to sell, lease or otherwise transfer any moveable or immovable property vested in it or acquired by it subject to other provisions of the Act and particularly subject to the restrictions contained in Sub-section (2) of Section 65. Sub-section (2) provides that Municipality is obliged to seek previous permission of the State Government in case of every lease or sale of land under Section 146(1) and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which exceeds one lakh of rupees. It is, therefore, incumbent upon the Municipality to obtain previous permission of the State Government in the contingencies mentioned in Sub-section (2) of Section 65.
12. It appears from the facts and circumstances emerging from the record of the present case and from the plain perusal of the impugned order that respondent No. 2-Collector has assumed that sale of the plots out of land of the Municipality by virtue of its resolution fell within the restricted ambit of Section 65(2). It is an admitted fact that there is no material in the order or on record which would show that the contract of sale between the Municipality and the petitioners attracted the rigours of provisions of Section 65(2). It is not manifested from the impugned order that the restrictions contained in Sub-section (2) of Section 65 came to be attracted. Hence, there is non-application of mind on the part of the Collector. Unfortunately, he has also not taken pain to articulate in the impugned order as to which of the restrictions could be attracted under Section 65(2) warranting previous permission of the State Government for the transactions in question. Therefore, there is non-application of mind. The order is also non-speaking on the material aspects. On this ground, the impugned order is required be quashed and the matter is required to be remanded.
13. There is also another ground on which the impugned order is vulnerable. The petitioners are allottees and transferees of plots of land by virtue of registered sale deeds. It is an admitted fact that the petitioners who are affected parties on account of the impugned order of respondent No. 2 had no notice nor were they given an opportunity of hearing. It is, therefore, an admitted fact that the impugned order of the Collector came to be recorded without giving any opportunity of hearing to the petitioners who are vitally interested and affected parties. It is a settled proposition of law that no person can be visited with civil or evil consequences without there being an opportunity of hearing to him. The exercise of power and jurisdiction by the Collector and in passing the impugned order has deprived all the petitioners of their right to hold immovable property purchased by them by virtue of registered sale deeds without getting an opportunity of hearing. Could this be allowed for a moment? The obvious and positive answer will be in the negative. Exercise of such powers by the Collector is illegal and impermissible without observing the principles of natural justice.
14. It is contended that the petitioners are belonging to the poor strata of society and they are staff members of Administration of the Municipality, Court, police and hospital. Most of them are class III and IV employees who are given small size of plots out of Pragsar Lake land and lay-out plan. It is contended that staff members of different departments of the State Government did not get any opportunity of hearing and, therefore, they are seriously prejudiced and their right to hold property is vitally affected. This submission is required to be accepted in view of the fact that the respondent-Collector while passing the order has not afforded an opportunity of hearing to the petitioners.
15. It is also submitted that after passing the impugned order, the disputed land came to be allotted to respondent No. 4 District Superintendent of Police, Kutch at Bhuj by an order dated 16-4-1994 for the purpose of several activities by the police personnel, viz., parade, physical training, horse riding and such other allied activities. It is, therefore, contended that once the impugned order is quashed, the order granting land to respondent No. 4 D.S.P. should also be quashed. Having regard to the facts and circumstances, this submission is not acceptable at this stage. The matter is being remanded to respondent No. 2-Collector for a fresh inquiry and decision. The land in question, after divesting from Bhuj Municipality into the State Government, came to be allotted to the D.S.P., Kutch at Bhuj. It is found from the record that D.S.P. had requested the State Government/Collector to allot plot of land, and the Collector, after having taken into consideration the demand of D.S.P. and looking to the nature of activities to be carried on upon said land, had allotted the land belonging to the Government to the office of D.S.P., Kutch at Bhuj. Various activities are being undertaken by the said office for police personnel for the parade, physical training, horse riding and such other allied activities. The land is already transferred to the office of the D.S.P. and the matter is being remanded to the Collector for fresh decision. It is an admitted fact that petitioners are not in possession. In the peculiar facts and circumstances, this Court is not inclined to set aside grant of land by the Collector to the office of the D.S.P. for the aforesaid purpose until the matter is reheard and decided by the respondent-Collector. Therefore, the request of the learned Advocate for the petitioners that order of grant of land in favour of respondent No. 4 D.S.P. should also be quashed and set aside, at this juncture, is not accepted. Order of grant of land and resultant allotment of land to respondent No. 4 will be subject to final decision. The respondent-authorities are directed to maintain status quo qua possession until final hearing of the matter, after remand.
16. After having examined the factual scenario emerging from the relevant facts and proposition of law, the impugned order dated 18-3-1994 recorded by respondent No. 2-Collector cancelling resolution of the Municipality dated 30-4-1977 and directing to restore status quo ante is suffering from the vice of misreading, non-application of mind and non-observance of the principles of natural justice requiring interference of this Court in this group of petitions under Articles 226 & 227 of the Constitution of India.
In the result, the impugned order is quashed and the matter is remanded to respondent No. 2-Collector, Kutch at Bhuj with, a direction to hold a fresh inquiry and pass orders in accordance with law, after giving an opportunity of hearing to the parties concerned and examining available record and relevant material. The petitions are accordingly allowed to the aforesaid extend. Rule is accordingly made absolute with no order as to costs.