Bombay High Court
Smt.Prabha Madhukar Parlewar & 6 Ors vs State Of Maharashtra And 4 Others on 4 October, 2018
Author: B. P. Dharmadhikari
Bench: B. P. Dharmadhikari, M. G. Giratkar
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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1143 OF 2004
Petitioners : (1) Sau. Prabha w/o Madhukar Parlewar,
aged about 50 years, occupation Household,
r/o Wankhede Layout, Buldhana.
(2) Arvind S/o Bhalchandra Dalal,
aged about 32 years, occupation service.
(3) Rajesh s/o Bansilal Laddha,
aged about 34 years, occupation service.
(4) Umesh s/o Balkisan Agrawal,
aged about 32 years, occupation service.
(5) Moreshwar S/o Bapurao Joshi,
aged about 30 years, occupation service.
(6) Pradip S/o Rambhau Nagtode,
aged about 36 years, occupation service.
(7) Sou. Anjali w/o Shirish Deshpande,
aged about 38 years, occupation household.
Petitioners 2 to 7 are all residents of Buldhana
Urban Cooperative Credit Society Ltd., Buldhana,
Chandak Niwas, Prabhag No. 3, Buldhana.
VERSUS
Respondents : (1) State of Maharashtra through Chief
Secretary, Maharashtra State, Mantralaya,
Mumbai.
(2) Municipal Council, Buldhana through its
Chief Officer, Buldhana.
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(3) Additional Commissioner, Amaravati
Division, Amaravati
(4) Collector, Buldhana.
(5) Rajmata Jijau Sanskrutik Wa Krida Kendra,
Buldhana.
with
WRIT PETITION NO. 2369 OF 2003
Petitioners : (1) Keshaorao Shankarrao Ekbote,
Social Worker, Resident of Chaitanyawadi,
Buldana.
(2) Vitthal Dnyandeo Yeole,
Resident of Old Village Prabhgag No. 9,
Buldana.
(3) Lalit Mulchandji Bedmutha,
Resident of Chaitanyawadi, Buldana.
(4) Rajesh Jagannath Helge, Resident of
Wankhede Layout, Buldana.
(5) Sunil Madhao Bhagyawant, Resident of
Old Village Prabhag No. 4, Buldana.
VERSUS
Respondents : (1) State of Maharashtra through Chief
Secretary, Maharashtra State, Mantralaya,
Mumbai.
(2) Secretary, City Development Department,
Maharashtra State, Mantralaya, Mumbai.
(3) Director, Municipal Council Administration,
Mumbai.
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(4) Collector, Buldhana.
(5) Town Planning Officer, Buldhana.
(6) Sub Registrar, Buldana, Tq. And Dist.
Buldana.
(7) Municipal Council, Buldana through its
Chief Officer, Buldana.
(8) Sou. Pushpatai Radheshyam Chandak,
Chandak Niwas, Prabhag No. 3, Buldana.
(9) Shri Radheshyam Devkisanji Chandak,
Chandak Niwas, Prabhag No. 3, Buldana.
(10) Sou. Prabha w/o Madhukar Parlewar,
Wankhede Layout, Buldana.
(11) Arvind Bhalchandra Dalal, Buldana
Urban Coop. Credit Society Ltd., Buldana,
Chandak Niwas, Prabhag No. 3, Buldana.
(12) Rajesh Bansilal Laddha, Buldana
Urban Coop. Credit Society Ltd., Buldana,
Chandak Niwas, Prabhag No. 3, Buldana.
(13) Umesh Balkisan Agrawal, Buldana
Urban Coop. Credit Society Ltd., Buldana,
Chandak Niwas, Prabhag No. 3, Buldana.
(14) Moreshwar Bapurao Joshi, Buldana
Urban Coop. Credit Society Ltd., Buldana,
Chandak Niwas, Prabhag No. 3, Buldana.
(15) Pradip Rambhau Nagtode, Buldana
Urban Coop. Credit Society Ltd., Buldana,
Chandak Niwas, Prabhag No. 3, Buldana.
(16) Sou. Anjali Shirish Deshpande, C/o
Shirish Dinkarrao Deshpande, Buldana
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Urban Coop. Credit Society Ltd., Buldana,
Chandak Niwas, Prabhag No. 3, Buldana.
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Shri U. S. Dastane, Advocate for the petitioners in Writ Petition No.
1143/04 and for respondent nos. 10 to 16 in Writ Petition No. 2369/03
Shri P. C. Madkholkar with Shri R. D. Karode, Advocates for petitioners
in Writ Petition No. 2369/03
Shri N. R. Patil, Assistant Government Pleader for the State/respondent
nos. 1, 3 & 4 in Writ Petition No. 1143/04 & and for respondent nos. 1
to 4 and 6 in Writ Petition No. 2369/03
Shri R. L. Khapre with Shri A. S. Shukla, Advocates for Municipal
Council, Buldhana
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CORAM : B. P. DHARMADHIKARI AND
M. G. GIRATKAR, JJ.
Date : 04/10/2018. Oral Judgment (Per : B. P. Dharmadhikari, J.)
Subject matter of both the petitions is similar and as separate consideration would result in duplication, on 21-6-2007, while admitting Writ Petition No. 1143/2004, this Court has directed that both matters should be heard together.
2. Writ Petition No. 1143/2004 is by individuals who are purchasers of plots carved out in land statutorily required to be kept open in sanctioned lay out. Petitioners in Writ Petition No. 2369/2003 have approached this Court in public interest. According to them, said ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 5 jg.wp 2369.03 & 1143.04.odt sale deeds in favour of petitioners in Writ Petition No. 1143/2004 are illegal and, therefore, same should be quashed and set aside.
3. We have heard learned Advocate Shri Dastane for the petitioners in Writ Petition No. 1143/2004 and for respondent nos. 10 to 16 in Writ Petition No. 2369/2003, learned Assistant Government Pleader for State Government and Additional Commissioner as also Collector, Buldhana, learned Advocate Shri Khapre with Advocate Shri Shukla for Municipal Council, Buldana and learned Advocate Shri Madkholkar with Advocate Shri Karode for petitioners in Writ Petition No. 2369/2003.
4. Shri Dastane at the outset submitted that prayer clause (a) in Writ Petition No. 1143/2004 should be read and considered only to the extent of challenge to orders passed by the Collector and the Additional Commissioner. Relief of declaration of validity of sale deeds by petitioners claimed therein is not being pressed into service and it should be kept open to petitioners to approach competent forum for that purpose.
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5. In this backdrop, he adds that the possession of petitioners on open space is being questioned because of clause v(f) contained in order passed by Sub Divisional Officer (S.D.O.), Buldana on 24-11-1978 while permitting conversion of Survey No. 22 of Buldana into non- agricultural land and for preparing lay out upon it. He submits that said clause casts an obligation upon landlord Shri Laxman Wankhede which cannot be sustained. It is without jurisdiction and in any case an abuse of power by revenue authorities. Submission is Section 44 of the Maharashtra Land Revenue Code does not authorize person permitting change of user to impose such a condition. Without prejudice, he adds that even on facts, Shri Laxman Wankhede has not executed and registered any relinquish deed in favour of the Municipal Council, Buldana and hence his title to that open space is not extinguished till date. Petitioner no. 1 as his heir is owner of that open space, exercised her rights and sold plots to petitioners in Writ Petition No. 1143/2004 for valuable consideration.
6. He therefore submits that this act of registering and executing sale deeds is civil act between the private parties with which Municipal Council, Buldana is in no way concerned. Said act therefore ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 7 jg.wp 2369.03 & 1143.04.odt could not have been questioned under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as '1965 Act').
7. Inviting attention to impugned order passed by the Collector under Section 308 of the 1965 Act, he submits that said order overlooks this private nature of transaction and instead of taking note of jurisdiction available, proceeds to quash and set aside the sale transactions. By placing reliance upon Division Bench judgment of this Court in the case of Sunil S/o Manikrao Aparadhe Vs. State of Maharashtra and others reported at 2006(2) Mh.L.J. 185, he submits that as there was nothing to be suspended or prohibited, on 14-8-2003 when Collector, Buldhana passed impugned order, that order is without jurisdiction and unsustainable.
8. He further adds that scheme of Section 308 is peculiar. It is emergent power given to Collector and hence jurisdiction with Collector ceases after he addresses the emergency. Once he passes an order prohibiting doing of something or staying the action, he has to submit the report to his superior, namely, Regional Director of Municipal ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 8 jg.wp 2369.03 & 1143.04.odt Administration (Additional Commissioner). aggrieved by directions of Collector can thereafter move that superior authority for vacation of orders. He submits that here, Collector has not submitted any report to the Regional Director of Municipal Administration, namely, Additional Commissioner, Amravati. He points out that it is petitioners who in peculiar facts approached that authority in revision under Section 312 of the 1965 Act. Instead of considering these aspects, Additional Commissioner has again mechanically upheld the findings of the Collector.
9. He has also submitted that clause (f) in order dated 24-11-1978 is void and cannot be sustained at all. He is relying upon judgment of Hon'ble Apex Court in the case of Pt. Chetram Vashist (dead) by LRs. Vs. Municipal Corporation of Delhi reported at (1995) 1 SCC 47, particularly, paragraph nos. 4 and 6 thereof.
10. Inviting attention to order of Collector, he submits that the resolution of Municipal Council dated 21-9-2002 does not deal with plots purchased by petitioners. It deals with a distinct part of open space in lay out. Municipal Council itself resolved to make over that ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 9 jg.wp 2369.03 & 1143.04.odt piece of land to an educational society, namely, Jijamata Rashtriya Sanskar Pratisthan, Chikhali, District Buldana and while passing resolution has also accepted sale deeds executed by landlord in favour of petitioners. He submits that adverse order of Collector against them was never questioned by that establishment and though it is respondent no. 5 in Writ Petition No. 1143/2004, it has chosen not to contest the matter.
11. He therefore submits that it is purely a private transaction between land owners and purchasers that has been interfered with by Collector under the guise of exercising jurisdiction under Section 308.
12. He points out that these purchases by petitioners are also looked into in a subsequent resolution by General Body of Municipal Council on 12-3-2003. On that day, after considering provisions of the Maharashtra Gunthewari Development (Regulation, Upgradation and Control) Act, 2001 (hereinafter referred to as '2001 Act'), General Body of Municipal Council has resolved to accept the sale deeds and regularize the same. He contends that this resolution is not under the ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 10 jg.wp 2369.03 & 1143.04.odt 1965 Act but under 2001 Act and it could not have therefore been assailed under Section 308.
13. He points out that even today, petitioners - purchasers are in possession of their respective plots and they could not construct upon it because of order of status quo operating in the matter.
14. Learned Assistant Government Pleader as also learned counsel appearing for Municipal Council submit that impugned orders passed by Collector need to be viewed only in the backdrop of role played by or available to Municipal Council in the matter. Order dated 14-8-2003 passed by the Collector examines all facts, looks into relevant resolutions and is aimed at protecting the interest of Municipal Council. The power exercised is, therefore, under Section 308 only and because of timely intervention, the loss to Municipal Council and public has been avoided. The respective learned counsel submit that language in sub- clause (1) of Section 308 authorizes Collector to stay or then to prohibit doing of anything which is detrimental to interest of Municipal Council. Here, the private parties have prepared and were proceeding to act to the prejudice of Municipal Council and there design has been thwarted ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 11 jg.wp 2369.03 & 1143.04.odt because of intervention by the Collector. They therefore submit that power exercised is within four corners as explained by Full Bench of this Court in the case of Sanjay Govind Sapkal and others Vs. Collector of Dhule and others reported at 2004(2) Mh.L.J. 874 while interpreting provisions of Section 308 of the 1965 Act.
15. According to them, the grievance made in relation to gunthewari regularization also needs to be looked into in this backdrop only. They point out that 2001 Act enable gunthewari development which is completed till 1-1-2001. Sale deeds in favour of the petitioners are after that date and still Municipal Council has on 12-3-2003 overlooking this provision passed a resolution and regularized that development. The resolution, therefore, is rightly examined by the Collector under Section 308 of the 1965 Act.
16. They further point out that clause (f) is not part of agreement between the parties but it is part of order dated 24-11-1978 passed by S.D.O. under Section 44 of the Maharashtra Land Revenue Code. The landlord has taken advantage of that order, acted upon it and that order has become final. Any condition or stipulation therein ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 12 jg.wp 2369.03 & 1143.04.odt therefore cannot be at this stage questioned as bad or unconstitutional. They also point out that because of such direction, the landlord was given certain concession and non-agriculture assessment has not been charged on entire land forming Survey No. 22. An assessment has been done only on plotable portion thereof.
17. Respective learned counsel also state that similar clause was looked into by the Division Bench of this Court in the case of Friends Co-operative Housing Society Ltd. Vs. The Nagpur Improvement Trust and others reported at 2008 (5) ALL MR 815 and has been upheld.
18. Lastly, they submit that issuing of writ as sought for by petitioners would result in creating the illegal situation and hence this Court should refrain from intervening in writ jurisdiction.
19. Advocate Shri Khapre, however, submits that the sale deeds between private parties could not have been cancelled or set aside by the Collector in exercise of powers under Section 308 of 1965 Act.
20. Advocate Shri Karode holding for Shri Madkholkar in brief submission states that the material on record itself shows that there ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 13 jg.wp 2369.03 & 1143.04.odt could not have been any sale and Collector has only applied order of S.D.O. dated 24-11-1978 and provisions of the 2001 Act. The consequence, therefore, is apparent and sale deeds cannot be said to be legal and valid.
21. Advocate Shri Dastane in reply arguments briefly reiterates contentions already raised by him. He points out that clause (f) envisages execution and registration of relinquish deed and that has not been done till date. Hence, recourse to clause (f) by Municipal Council or by the Collector is not open.
22. He submits that initially, Writ Petition No. 1143/2004 was filed before the learned Single Judge but then due to prayer for declaration contained in prayer clause (a), it came up before the Division Bench. The petitioners have given up that prayer for declaration because according to them, lower authority, namely, Collector himself could not have looked into it. He therefore argues that jurisdiction to be exercised by this Court in present matter is essentially under Article 227 of the Constitution of India and hence there is no question of this Court refusing to intervene when absence of jurisdiction ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 14 jg.wp 2369.03 & 1143.04.odt or then excessive exercise thereof is demonstrated. The defence that illegality will be restored is therefore misconceived.
23. He relies upon the judgment in the case of Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar (Mrs.) and anr. reported at (1994) 2 SCC 718 to urge that when lower authorities act without jurisdiction, the High Court cannot ignore the same and it has to correct that error. Judgment in the case of State of Rajasthan Vs. Bhawani Singh and ors. reported at 1993 Supp (1) SCC 306, particularly, paragraph 7 thereof is relied upon to submit that a question of title cannot be examined in writ jurisdiction. He has submitted that in any case, petitioners cannot be put in a position worst than one to which they are exposed by impugned order of Collector. Contention is findings of this Court or orders of this Court therefore should not add to injustice suffered by them. To buttress this contention, he relied upon judgment of Apex Court in the case of Pradeep Kumar Vs. Union of India and ors. reported at (2005) 12 SCC 219, particularly, paragraph 4 thereof.
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24. Here, as already noted supra on 21-6-2007, while issuing rule in Writ Petition No. 1143/2004, order has been passed and petition has been clubbed for hearing with Writ Petition No. 2369/2003. Petitioners in Writ Petition No. 2369/2003 seek an order to quash and set aside permission given by Municipal Council to petitioners in Writ Petition No. 1143/2004 to use the plots for housing purpose. By next prayer, they seek cancellation of sale deeds effected by respondent no. 10 in that petition in favour of respondent nos. 11 to 16 therein. Respondent nos. 10 to 16 are petitioners in Writ Petition No. 1143/2004.
25. Order of Collector passed under Section 308 on 14-8-2003 shows that it is on application moved by Rajmata Jijau Sanskrutik Pratisthan. The application is moved by said sports establishment along with other citizens. They have pointed out that open space in Survey No. 22 belong to Municipal Council and is being used by said establishment as playground. They have been given the details of sale deeds executed by petitioner no. 1 in favour of other petitioners on 1- 7-2002 and requested for cancellation thereof. They have requested Collector to stop sell of plots in playground, to stop mutation entries ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 16 jg.wp 2369.03 & 1143.04.odt accordingly and not to grant permission for construction in that open space. This grievance is looked into by the Collector on 14-8-2003.
26. Order dated 14-8-2003 shows a finding on three issues. First issue is about intervention in jurisdiction under Section 308. Second issue is about validity of Resolution No. 6 passed by Municipal Council permitting part of open space to be given to Jijamata Rashtriya Sanskar Pratisthan, Chikhali and last issue is about legality of sale deeds. Collector has found jurisdiction in him as Municipal property was involved and there was challenge to Resolution No. 6 passed by Municipal Council. He has then found resolution unsustainable and in the process has also examined sale deeds and found that there could not have been such sale deeds.
27. As far as legality of Resolution No. 6 dated 21-9-2002 passed by Municipal Council to allot part of open space to Jijamata Rashtriya Sanskar Pratisthan, is concerned, it cannot be argued that Section 308(1) does not authorize Collector to look into validity or otherwise of said resolution. Jijamata Rashtriya Sanskar Pratisthan, Chikhali was to be allotted part of open space subject to terms and ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 17 jg.wp 2369.03 & 1143.04.odt conditions stipulated therein. After this resolution dated 21-9-2002, there is no order issued by the Chief Officer of Municipal Council and there is no allotment in favour of that Jijamata Rashtriya Sanskar Pratisthan. Resolution therefore is not implemented. It is at that stage that Collector has intervened. Resolution is found to be unsustainable and while recording reasons therefore, the Collector has looked into order dated 24-11-1978. Condition no. 5 therein has been relied upon to hold that said open space is transferred to Municipal Council free of cost. The consideration for such "free of cost" transfer is also mentioned in the order. Collector finds that though this open space belongs to Municipal Council, it is to be maintained for use of plot owners in lay out. Then there is reference to Section 92 of 1965 Act and a resolution of State Government dated 10-6-1996. Collector finds that as per said resolution, owners of plots in lay out have first right on such open space. Collector also finds that reason or logic behind it is consideration paid by plot holders in lay out to land owner. The Collector therefore finds that resolution of Municipal Council to transfer part of that open space to above mentioned Pratisthan is illegal.
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28. Insofar as this finding against Pratisthan is concerned, said Jijamata Rashtriya Sanskar Pratisthan has chosen not to assail it and it has become final.
29. Last paragraph of order then deals with the sale deeds. While considering this issue, the Collector takes note of fact that though open space was in the name of original owner, he had no right to transfer it. It also finds that owner had filed Civil Suit No. 35/1998 in the Court of 2nd Joint Civil Judge Junior Division, Buldana for restraining municipal council from takings its possession and prayer for temporary injunction made therein was rejected on 27-4-1998. Miscellaneous Civil Appeal No. 22/1998 filed under Order XLIII Rule (1)(r) of the Code of Civil Procedure by original owner was also dismissed by the District Court. The Collector, therefore, has concluded that original owner could not have sold the land.
30. The Collector then has found fault with Sub-Registrar who has recorded and registered the sale deeds. Plots were carved in open space illegally and hence as per Government Resolution dated 18-9-2002, no objection certificate of S.D.O. ought to have been ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 19 jg.wp 2369.03 & 1143.04.odt produced for registration of sale deeds in revenue records. In revenue record, it is non-agriculture land and according to Collector, Sub- Registrar therefore ought to have looked into sanctioned lay out plan.
31. The Collector then has looked into action of Municipal Council under the 2001 Act in accepting development so done for regularizing the sale deeds. The Collector expressly finds that all sale deeds are after 2001 and hence action taken by Municipal Council was/is contrary to law. The non-cooperation or then submission of incorrect information by the Chief Officer of Municipal Council is also looked into by the Collector. The Collector has concluded that the action of Municipal Council in regularizing the plots purchased by petitioners was without jurisdiction. There is specific finding that Chief Officer of Municipal Council was going out of way to assist the petitioners. None of these findings are assailed as factually wrong.
32. Accordingly, final order has been passed. Resolution No. 6 dated 21-9-2002 has been quashed and set aside. All transactions in relation to plots in open space in Survey No. 22 are found to be prima facie void ab initio and hence, a direction has been given to initiate ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 20 jg.wp 2369.03 & 1143.04.odt proper enquiry and action against the concerned Sub-Registrar. Similarly, there is also a direction to call explanation from Chief Officer of Municipal Council. Municipal Council has been asked to continue with its possession over open land.
33. This order therefore only records a ''prima facie'' finding that all transactions between private parties in relation to Survey No. 22 are void ab initio. The order in its operative part does not direct cancellation of sale deeds. In substantive part of order while discussing sale deeds, only aspect looked into is in relation to applicability of 2001 Act and that discussion has bearing on Resolution No. 23 dated 12-3-2003 by which Municipal Council had ordered regularization of sale deeds.
34. Perusal of 2001 Act, particularly, Section 3 itself shows that all gunthewari developments existing on 1-1-2001 can be regularized under said Act after following procedure prescribed therein. Section 2(1)(a) defines gunthewari development which means plots formed by unauthorisedly sub-dividing privately owned land with building, if any, on such plots including excess vacant land under the Urban Land (Ceiling and Regulation) Act, 1976. Thus open land in a sanctioned lay ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 21 jg.wp 2369.03 & 1143.04.odt out cannot be subjected to 2001 Act at all. If any plots are carved out on such open space in a sanctioned lay out that act does not qualify as gunthewari development. Not only this, here, all sale deeds between private parties are registered and executed on 1-7-2002 i.e. after 1-1-2001, thus, so called development was not in existence on 1-1-2001. With the result, the Collector is right in holding that Municipal Council could not have regularized the plots under the 2001 Act. The impugned order does not however, stay or set aside resolution dated 12-3-2003 passed by municipal council. Facts and dates demonstrate that the resolution is not under 2001 Act.
35. Petitioners are harping upon the judgment of Hon'ble Apex Court and Division Bench of this Court to urge that clause (f) which puts embargo upon right of landlord or then assumes ownership of open space free of cost is without jurisdiction. Judgment of Hon'ble Apex Court in the case of Pt. Chet Ram Vashista (dead) by LRs. Vs. Municipal Corporation of Delhi (supra) shows that there, a contractor had submitted a plan for sanction to Municipal Corporation. Standing Committee in November, 1964, resolved that building activity in those parts of Ganga Ram Vatika be allowed where services were already ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 22 jg.wp 2369.03 & 1143.04.odt completed subject to the condition that the open spaces for parks and schools be transferred to the Corporation free of cost. Thus Hon'ble Apex Court has considered entirely different arrangement between parties in that matter and a unilateral resolution of standing Committee.
36. The Division Bench of this Court in the case of Sunil s/o Manikrao Aparadhe Vs. State of Maharashtra and others (supra) has considered scope of power available to Collector under Section 308. There, the Collector had cancelled the resolution of Municipal Council granting approval to the tender for repairs and maintenance of street lights, tender for electrification under Integrated Urban Development Scheme. The Division Bench has found that jurisdiction vested in Collector permitted him only to suspend order/resolution and did not authorize him either to cancel or set aside the same.
37. Scheme of Section 308 is rightly explained to us by learned counsel for petitioners. Though the Collector can only pass an order staying or prohibiting something, he has to submit a report to Director along with copy thereof. Sub-section 3 thereafter permits Municipal Council an opportunity to forward a statement within 30 days to ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 23 jg.wp 2369.03 & 1143.04.odt Director for rescinding, refusing or modifying such order of Collector. Under sub-section 4, after receipt of such statement of municipal council, Director has, within period of six months to pass suitable orders either confirming the order of Collector or rescinding, refusing or modifying that order. Thus it is final order of Director of Municipal Administration that holds the field. This provision does not permit petitioners to move for such rescinding or modification.
38. Here, Municipal Council did not feel itself aggrieved by order of Collector dated 14-8-2003. On the contrary, petitioners in Writ Petition No. 1143/2004 approached the office of Director (Additional Commissioner), Amravati Division in revisional jurisdiction for setting aside the order of Collector. This is also forum envisaged under Section 308(4). The Additional Commissioner has again applied mind to all facts in detail and found no error in order of the Collector.
39. With the result, grievance which could have been made by an aggrieved Municipal Council against order of the Collector before the Additional Commissioner was in fact made by present petitioners and that grievance has been adjudicated upon. No prejudice therefore is ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 24 jg.wp 2369.03 & 1143.04.odt caused to the petitioners because of act of Collector in passing final order dated 14-8-2003. Perusal of order of Collector, however, reveals that he had forwarded copy of that order to Additional Commissioner also.
40. Perusal of the Division Bench judgment of this Court in the case of Friends Co-operative Housing Soc. Ltd. Vs. The Nagpur Improvement Trust and others (supra) reveals that there, the Division Bench has found in planning authority a jurisdiction to acquire. It has taken note of fact that Section 45 of Nagpur Improvement Trust Act contained a power which is equivalent to Section 6 of the Land Acquisition Act, 1894. It is in view of this power, similar direction and provision for vesting free of cost in an agreement between the parties has been upheld.
41. In fact before us, the provision for free vesting is not consented to by any party. It is imposed upon them by an order passed by a competent authority in terms of jurisdiction available to it. Sub Divisional Officer while permitting conversion of user under Section 44 of Maharashtra Land Revenue Code on 24-11-1978, ordered as under : - ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 :::
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f) That the grantee shall relinquish free of cost to the Municipal Council, Buldana the land reserved in the layout for roads, lanes, drains, open space and culverts for public purpose in accordance with the provisions of the Code. In view of this the land in the suit layout under the above items have not been levied with the non-agricultural assessment.
42. This direction, therefore, shows that landlord who took advantage of order had/has no option but to relinquish open space in favour of Municipal Council. The open space comprised of land reserved in lay out for roads, lanes, drains etc. It also speaks of open space for public purpose. Landlord can not pick and choose and has to accept entire order as it is or then not at all.
43. It is not in dispute here that other occupants of lay out have paid for that open space and open space is for beneficial enjoyment of other plot owners in that layout. It therefore, follows that landlord was left without title to that open space. The contention that land lord has to execute and register a relinquishment deed in favour of Municipal Council appears to be erroneous. The roads, water pipes, drainage etc., which are fundamental of development activity in any layout have already been built and therefore, the land below it does not continue to ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 26 jg.wp 2369.03 & 1143.04.odt vest with landlords. Finding that landlord has recorded consideration .therefor from plot holders in layout is not even urged to be perverse. The order only points out inbuilt obligation but it has the effect of divesting the owners of their title in the land. Merely because a technical formality of executing a relinquishment deed has not been completed, land lord or his heirs cannot claim any title to it.
44. However, we need not observe anything, conclusively on this aspect. Petitioners or respondents in both the matters have not pointed out to this court developments in civil dispute or in R.C.S. No. 35/1998. Adjudication therein will have definite impact on title of petitioners to their respective plots as also on extent of right of other plot owners in lay out qua the open space in dispute. The Collector has therefore, rightly while passing final order qualified his observation by using word ''prima facie''.
45. We in this jurisdiction cannot therefore, observe anything which may prejudice the adjudication in that suit or in further appeals, if any.
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46. We however do not find any jurisdictional error or perversity in the order of Collector dated 14-8-2003 and hence, the order of Additional Commissioner dated 1-11-2003 also cannot be interfered with. We accordingly, uphold both the orders. Writ petition No. 1143 of 2004 is accordingly dismissed.
47. Insofar as Writ Petition no. 2369 of 2003 is concerned, petitioners therein seek a declaration that permission given by Municipal Council to respondents nos. 11 to 16 to use plot no. 86 for residential purpose be quashed and set aside. There is also prayer to hold enquiry into the whole incident. We have already found supra that regularization of plots purchased by petitioner nos. 2 to 7 in writ petition no. 1143 of 2004 under the 2001 Act is unsustainable. That finding therefore, shows that plots of those petitioners who are respondent nos. 11 to 16 in present matter could not have been regularized under the 2001 Act. Regularization envisaged by the 2001 Act is of gunthewari development existing on 1-1-2001. The sale deeds are on 1-7-2002. It is, therefore, after said date, and plots have been carved out in a sanctioned layout in an open space illegally. It therefore, does not qualify as gunthewari development. The Municipal Council ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:07:06 ::: 28 jg.wp 2369.03 & 1143.04.odt therefore, has high handedly acted in the matter and passed resolution on 12-3-2003 vide Resolution No. 23 regularizing plots purchased by respondent nos. 11 to 16 under 2001 Act. This regularization is now not in existence. It is, therefore, obvious that plots also are not in existence and hence, cannot be used for any purpose including housing purpose by respondent nos. 11 to 16 in Writ Petition No. 2369 of 2003.
48. Insofar as prayer for holding enquiry is concerned, the office of Collector, has on 14.8.2003 in impugned orders itself directed suitable enquiry. It is therefore, obvious that second enquiry into entire episode is unwarranted. Writ Petition No. 2639 of 2003 was filed on 11- 06-2003 i.e. prior to said order of Collector. The prayer in writ petition No. 2369 of 2003 vide clause-A is already granted.
49. Cumulative effect of discussion above is that Collector has by timely intervention protected Municipal interest and public property. Orders of Collector prevented the Municipal Council from completing its act to the prejudice of residents in Municipal Council. The contention that Collector erred in proceeding under Section 308 of 1965 Act is therefore erroneous and unsustainable.
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50. Accordingly, we dismiss Writ Petition No.1143 of 2004 and partly allow writ petition no. 2369 of 2003.
51. Counsel for the petitioners in Writ Petition No. 1143 of 2004 seeks continuation of interim orders for a period of eight weeks more. Respondents and petitioner in other petition are opposing such continuation. Looking to the fact that controversy is pending before this Court since last 15 years, we are inclined to grant the prayer. Accordingly, order of status quo already operating shall continue for a period of eight weeks more and shall cease automatically thereafter.
JUDGE JUDGE
wasnik/kavita
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