Gujarat High Court
Raghavbhai Arjanbhai Through His Power ... vs Amreli Nagarpalika And Anr. on 13 December, 1993
Equivalent citations: (1994)2GLR1117
JUDGMENT A.P. Ravani, J.
1. Petitioners were occupying shops Nos. 15 and 16 belonging to respondent No. 1 - Amreli Municipality. They were put in possession of the shops pursuant to Resolutions Nos. 22 and 23 dated July, 22/23, 1992 passed by respondent No. 1 - Amreli Municipality. Respondent No. 2 Collector, Amreli, has cancelled the resolution by order dated December, 18/21, 1992 in case No. 17 of 1992. It has also been directed that possession of the shops be taken over from the petitioners and the amount paid by them be refunded to them. As per the order, possession of the shops has been taken over on December 24, 1992. Petitioners have challenged the legality and validity of this order by filing this petition on December 28, 1993. Learned single Judge of this Court initially ordered to issue notice and directed respondents to maintain status quo as it existed on the date of filing of the petition. Later on petitioners prayed for amendment in the petition and challenged the constitutional validity of the provisions of Section 258 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act"). Hence, the petition has been placed before Division Bench. It may be noted that the Collector had passed order under purported exercise of powers under Section 258 of the Act. The petitioners also prayed for declaration to extend the term of lease for a period for which they have been kept out of possession of the respective shops. A prayer has also been made for direction that compensation at the rate of Rs. 5,000/- (Rupees five thousand) per month be ordered to be paid to each of the petitioners for the period during which they have been kept out of possession of the shops.
Facts in brief:
2. In the Municipal area, respondent No. 1 - Municipality had constructed about 16 shops. By resolutions Nos. 22 and 23 dated July 23, 1992 passed by the General Board of respondent No. 1 - Municipality it was resolved that shops Nos. 15 and 16 be given on lease for a period of ten years to the petitioners. Pursuant to these resolutions shop No. 15 was given to petitioner No. 2. Similarly, shop No. 16 was given to petitioner No. I. The rent or licence fee or occupation charges were fixed at Rs. 600 (Rupees six hundred) per month. An amount of Rs. 50,400/ -(Rupees fifty thousand four hundred) in each case was recovered from the petitioners as advance rent or licence fee or occupation charges for a period of seven years. Petitioner No. 1 paid Rs. 50,400/- on February, 22, 1992. Petitioner No. 2 paid the amount of Rs. 50,400/- on September, 23. 1992. Petitioner No. 1 was handed over possession of the shop on October 23, 1992, while petitioner No. 2 was handed over possession of the shop on September 23, 1992.
3. Some time after the resolutions were passed, and possession of the shop was handed over to the petitioners, the term of the elected body of the Municipality came to an end. Therefore, in exercise of the powers under Section 263A of the Act the State Government appointed Administrator. The Administrator felt that the resolutions passed by the General Board of the Municipality were not in accordance with law. Therefore, he made a report to the Collector by letter dated December 3, 1992, and requested for cancellation of the resolutions. Respondent No. 2 Collector in purported exercise of powers under Section 258 of the Act initially passed interim order dated December 3, 1992. In this order it is stated that the resolutions have been taken in revision for considering the propriety thereof. It is further stated that further implementation of the resolutions Nos. 22 and 23 dated July 23, 1992 was stayed.
4. The Collector passed the impugned order dated December 18/21, 1992. By this order the Collector held that due to both the resolutions there was financial loss to the public property of the Municipality. Therefore, both the resolutions were being cancelled. The Collector also directed that possession of the property in question be taken by the Municipality and the amount paid by the petitioners be refunded. The aforesaid order is passed inter alia on the ground that before granting lease for a period of tea years, sanction of the State Government was required to be taken as provided under Section 65(2) of the Act. In the opinion of the Collector the Municipality had not disposed of the property by fixing the market price and it was not disposed of by public auction. The Collector came to the conclusion that the action of the Municipality was not in public interest. In his opinion, the property should have been disposed of by public auction and the petitioners also may participate in the public auction. Pursuant to this order of the Collector, possession of both the shops has been taken over by the Municipality on December 24, 1992. By interim order dated November 3, 1993 this Court directed the respondent Municipality to restore the possession of the shops to the petitioners. Accordingly, during the pendency of the petition, possession of the shops has been restored to the petitioners.
5. Learned Counsel for the petitioners have submitted that if the petition could be disposed of on the ground of challenge to the legality and validity of the impugned order passed by the Collector, they would not like to press the challenge to the constitutional validity of Section 258 of the Act. In view of this submission we do not examine the question with regard to the constitutional validity of the provisions of Section 258 of the Act.
6. It is submitted that when the Administrator of the Municipality made report to the Collector on December 3, 1992, action taken by the Municipality was already completed. There remained nothing to be done pursuant to the impugned resolutions. By the impugned resolutions, General Board of the Municipality had resolved to lease out the shops in question to respective petitioners for a period of ten years. It was resolved to recover rent or occupation charges for a period of seven years in advance. The resolution also mentioned certain terms and conditions on which the shops were to be leased out. Pursuant to the resolutions the petitioners made payment of Rs. 50,400/- each. Petitioner No. 1 paid this, amount on October 22, 1992 and petitioner No. 2 paid this amount on September 23, 1992. This amount has been accepted by the respondent Municipality. The Municipality handed over possession of the shop to petitioner No. 1 on October 23, 1992, while petitioner No. 2 has been handed over possession of the shop on September 23, 1992. Thus no further action was required to be taken pursuant to the resolutions passed by the Municipality. Therefore, it is submitted that the Collector had no jurisdiction to invoke the powers under Section 258 of the Act.
7. Section 258 of the Act reads as follows:
Section 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 or 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 along with 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 is submitted that having regard to the undisputed facts the provisions of Section 258 of the Act could not have been invoked by the Municipality and by the Collector.
8. Resolutions Nos. 22 and 23 were passed on July 23, 1992. The Administrator wrote letter dated December 3, 1992 to the Collector making request for cancelling the resolution. When this request was made, period of more than four months had already passed from the date of passing of the resolution. Pursuant to the resolution, amount of advance lease of Rs. 50,400/ - was accepted by the Municipality and the petitioners were put in possession of the shops. Thus, there remained nothing to be done pursuant to the resolution. Therefore, we accept the submission made on behalf of the petitioners that in facts of the case provisions of Section 258 of the Act could not have been invoked.
9. Even if the resolutions were found to be unlawful, the Municipality itself could modify or cancel this resolution. It may be noted that the restriction placed by the provisions of Section 51(12) of the Act would also not have been in operation after a period of three months from the date of passing of the resolutions. The resolutions were dated July 23, 1992 while the Administrator made report on December 3, 1992, i.e., after a period of three months. Thus, the restriction for modification and/ or cancellation of resolution placed in Section 51(12) applied for a period of three months. This period of three months was over when the request was made by the Administrator. It may be noted that as provided under Sub-section (3) of Section 263A all the powers and duties of the Municipality could be exercised and performed by such officer of the State Government who may have been appointed under Section 263A of the Act. In the instant case the Administrator could exercise the powers and duties of the Municipality as provided under Sub-section (3) of Section 263A. Therefore, it was for the Administrator himself to decide as to whether resolution dated July 23, 1992 passed by the General Board of the Municipality be cancelled or not. However, the Administrator decided to make reference to the Collector for taking action under Section 258 of the Act. There was no need for the Administrator to make such reference. But simply because the Administrator committed mistake, the Collector could not have assumed jurisdiction to consider the legality and validity of the resolution under Section 258 of the Act inasmuch as provisions of Section 258 of the Act were not attracted to the facts and circumstances of the case.
10. It is submitted that neither Sec, 258 of the Act, nor any other provision of the Act provides that possession of the property once handed over to a party could be recovered by the Municipality by resorting to direct action. In the instant case, possession of the shops in question was handed over to the petitioners by the Municipality pursuant to resolution passed by it. The Municipality had accepted advance rent or occupation charges for a period of seven years from the petitioners. The period of lease, as stated in the resolution, was of ten years. Therefore, in such a situation even if the Municipality thought that the resolutions passed by it were required to be modified or cancelled, it may modify or cancel the resolution. But after modification or cancellation of the resolution the Municipality could not have recovered possession of the shops without following the proper, procedure laid down under the relevant law. It is submitted that at the most the Municipality, after cancelling the resolution could have taken appropriate action in accordance with law for recovering possession of the shops in question. But no direct action could be taken by the Municipality and the petitioners could not have been evicted from the shops directly. There is much substance in this argument and we accept the same. We may farther observe that even if it is assumed that Collector could, in exercise of his power under Section 258 of the Act, consider the legality and validity of the resolution passed by the Municipality, he should have stopped at the stage of making declaration regarding legality and validity of the resolution. He could not have directed to recover possession of the shops from the petitioners. Section 258 of the Act does not confer power on the Collector to direct Municipalities to recover possession of immovable property from third parties. Thus even if it is assumed that the Collector could invoke powers under Section 258 of the Act, he has acted in excess of his power when he directed the Municipality to recover possession of the shops from the petitioners.
11. Learned Counsel for the petitioners has relied on the decision of the Supreme Court in the case of Kannauj Municipality v. State of U.P., . In that case the executive officer of the Municipal Board had dismissed 74 sweepers of the Municipality. The Governor of U.P., in exercise of the powers conferred upon him under Section 34(1B) of the U.P. Municipalities Act, 1916 prohibited execution of that order and also prohibited the Municipality doing any act under that order or to continue to do it. The order of the Governor was challenged by the Municipality before the Allahabad High Court. The High Court rejected the petition. The Municipality carried the matter in appeal before the Supreme Court. The Hon'ble Supreme Court considered the provisions of Section 34(1B) of the U.P. Municipalities Act. (This provision is in part materia with the provisions of Section 258 of the Act, as observed by Division Bench of this Court in the case of H.H. Parmar v. Collector, Rajkot, reported in 1979 (2) XX (2) GLR 97. After referring to the aforesaid provision the Supreme Court has held as follows:
In our opinion, that sub-section does not clothe the State Government with such a power. The resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set aside- under this section. All that could be done under it is to prohibit the execution or further execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. Where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its Officer, as in the present case, there is really nothing to prohibit.
12. The aforesaid decision of the Hon'ble Supreme Court has been followed by Division Bench of this Court in the case of H.H. Parmar v. Collector, Rajkot, reported in 1979 (2) XX (2) GLR 97. As observed by the Division Bench, the Hon'ble Supreme Court has laid down that where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board, or of its officer, there is really nothing which could be prohibited. The Division Bench has compared the provisions of Sub-section (1) of Section 258 of the Act and the material part of Section 34(1B) of the U.P. Act. The Division Bench has come to the conclusion that both the provisions were part materia. The Division Bench further held that the principle which has been laid down by the Hon'ble Supreme Court in that decision would govern the interpretation of Section 258(1) of the Act also.
13. The Division Bench also referred to an earlier decision of learned single Judge of this Court in the case of Shree Dasa Sorathiya Vanik Gnati v. State of Gujarat, reported in (1978) XIX GLR 1000. Therein the learned single Judge had equated the expression 'work' occurring in Section 258(1) of the Act with the expression 'thing'. The Division Bench held that this was an error. The Division Bench observed as follows:
The expression "thing" may connote an action which is not a work or a public work, but the expression 'work' is incapable of connoting "an action' - a mere action. Therefore, the analysis of Section 258(1) which the learned single Judge has made in that decision suffers from an error - in our opinion a fatal error -inasmuch as he has read the expression 'thing in place of expression 'work'.
14. In the case of H.H. Parmar (supra) the question was with regard to the legality and validity of resolution passed by the Municipality appointing Chief Officer. After a period of about thirteen months of the appointment of the Chief Officer and after be took charge and functioned for this much period, the Collector had exercised powers under Section 258 of the Act and set aside the resolution. The Division Bench, after referring to the aforesaid Supreme Court decision observed as follows:
In our opinion, therefore, since under the resolution in question the petitioner had already taken charge and functioned for a period of about 13 months, there was nothing which remained to be done under the resolution and which could be suspended or stayed by the Collector. The Collector, therefore, had no authority or jurisdiction to make the impugned order. We may point out at this stage that if the Collector had issued to the petitioner notice to show cause, he could have certainly stated to the Collector that since the resolution in question was fully implemented and since noting remained to be implemented thereunder, he had no authority or jurisdiction to make the impugned order. In our opinion, therefore, the impugned order suffers from twofold legal infirmity and is liable to be quashed.
15. In view of the decision in the case of H.H. Parmar (supra) it becomes evident that the later part of Sub-section (1) of Section 258 containing the expression "and where the execution of any work in pursuance of the order or 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" would not be attracted. As held by the Division Bench, the expression "commenced or completed" is more in harmony with the word "work" meaning a public work such as construction of a building, bridge, road or digging the soil for the purpose of laying the drainage, and is not in harmony with the word "action" meaning any action taken under an unlawful resolution. The word "work" does not command such a wide amplitude as to embrace within its sweep all actions and orders taken in execution of an order. Thus, even the later part of Sub-section (1) of Section 258 of the Act does not confer power on Collector to cancel lease agreement and direct the Municipality to take possession from the third parties. Such orders would in no case be binding to the third parties, inasmuch as the Collector has no jurisdiction under this section to decide the question of possession and direct restoration of possession to the Municipality.
16. In view of the settled legal position as stated above, the impugned order passed by the Collector in purported exercise of powers under Section 258 of the Act cannot be sustained. As indicated hereinabove, everything that was required to be done pursuant to the resolution passed by the Municipality was done. Nothing further was required to be done by the Municipality. Therefore, there was nothing to be stayed or suspended. Hence the Collector could not have exercised powers under Section 258 of the Act. On this ground also the order passed by the Collector cannot be sustained and the same is required to be quashed and set aside.
17. As far as certain observations made by the Collector in the order are concerned, we do not discuss the merits of the same. This is so because either party may wish to take further action to assert their claim. Therefore, we do not express any opinion about the reasons which weighed with the Collector in passing the order. As indicated hereinabove, the order of the Collector cannot be sustained because the Collector had no jurisdiction to exercise powers under Section 258 of the Act.
18. This brings us to the prayer made by the petitioners for payment of compensation at the rate of Rs. 5000/- (Five thousand) per month for the period for which they have been kept out of possession. As far as the claim of compensation is concerned, determination of this Question would require recording of evidence and examination of detailed facts.
19. In our opinion, this question cannot be decided in a petition under Article 226 of the Constitution of India. Therefore, we refrain from deciding this question. If at all, the petitioners chose to assert their claim, they may take appropriate action in the Court of proper forum.
20. The petitioners have also prayed for extension of the period of lease, for the period for which they have been kept out of possession. Both the petitioners have been kept out of possession of the shops from December 24, 1992 to November 5, 1993, i.e., for a period of ten months and eleven days. As held by us, the petitioners have been kept out of possession of the shops in question unlawfully. Neither the Collector nor the Municipality could have taken direct action and evicted the petitioners from the shops occupied by them. In facts of the case it would be just and proper if the prayer for extension of the lease for the aforesaid period is granted.
21. In the result the petition is allowed. The impugned order dated December 18/21, 1992 passed by respondent No. 2-Collector, Amreli, is quashed and set aside. The period for which the shops in question have been leased to the petitioners shall stand extended for a period of ten months and eleven days on the same terms and conditions. Rule made absolute accordingly with no order as to costs.