Bombay High Court
Pandurang S/O Krushanji Tonge vs The State Of Maharashtra Thr. Secretary ... on 19 December, 2018
Author: S.B. Shukre
Bench: S.B. Shukre
wp.2587.16.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2587 OF 2016
Petitioner : Pandurang s/o Krushnaji Tonge,
Aged about 58 years, Occupation - Business,
Resident of Wani, Tahsil Wani,
District Yavatmal.
-- Versus --
Respondents : 1] The State of Maharashtra,
through it's Secretary,
Urban Development Department,
Mantralaya, Mumbai- 32.
2] The Hon'ble State Minister,
Urban Development Department,
Mantralaya, Mumbai- 32.
3] The Collector, Yavatmal.
4] The Municipal Council, Wani,
District Yeotmal, through its Chief Officer.
5] Gurumukh s/o Khatumal Keshwarni,
Aged about 40 years, Occu : Business,
Resident of Wani, Tahsil Wani,
District Yavatmal.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri M.P. Khajanchi, Advocate for the Petitioner.
Shri B.M. Lonare, A.G.P. for Respondent Nos.1 to 3.
Shri M.I. Dhatrak, Advocate for Respondent No.4.
Shri M.G. Bhangde, Senior Advocate for Respondent No.5.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : S.B. SHUKRE, J.
RESERVED ON : 30th OCTOBERR, 2018.
PRONOUNCED ON : 19th DECEMBER, 2018.
ORAL JUDGMENT :-
::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 :::
wp.2587.16.jud 2
Rule. Rule made returnable forthwith. Heard finally by consent.
02] This petition questions the legality and correctness of the order dated 09/12/2015 passed by respondent No.2 staying the effect and operation of the orders passed by the Collector on 06/11/2014 and 18/05/2015 and directing respondent No.4, the Municipal Council, Wani, District Yavatmal to assess the valuation of 160 shop blocks situated at Gandhi Chowk Bazar, Wani, revise the rents on that basis and submit the proposal to the State for granting on lease the shops blocks for a period of 30 years. 03] Briefly stated, the facts of the case, are as under :
i. The petitioner claims that being a permanent resident of Wani as well as ex-councilor of respondent No.4, Municipal Council, has a concern about the way the property of Municipal Council, Wani, the respondent No.4 is being utilized. He submits that the property involved in the petition comprises 160 shop blocks existing on parcels of lands bearing Sheet Nos.19-A, 19- B and 19-C, which are owned by respondent No.4. These ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 3 lands along with 160 shop blocks, he further submits, were granted to respondent No.4 by the then Madhya Pradesh Government in the year 1956 on yearly premium of Rs.716/-. He submits that respondent No.4 reserved 41 blocks for being occupied by the migrants and refugees and remaining 119 shop blocks for being occupied by other persons. According to his information, in the year 1956 itself, 41 shop blocks were allotted by the Municipal Council to the refugees on monthly rent of Rs.30/- and the remaining blocks were allotted by respondent No.4 to other persons on different monthly rents of Rs.300/-, Rs.200/- and Rs.100/-. Initially, according to the petitioner, there were no such acts on the part of the original allottees as would give rise to consider their occupations as violating any law. But, he further submits that gradually various illegalities in relation to occupation of these shop blocks started to creep in. He submits that many of the original allottees illegally transfered the shop blocks to some other persons without obtaining consent of respondent No.4 and some of the new occupants made unauthorized constructions on the first floor without permission of the ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 4 respondent No.4. He also submits that some of the occupants changed the user of the shop blocks in an unauthorized manner. He further submits that some of the allottees or the occupants became defaulters in payment of rents to respondent No.4.
ii. The petitioner with a view to remove these illegalities filed a writ petition being Writ Petition No.1614 of 2004 before this Court seeking such reliefs as issuance of appropriate direction to the respondents in that petition to get the shop blocks vacated and other incidental reliefs. In this petition, the petitioner made the State of Maharashtra; Director of Municipal Administration, Mumbai; the Divisional Commissioner and Regional Director, Municipal Administration, Amravati; the Collector Yavatmal; the Chief Officer, Municipal Council, Wani, and the President, Municipal Council, Wani as respondents. The Division Bench of this Court, by the order passed on 26/03/2014, disposed of the petition giving some directions, as it found that no representation to respondent Nos.3 & 4 i.e. the Divisional Commissioner and Regional Director, ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 5 Municipal Administration, Amravati, and the Collector, Yavatmal was made by the petitioner. It, therefore, directed the petitioner to prefer suitable representation seeking redressal of his grievances within a period of two weeks and it further directed that if the representation was moved, the respondent Nos.3 & 4 would consider it in accordance with law within a further period of six weeks. It also gave liberty to the petitioner to move the Division Bench again if the grievance was not redressed thereafter.
iii. It appears that, accordingly, a representation was made by the petitioner to the Collector, Yavatmal. The Collector, Yavatmal called for the report of the Chief Officer, Municipal Council, Wani. The Chief Officer submitted two reports, dated 08/05/2014 and 07/06/2014. The Chief Officer found substance in almost all the grievances of the petitioner and, therefore, expressed an opinion that it would be advisable that fresh assessment of the value of 160 shop blocks was got done from the Town Planning Department and thereafter, they were allotted afresh by public auction ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 6 so that, the income of respondent No.4 would increase. The Collector, Yavatmal, who is respondent No.3 in this petition, accepted the reports and by the order passed on 06/11/2014 decided the revision. He directed that all the 160 shop blocks be got vacated from the present occupants, their valuation be made by the Town Planning Department and thereafter they be reallotted through public auction.
iv. While passing this order, respondent No.3 did not issue any notice to the persons in occupation of the shop blocks. At least two of the occupants of the shop blocks viz. Nandkishor Khatri and Subhash Gilda felt aggrieved by the order of the Collector dated 06/11/2014 and, therefore, they moved a review petition under Section 320 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 ("the Act of 1965" for short) before respondent No.3. Apart from taking the ground of denial of an opportunity of hearing to them, these petitioners also questioned the correctness of the reports of the Chief Officer on the facts stated therein. It was their contention that their ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 7 entering into the shop blocks was based upon valid auction of the Municipal Council, Wani i.e. respondent No.4 in this petition, and that they were not indulging in any illegality and, therefore, without giving of any notice to them for vacating the shop blocks in accordance with law, no order could have been passed by the Collector affecting their legal rights. After hearing these petitioners, however, the Collector dismissed the review petition on 18/05/2015 holding that as these two petitioners were not parties before the High Court in Writ Petition No.1614 of 2014, it was not necessary for him to issue any notice to them.
v. Being aggrieved by this order, the aforestated two review petitioners, Nandkishor Khatri and Subhash Gilda, filed a writ petition being Writ Petition No.3159 of 2015. In this petition, the State of Maharashtra, through the Collector; the Chief Officer, Municipal Council and the present petitioner were made respondent Nos.1 to 3 respectively. These review petitioners, however, after some time prayed to this Court to grant them leave to withdraw the petition with liberty to avail of alternate ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 8 remedy. This Court by the order passed on 29/02/2016, granted leave to withdraw the petition with liberty as prayed for and disposed of the petition. After this development, it appears that nothing significant took place for some time.
vi. The petitioner, by his communication dated 04/04/2016 addressed to respondent No.4, urged that the shop blocks be got vacated and reallotted through public auction in terms of the orders dated 06/11/2014 and 18/05/2015 passed by respondent No.3. The respondent No.4, however, by his reply dated 9/21 th April, 2016 informed the petitioner that the Hon'ble Minister of State for Urban Development, State of Maharashtra (Respondent No.2) has granted stay to the effect and operation of the orders of respondent No.3, dated 06/11/2014 and 18/05/2015 and, therefore, these orders could not be implemented till vacating of the stay. Subsequently, the petitioner was also informed of the order passed by respondent No.2 on 09/12/2015 vide communication of respondent No.4, dated 23/12/2015. The order passed by respondent No.2 was to the effect ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 9 that subject to the decision of the Court, the shop blocks be got assessed for their value from the Town Planning Department and thereafter the rent be levied and till that time, the orders of respondent No.3 would remain suspended. It was also directed that a proposal for allotting these shop blocks for a period of 30 years be prepared in accordance with law and forwarded to the State Government. Being aggrieved by this order, dated 09/12/2015, the petitioner has approached this Court in the present petition.
04] I have heard Shri Khajanchi, learned Counsel for the petitioner, Shri Lonare, learned Assistant Government Pleader for respondent Nos.1 to 3, Shri Dhatrak, learned Counsel for respondent No.4 and Shri Bhangde, learned Senior Advocate for respondent No.5. I have gone through the paper-book of the petition and also the impugned order.
05] It is the submission of the learned Counsel for the petitioner that the impugned order is illegal and has been passed without following the principles of natural justice, as the petitioner was not given any notice before passing the order. It is further ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 10 submitted that the shop blocks stood vested in the Municipal Council and, therefore, were the property of the Municipal Council and as such, the Municipal Council had a right in terms of Section 92(3) of the Act of 1965 to lease the property for a period not exceeding three years which could be renewed by it for a total period not exceeding 9 years and this right has now been violated by the order passed by respondent No.2 and that too without hearing the Municipal Council. He further submits that the issue involved in this petition relates to the loss of income of respondent No.4 and this has happened because of various illegalities committed by the occupants of the shop blocks and which have also been found to be generally true by the Chief Officer of the Municipal Council. But, it is further submitted, respondent No.2 has ignored all of them. He also submits that the impugned order was an order which invoked the revisional jurisdiction of the State under Section 318 of the Act of 1965, but, there is no application of mind to the record of the case and, therefore, the order suffers from serious illegality.
06] Learned A.G.P. for respondent Nos. 1 to 3 submits that there is no prejudice caused to the petitioner as ultimately by the impugned order, a fresh proposal for allotting the shop blocks for a ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 11 period of 30 years in accordance with law has been directed to be submitted by respondent No.4. He also submits that the revision application has been finally disposed of by respondent No.2. The learned Counsel for respondent No.4 submits that an appropriate order be passed in the matter.
07] Learned Senior Advocate for respondent No.5 submits that there is no prejudice nor any legal injury caused to the petitioner in the present case and this is not a public interest litigation and, therefore, there is no right in the petitioner to be heard in the matter. He submits that the order of respondent No.3 was patently illegal as the respondent No.3 did not grant any opportunity of hearing to the affected occupants of the shop blocks and now respondent No.2 by the impugned order has only removed these illegalities and injustice caused by it. He further submits that the impugned order only directed respondent No.4 to act in a particular way and if respondent No.4 is aggrieved by it, it is for it to challenge the order passed by respondent No.2 and not for the present petitioner.
08] Learned Senior Advocate further submits that on facts also, the occupants of the shop blocks have a very strong case on ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 12 merits. He submits that the alleged illegalities noticed in the reports of the Chief Officer do not exist, that the occupants of the shop blocks are regular in payment of rent, that their possession is legal and as such no order could have been passed against them by respondent No.3 without hearing them. He submits that in the present case, there is no resolution or order passed by respondent No.4 or any action taken by the Municipal Council and, therefore, there being no injury to the public interest, the Collector could not have passed the orders directing vacating of the shop blocks and their re-auction by invoking his power under Section 308 of the Act of 1965. He also submits that so called right referable to Section 92(3) of the Act of 1965, is never available to respondent No.4, as basically it is the State which is the owner of the property on which the shop blocks exist. He also submits that in any case, if the petitioner felt aggrieved by the impugned order, he must approach the State first and satisfy it on his locus and then seek vacating or modification of the impugned order.
09] It is the contention of the learned Counsel for the petitioner that it was only after the High Court gave liberty to the petitioner to move respondent Nos.3 & 4 that an application was made to respondent No.3 by the petitioner and the respondent ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 13 No.3, after satisfying himself about the various illegalities having been committed by the occupants and in relation to the shop blocks they were occupying, passed the order dated 06/11/2014 which was also reiterated by him when he rejected the review application on 18/05/2015. He further submits such being the context of the orders passed by respondent No.3, the respondent No.2 ought to have stayed away from this matter. After all, he further submits the orders passed by the Collector were meant for removing illegalities and increasing the income of respondent No.4.
10] At this stage, I do not think that it is necessary for this Court to consider as to what could be the purpose of the orders dated 06/11/2014 and 18/05/2015 passed by respondent No.3 or to be precise as to whether they were meant for increasing the income of respondent No.4 or otherwise. What is essential to see at it's minimum here is the effect these orders have had on the fate of the occupants of the shop blocks. These orders, it is seen from them, were passed without granting any opportunity of hearing to the affected occupants of the shop blocks. After all, an order which directs an occupant of any shop block to vacate the same or which directs the Municipal Council like respondent No.4 to get it vacated ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 14 from the occupant of the shop block, who says that he has been inducted therein legally, is an order which adversely affects civil rights of such a person and this is what would entitle him to a right of hearing before any adverse action is directed to be taken. The Division Bench of this Court, in it's order dated 26/03/2014, had not said that the procedure of law be relaxed or be not followed, rather, this Court directed in the words, "..................If such representation is moved, respondent no.3 & 4 shall consider the same in accordance with law, within a further period of six weeks". Therefore, the argument that respondent No.2 ought to have stayed away from these orders does not appeal to reason, though it is an issue to be considered here as to what procedure should have been followed by respondent No.2 before passing the impugned order, which I will deal with in later part of this judgment. 11] There is an argument submitted by the learned Senior Advocate on behalf of respondent No.5 that the Collector never had any jurisdiction to decide the application or the representation made to him by the petitioner and whatever jurisdiction he would have had in the matter was referable only to the provision of Section 308 of the Act of 1965 and there being no resolution/order passed or action taken on behalf of the Municipal Council i.e. ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 15 respondent No.4, the Collector i.e. respondent No.3 was never conferred with the jurisdiction. With due respect, I would differ with the learned Senior Advocate. Here, the jurisdiction has been conferred by a judicial act, the order dated 26/03/2014 passed by the Division Bench of this Court, upon respondent No.3 and this order having attained it's finality, now could not be questioned by any party and that would mean that respondent No.3 was under a legal duty to comply with the order. Therefore, any reference to the provisions of Section 308 of the Act of 1965 would not be of any assistance. The jurisdiction of the Collector-respondent No.3, therefore, cannot be doubted.
12] Now, I would deal with the submissions of the petitioner regarding grant of opportunity of hearing and application of mind to the record of the case, which relate to question of prejudice and procedural errors. Of course, it is the contention of learned Senior Advocate for respondent No.5 that the present dispute being not within the arena of public interest litigation and there being neither prejudice nor legal injury caused to the petitioner, the doctrine of natural justice cannot be invoked by the petitioner. 13] As regards the submission about the absence of legal injury and absence of public interest in the present dispute, I find ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 16 that this is not the proposition which has found favour with the Division Bench of this Court when it examined the present dispute and passed the order dated 26/03/2014 in Writ Petition No.1614 of 2014. This order, rather, gives an impression that the Division Bench of this Court indeed found involvement of public interest and legal injury, with the petitioner being a citizen of Wani having interest in best of health of Municipal Council and it's affairs, and that was the reason why it noted that as the petitioner had not made any representation to the Collector, Yavatmal and Municipal Council, Wani pointing out the alleged illegalities, it directed the petitioner to prefer a suitable representation in that regard within a stipulated period of time. The relevant portion of this order is reproduced as follows :
"We find that petitioner has not made any representation to respondent nos.3 & 4 pointing out the alleged illegalities. We, therefore, direct petitioner to prefer suitable representation in this respect within a period of two weeks from today. If such representation is moved, respondent no.3 & 4 shall consider the same in accordance with law, within a further period of six weeks."
14] Thus, the Division Bench of this Court has accepted the fact that the petitioner has an interest in the lis for the redressal of ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 17 which he could approach respondent No.3 with suitable representation and it further found that if the representation was made, it must be decided in accordance with law within another stipulated period of time.
15] Once it is found that the petitioner is a person having an interest in the present dispute, in any application or representation made to the higher authority like respondent No.2 against the order passed by respondent No.3, the petitioner would get a right of hearing and this would be all the more so if the order under challenge and which is stayed like the order dated 06/11/2014 involved here, has been passed on a representation made by a person claiming injury. Such an order cannot be finally stayed or interfered with without hearing a person who was also a party to the order, and if it is done, it would prejudicially affect that party. 16] In the present case, by the order passed on 09/12/2015, the Hon'ble Minister i.e. respondent No.2 has interfered with orders of respondent No.3, dated 06/11/2014 and 18/05/2015 and directed the Municipal Council to get the shop blocks reassessed and then fix the rent afresh. It further directs respondent No.4 to submit it's proposal to the Government for allotting the shop blocks for a ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 18 period of 30 years by following the procedure of law. It also directs that till that time, the said orders of respondent No.3 shall be stayed. As a matter of record, this order was passed as a result of challenge made to the orders passed by respondent No.3 on 06/11/2014 and 18/05/2015, which orders, I would say at the cost of repetition, were based upon the representation made by the petitioner and so it was well known to respondent No.2 that the petitioner was already a party and so an essential party to the present dispute and this knowledge necessitated that respondent No.2 granted sufficient opportunity of hearing by directing the respondent No.5 to add the petitioner as a party-respondent and then issuing show cause notice to the petitioner. But, this was admittedly not done and now the position is that the whole proceedings have been finally disposed of by respondent No.2. Of course, this has been brought on record by filing a pursis to this effect by the learned Assistant Government Pleader when this Court inquired with him as to whether or not any proceeding is pending before respondent No.2 and the query was made with a view to explore the possibility of giving an appropriate direction regarding grant of hearing to the petitioner. But, that possibility is now over with the proceedings having been already disposed of. ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 19 17] These proceedings, it appears, have been initiated by respondent No.2 by virtue of his revisional power under Section 318 of the Act of 1965 exercised on an application filed by respondent No.5. The provision of Section 318 is very clear regarding the need for calling for examining the record of a case in which the order under challenge is passed. In the present case, it is seen from the impugned order that no record of the proceedings was called and, therefore, there was no question of it's being examined by respondent No.2. Of course, it is the submission of the learned Senior Advocate for respondent No.5 that the impugned direction having been given to respondent No.4, the Municipal Council, Wani and respondent No.4 having not raised any grievance in the matter, the petitioner cannot be heard now. I beg to differ with him. When the petitioner was a party before the proceedings conducted by respondent No.3 and when the revisional jurisdiction was exercised in relation to these proceedings, it is doubtful if the petitioner could be termed as a stranger to the dispute having no locus standi in the present case or at least this issue would have to be appropriately dealt with by respondent No.2 which he has not done earlier. But, the fact remains that no record was called and so the impugned order does not satisfy the procedural requirement of Section 318. ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 20 18] Thus, it would be clear that the impugned order has been passed without granting of any opportunity of hearing to the petitioner and without following procedure prescribed in Section 318 and as such the impugned order deserves to be quashed and set aside.
19] The learned Counsel for the petitioner has placed his reliance upon the following cases.
i. Aggarwal & Modi Enterprises (P) Ltd. & another vs. New Delhi Municipal Council - (2007) 8 SCC 75.
ii. Pradip Vasantrao Gaurkhede & others vs. Divisional Commissioner & Regional Director, Municipal Administration, Amravati & others - 2016(4) Mh.L.J. 859. iii. Saroj Screens Private Limited vs. Ghanshyam & others -
(2012) 11 SCC 434.
20] These cases lay down those principles of law which govern such subjects as disposal of the public property and limitations of revisional powers. These principles would have to be considered while deciding the lis between the parties on merits and, therefore, they would be useful only when the matter is argued before respondent No.2 on merits of the case. ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 21 21] Apart from what is said earlier, there are also issues raised by either of the rival parties like the non-consideration of the reports of the Chief Officer of respondent No.4, the applicability or non-applicability of Section 92(3) of the Act of 1965 to the present dispute, the locus of the petitioner, the question of augmenting the income of respondent No.4 and so on and so forth. All these questions would have to be properly addressed and answered by the revisional authority. These questions having not been addressed in any manner by the revisional authority would result in providing additional ground to enable me to find that the impugned order cannot be sustained in the eye of law.
22] In the result, I am inclined to allow the petition in terms of it's first prayer clause so that the matter could be remanded back to respondent No.2 for deciding it afresh in accordance with law.
I. The writ petition is allowed in terms of the prayer clause (1).
II. The impugned order is hereby quashed and set aside.
III. The matter is remanded back to respondent No.2 for being decided afresh in accordance with law after ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 ::: wp.2587.16.jud 22 joining the petitioner as a party-respondent and giving of due opportunity of hearing to the affected persons including the petitioner and respondent No.5 and till that time, it is directed that status quo shall be maintained as regards the shop blocks as of the date of the order.
IV. All questions are kept open.
V. It is made clear that respondent no.2 shall not be
influenced by the observations of this Court made hereinabove and shall decide the matter on it's own merits in accordance with law, within eight weeks from the date of appearance of parties before him. VI. Parties to appear before respondent No.2 on 16 th January, 2019.
VII. Rule is made absolute in the above terms with no order as to costs.
(S.B. Shukre, J.) *sandesh ::: Uploaded on - 19/12/2018 ::: Downloaded on - 25/12/2018 21:40:38 :::