2009(5) ALL MR 425
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
J.H. BHATIA, J.
Shalikram Ganeshlal Jaiswal & Anr.Vs.The Director Municipal Council & The Additional Commissioner, Amravati
Writ Petition No.1981 of 2008
19th January, 2009
Petitioner Counsel: Shri. U. S. DASTANA
Respondent Counsel: Shri. G. B. LOHIYA
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act (1965), S.308 - Powers of Collector to suspend execution of orders and resolution of Council on certain grounds - Held, Collector has got powers under S.308 in respect of the orders which the Chief Officer may pass for and on behalf of Municipal Council - If the Collector is deprived of that power under S.308, the Chief Officer may pass several orders which may be contrary to provisions of law and may have the effect of causing injury or unrest to the public or may be against the public interest and still the Collector may become helpless - Such an interpretation would not be in the interest of the public administration and the proper functioning of the Municipal Council. (Para 4)
2. Petitioners held CL-III licence to run a country liquor shop in Ward No.2 Shukrawarpeth Washim. They moved an application to the respondent No.3 Chief Officer Municipal Council Washim to grant No Objection Certificate to shift liquor shop from Ward No.2 to Ward No.10. About that application public notice calling objections was issued and respondent No.3 raised certain objections. After hearing public objections respondent No.3 refused No Objection Certificate to the petitioners. Respondent No.4 was also holding licence to run country liquor shop in village Kalamba (Mahali) in Washim Taluka. He made an application to the respondent No.3 on 01.10.2003 seeking no objection certificate to shift his liquor shop from village Kalamba (Mahali) to Ward No.11 of Washim town. No Objection Certificate was granted. However later on because of the public objections respondent No. 4 sought No Objection Certificate to shift the shop to Ward No.10. That application was made on 16.04.2004 and on 10.05.2004 respondent No.3 granted No Objection Certificate in favour of respondent No.4. This order was challenged by the petitioners before the Collector. Initially the Collector passed an order holding that the matter is not covered under his power under Section 308 of Maharashtra Municipal Councils Nagar Panchayats & Industrial Townships Act, 1965 (in short 'Municipality Act'). This order was challenged before the High Court in Writ Petition and High Court remanded the matter back to the Collector. After remand the Collector heard the matter on 26.09.2007. He set aside the No Objection Certificate issued by the respondent No. 3 on the ground that he had not followed the proper procedure before granting No Objection Certificate. Order passed by the Collector was challenged by the respondent No.4 in Revision Petition No. 21/318/2007 and Additional Commissioner Amravati passed impugned order on 12.03.2008 setting aside the order of the Collector. According to him under Section 308 the Collector has power to suspend execution of orders and resolution of Council on certain grounds but in the present matter No Objection Certificate was granted by the Chief Officer and not by the Municipal Council and therefore the Collector cannot interfere under Section 308. That order is challenged before this Court in the present petition.
"308. Powers to suspend execution of orders and resolution of Council on certain grounds:-
1) If, in the opinion of the Collector, the execution of any order or resolution of a Council, or the doing of anything which is about to be done or is being done by or on behalf of a Council, is causing or is likely to cause injury or annoyance to the public or is against public interest 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.
2) When the Collector makes any order under his signature, he shall forward to the Council affected thereby a copy of the order, indicating therein the reasons for making it and also submit a report to the Director, along with a copy of such order.
3) Within thirty days from the receipt of such order of the Collector, the Council shall, if it so desires, forward a statement to the Director indicating therein why the order of the Collector should be rescinded, revised or modified. If no such statement is received by the Director within time, the Director shall presume that the Council has no objection if the order of the Collector is confirmed.
4) On receipt of such report from the Collector and the Council's statement referred to in sub-section (3), if any, the Director may[within a period of six months, from the receipt of such report or within such period beyond six months as may, on the request of the Director, be extended by the State Government] 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 modifications :
Provided that, the Director shall take into account the statement of a Council, if received, before such an order is made by him."
As per the observations of the Collector, Chief Officer exercised the powers of granting No Objection Certificate as representative of the Municipal Council and therefore it should be deemed to be an order passed by the Municipal Council and therefore it is subject to powers of the Collector under Section 308(1) of the Municipality Act. On the other hand the Commissioner held that the Municipal Council has to pass an order by passing a resolution and no such resolution has been passed in the present matter and therefore it is not the order of the Municipal Council and No Objection Certificate has also been granted only by Chief Officer and therefore the order cannot be challenged under Section 308 of the Municipality Act.
4. Learned counsel for the petitioner pointed out that under Rule 25(d)(iii) of the Maharashtra Country Liquor Rules framed under Bombay Prohibition Act the No Objection Certificate for shifting a shop in the municipal area can be granted by the Municipal Council. It does not speak about the powers of the Chief Officer of the Municipal Council to grant No Objection Certificate. In view of this it needs to be considered whether the Chief Officer could grant No Objection Certificate without any order or resolution passed by the Municipal Council. If as a head of the administration and representative of Municipal Council he could pass such order, the order will have to be deemed to be an order of Municipal Council and in that case such order shall be subject to the power of Collector under Section 308 of Municipality Act. On the other hand, if the Chief Officer cannot exercise the powers of the Municipal Council without a resolution from Municipal Council, then the order passed by him granting NOC to the respondent No.4 without such resolution or order from the Municipal Council is without jurisdiction. This aspect has not been considered by the Additional Commissioner. If the order is without jurisdiction the Collector could certainly set aside the order under Section 308 because that order could be issued only under the powers of the Municipal Council in view of Rule 25(d)(iii). The Additional Commissioner set aside the order by taking very narrow view of the provisions of Section 308(1) of the Municipality Act. In my considered opinion the Collector has got powers under Section 308 in respect of the orders which the Chief Officer may pass for and on behalf of the Municipal Council. If the Collector is deprived of that power under Section 308 the Chief Officer may pass several orders which may be contrary to the provisions of law and may have the effect of causing injury or unrest to the public or may be against the public interest or may be against breach of peace and still the Collector may become helpless. In my considered opinion such an interpretation would not be in the interest of the public administration and the proper functioning of the Municipal Council.
5. In view of the above circumstances the order passed by the Additional Commissioner is liable to be set aside and at the same time I find that because the Additional Commissioner had not considered the matter on merits but only on the technical ground as stated above, the revision should be remanded back to the Additional Commissioner for deciding the same afresh after hearing the concerned parties.
6. For the aforesaid reasons Writ Petition is allowed. Impugned order passed by the Additional Commissioner is hereby set aside. Revision Petition No.21/318/2007 is hereby remanded back to the Additional Commissioner Amravati for hearing the parties and to decide the same on merits in view of the observations made above.
Parties shall appear before the Additional Commissioner on 02.02.2009 and the Commissioner shall fix the date for final hearing. He shall finally dispose of the matter by the end of March, 2009.
The respondent No.4 claims that he had opened his shop in Ward No.10 in view of the interim relief granted by this Court pending the revision before the Commissioner. That order will continue till the decision of the revision petition by the Additional Commissioner.
Rule made absolute accordingly.
Parties shall act upon the authenticated copy of the order.