2002 Supreme(Bom) 445

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Thakker C.K., C.J., Marlapalle B.H. Dabholkar N.V., JJ.
Sanjay Govind Sapkal others .... Petitioners.
Versus
Collector of Dhule others.... Respondents.
Writ Petition Nos. 1928 1973 of 1996 with W.P. Nos. 1993 1990 of 1996, decided on 13-3/3-5-2002.
Advocates appeared :
N.L. Choudhary, in W.P. No. 1928/1996, for petitioners Nos. 1 to 6 8 to 14, in W.P. No. 1973/1996, for petitioners in W.P. No. 1990/1996, for petitioner Nos. 1 2.
E.P. Sawant, G.P., in W.P. No. 1928/1996, for respondents Nos. 1 3, in W.P. No. 1973/1996, for respondents Nos. 1, 3 4 in W.P. No. 1990/1996, for respondents Nos. 1 3.
P.M. Shah, Sr.C. with Mukul Kulkarni, in W.P.Nos. 1928, 1973 1990/1996, for respondent No. 2.
Mrs. Sangeeta Dhumal, in W.P. No. 1990/1996, for petitioner No. 3.

Headnote:Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 308(1) - Collector suspended employment opportunity - Municipal Council called applications without any advertisement - Employment office approached directly - Whether it amounts to violation of natural justice - Held - Once it is decided that Collector acted validly using power under Section 308(1) matter should be brought to a full stop - No further pleas be raised. - However, the submission of the counsel for the Municipal Council is well-founded and deserves to be accepted that in the present proceedings, the question before the Collector related to the validity of an order passed by the Municipal Council, Dhule. If no action could have been taken by the Municipal Council or by the President and the action was unlawful, the same could have been suspended by the Collector and in exercise of power under Section 308(1) of the Act and by recording reasons, the Collector passed an order, which cannot be said to be without authority of law. If the case of employees was that the action taken by the Municipal Council was unlawful, it was open to them to take appropriate proceedings in accordance with law. But once it has been held that the Collector has power to press into service Section 308(1) of the Act and suspend an order or resolution of the Council, the matter must necessarily end there. Therefore, even those observations in Prakash Kutik are not sound an Court does not approve them.

       Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - Section 308(1) and 309 - Powers of Collector under Section 308(1) - Cancellation of various appointments - Contention that Collector has jurisdiction to do so - He can prevent implementation of any resolution - But a resolution if activated it cannot be stopped - Held - Collector can stay any action that is listed under Section 308 - It is also not correct to say that such power of Collector can be used only in emergency - It is a general power and can always be utilised. - In the instant case, the case of the Municipal Council was that the posts were not sanctioned posts; there was no necessity of making appointments of employees, there were surplus and excess employees, no prior permission of the competent authority was taken; no applications were invited; no names from Employment Exchange were called; the provisions of the Act, Rules and Regulations were not observed; and the President made the appointments of his kiths and kins in violation of statutory provisions. A prayer was, therefore, made to the Collector to exercise power under Section 308(1) of the Act. The Collector, by a speaking order and recording reasons, suspended the said order. Once it has been held that the Collector could exercise the power, the action cannot be held illegal on the ground of absence of authority. Declaration of law by different Division Benches of the Court in Chandrashekhar and Prakash Kutik reiterated in subsequent cases, did not lay down correct law on the interpretation of Section 308. Therefore, Court overrules all the decisions. Even if an order or resolution passed by the Municipal Council is implemented, executed or given effect to, power under Section 308(1) of the Act can be exercised and execution or implementation can be suspended by the Collector if the conditions laid down in the said provision are shown to be present. It was, therefore, obligatory on the Collector even if it is assumed that he has power to invoke sub-section (1) of Section 308 of the Act that he should comply with principles of natural justice and fair-play. In the instant case, no notice was issued; no explanation was sought and no reasonable opportunity of hearing was afforded to the petitioners before taking an action of suspension of the order and on that ground also, the order passed by the Collector was liable to be set-aside. For the submission, Prakash Kutik was relied upon. There, the Division Bench held, over and above the authority of the Collector, that while exercising statutory power, the Collector was obliged to comply with the principles of natural justice.