1993 Supreme(Guj) 468

Gujarat High Court
Judgename :A.P.RAVANI, D.G.Karia
RAGHAVBHAI ARJANBHAI - Appellant
Versus
AMRELI NAGARPALIKA - Respondent
S.C.A.9567 of l992
Decided On : 12/13/1993

Headnote:Gujarat Municipalities Act, 1963 - Secs. 258 - Power of Collector - Exercise of petitioners were put in possession of shops in pursuant to Resolution No. 22 and 23 dated 22/23 July 1992 passed by respondent No. 1 Amerli Municipality - When request was made by administrator for cancelling resolutions vide letter no. Dec. 3, 1992 to Collector four months had passed to resolution and petitioner had deposited the advance lease amount and taken possession of shops - Nothing remained to be done in pursuant to resolutions - Collector could not have invoked provisions under Sec. 258.

       Resolutions No. 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.

       [Para 8]

       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.

       [Para 16]

       Gujarat Municipalities Act, 1963 - Secs. 51(12), 51(13), 258, 263A & 263A(3) - Unlawful resolutions by municipalities - Remedy thereof - Restriction placed under Sec. 51(12) were not in operation after three months and Administrator himself was competent to cancel impugned resolutions under Sub-sec. (3) of Sec. 263A - However reference by Administrator to Collector in the matter could not be held to have vested jurisdiction in Collector to consider legality & validity of resolution in exercise of his powers under S. 258 of the Act.

       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 (13) 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.

       [Para 9]

       Gujarat Municipalities Act, 1963 - S. 258 - Power under - Scope of - Provision does not provide that possession of the property once handed over to a party could be recovered by Municipality by resorting to direct action - Assuming that Collector could invoke powers under the provision he should stop at the stage of making declaration regarding legality & validity of resolution - In the case Collector while directing the Municipality to recover possession of shops from petitioner exceeded his powers.

       Neither section 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 petitioner 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. 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.

       [Para 10]

       Compensation - Claim for the period petitioners kept out of possession of disputed shops - Held, question would require recording of evidence & examination of detailed facts - Matter could not be decided in limited jurisdiction of High Court under Art 226 of Constitution.

       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. 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 fourm.

       [Para 18]

       Relief - Prayer for extention of leased period - Petitioners have been kept out of possession of shops from Dec. 24, 1992 to Nov. 5, 1993 unlawfully - Held, it would be just & proper if prayer is allowed - Necessary directions issued in the matter.

       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.

       [Para 19]