SCA/5567/1982 of PALANPUR NAGARPALIKA Vs DIRECTOR OF MUNICIPALITIES on 15 September 1995

ORAL JUDGMENT

The order passed by the Director of Municipalities(respondent No.1 herein) on 6th October 1981 in an appeal undersec. 258(3) of the Gujarat Municipalities Act, 1963 ('the Act'

for brief) is under challenge in this petition under Art. 226of the Constitution of India. By his impugned order, respondentNo.1 partly accepted the order passed by the Collector ofBanaskantha at Palanpur (respondent No.2 herein) under sec. 258thereof holding that the donation accepted by the petitionermunicipality for regularisation of the encroachment made by twocabin-holders (respondents Nos. 3 and 4 herein) was illegal andthe donation amount was ordered to be refunded.

2. The facts giving rise to this petition move in a narrow compass. Respondents Nos. 3 and 4 had raised their respectivecabins on the lands allotted to them by thepetitioner-municipality. It appears that the term of allotmenthad expired and it was found by the petitioner municipality thatrespondents Nos. 3 and 4 had made some encroachment of themunicipal land. It appears that they requested the petitionermunicipality to regularise their encroachment and thereupon itwas regularised and they stated to have voluntarily agreed topay donation in the sum of Rs. 4601 each. A copy of theircommunication in that regard is at Annexure B to this petition.It appears that, pursuant thereto, the encroachment wasregularised. Thereafter respondents Nos. 3 and 4 approachedrespondent No.1 with a representation against taking donationfrom them by the petitioner municipality for regularisation ofthe encroachment. A copy of their representation of 7th March1979 to respondent No.1 is at Annexure C to this petition. Itappears that it was brought to the notice of respondent No.2also. He thereupon initiated the proceeding under sec. 258 ofthe Act. By his order passed on 23rd June 1981, respondent No.2set aside the resolution passed by the concerned municipality on18th September 1988 regularising the encroachment made byrespondents Nos. 3 and 4 herein. Its copy is at Annexure E tothis petition. The aggrieved municipality carried the matter inappeal before respondent No.1 By his order passed on 6th October1981< respondent No.1 partly accepted it and set aside the orderpassed by respondent No.2 quashing the resolution regularisingthe encroachment but affirmed the order declaring acceptance ofthe donation to be illegal and refund of the donation amount torespondents Nos. 3 and 4 herein. Its copy is at Annexure F tothis petition. The aggrieved municipality has thereuponapproached this court by means of this petition under Art. 226of the Constitution of India for questioning the correctness ofthe order at Annexure F to this petition to the extent it isagainst it.

3. The jurisdiction of the Collector under sec. 258 of theAct has been defined by this court from time to time. Thelatest ruling on the point is the one rendered by the DivisionBench of this court in the case of Raghavbhai Arjunbhai andAnother v. Amreli Nagarpalika and Another reported in 1994(1)G.L.H. 470. It has been clearly held therein that the authority exercising powers under sec. 258(1) of the Act cannotupset any resolution of the municipality if it has come to beenforced and implemented. Sitting as a single Judge, theaforesaid Division Bench ruling of this court is binding to me.Even otherwise, I am in respectful agreement therewith.

4. The aforesaid Division Bench ruling of this court is onall fours applicable in the present case. The petitionermunicipality appears to have passed one composite resolutionbearing No.1131 on 18th September 1978 regularising theencroachment made by respondents Nos.3 and 4 herein as alsopayment of the donation amount. It was a composite resolution.It was implemented by payment of the donation amount byrespondents Nos. 3 and 4 herein. Since the resolution wasimplemented, the authority exercising powers under sec. 258(1)of the Act could not have upset it in view of the aforesaidDivision Bench ruling of this court. If that authority couldnot have done so, the appellate authority under sec. 258(3) ofthe Act also could not have done it as an appeal is acontinuation of the original proceeding.

5. In view of my aforesaid discussion, the impugned orderat Annexure F to the petition to the extent it is against thepetitioner municipality cannot be sustained in law. It has to bequashed and set aside to that limited extent.

6. In the result, this petition is accepted. The orderpassed by the Director of Municipalities on 6th October 1981under sec. 258(3) of the Act to the extent it has orderedrefund of the donation amount to respondents Nos. 3 and 4herein is quashed and set aside. Rule is accordingly madeabsolute to the aforesaid extent with no order as to costs.

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