JUDGMENT
A.N. Divecha, J.
1. A shocking state of affairs of the Municipality of Kalol (‘the Municipality’ for convenience) represented by respondent No. 3 herein has emerged from the record of this petition. A question that is posed before this Court in the context is whether or not what was done by the then Administrator of the Municipality on the day he was to relinquish the charge of his office could be annulled by the Collector of Mehsana (respondent No. 1 herein) in exercise of his powers under Section 258 of the Gujarat Municipalities Act, 1964 (‘the Act’ for brief). A further question has also been posed whether or not this Court can take any action against the said Administrator if his actions are tainted with illegality and invalidity on the face of it.
2. The factual backdrop behind this petition may be examined at this stage. It appears that Municipal affairs of the Municipality were in charge of the Administrator appointed by and on behalf of the State Government at the relevant time. A new Administrator was appointed and, as transpiring from the reply-affidavit filed by him in this case, he took charge around 5-30 p.m. on 24th October 1994. As luck would have it, on that very day before relinquishing the charge, the then Administrator has passed certain Resolutions. Thereby he granted on lease for 11 months 29 days to petitioner Nos. 1, 2, 4 and 5 certain places on a public street for installation of their respective cabins thereon for carrying on their respective business therein. Strangely enough, all those petitioners made their applications for allotment of such places for installation of their respective cabins on that very day, that is, on 24th October 1994, as transpiring from copies of such applications annexed to the memo of this petition as Annexures C, D, E and G (collectively). So far as petitioner No. 3 is concerned, he applied for allotment of a urinal in the Vakharia Shopping Centre to be converted into a shop for carrying on his business therein. Strangely enough, that application by petitioner No. 3 was made again on 24th October 1994. As transpiring from the affidavit-in-reply filed by the incoming Administrator, the so-called applications made by petitioner Nos. 1, 2, 4 and 5 are not on the record of the Municipality. Copies of applications produced by the petitioners as annexed with the memo of this petition do not bear any inward number of the Municipality. That apart, by virtue of the powers conferred on him under Section 263-A of the Act, the Administrator passed Resolutions again on the very same day of 24th October 1994 granting allotment of places on public streets for installation of cabins to petitioner Nos. 1, 2, 4 and 5. As transpiring from copies of so-called documents procduced by means of endorsements behind applications for allotment of such places made by the aforesaid petitioners, the surveyor’s report for suitability of allotment of the place in each case was obtained on the very same day of 24th October 1994 and the endorsements recommending grant of such place were also made by the then Administrator on that very day. As transpiring from the documents produced as Annexures to the memo of this petition, moneys were received from the aforesaid petitioners towards rent for grant of such places again on the very same day of 24th October 1994. All these transactions were completed on one single day presumable hurriedly by the then Administrator in the wake of his relinquishment of his office as such in the evening when the newly appointed person took charge from him. It appears that all such allotments made in favour of petitioner Nos. 1, 2, 4 and 5 were subject to the previous permission from the State Government as provided in Section 65(2) of the Act. The then Administrator found time to recommend to respondent No. 1 to accord his sanction to grant of such lease of places on the public street in favour of the aforesaid petitioners. As transpiring from the reply-affidavit, it appears that on coming to know of such fishy transactions by the then Administrator, some inhabitants of the town approached respondent No. 1 in that regard and respondent No. 1 instructed the Mamladar of Kalol to inform the Administrator that stay against the decisions taken by the outgoing Administrator was granted and the new Administrator was directed to cancel all the decisions of the outgoing Administrator. Appropos, the Mamlatdar of Kalol by his communication of 26th October 1994 informed the Administrator accordingly. Its copy is annexed as Exh. 4 to the reply-affidavit. It appears that the new Administrator by his communication of 27th October 1994 addressed to respondent No. 1 set out various decisions taken by his predecessor and requested respondent No. 1 to review those decisions if deemed fit. A copy of the aforesaid communication of 27th October 1994 is annexed as Exh. 5 to the reply-affidavit. It appears that respondent No. 1 thereupon passed his order of 27th October 1994 annulling the aforesaid Resolutions passed by the outgoing Administrator on 24th October 1994 granting on lease certain places on the public street to petitioner Nos. 1, 2, 4 and 5 herein and granting the urinal in the Vakharia Shopping Centre to petitioner No. 3. Its copy is a part of Annexure A (collectively) to this petition. The aggrieved petitioners thereupon approached this Court by means of this petition under Articles 226 and 227 of the Constitution of India for questioning the correctness of the aforesaid order at Annexure A (Part) to this petition.
3. It transpires from the reply-affidavit that petitioner No 5 was a former Municipal Councillor prior to appointment of the outgoing Administrator relinquishing the charge of his office as such on 24th October 1994. Incidentally, he was also one of the beneficiaries of the Resolutions passed by the then Administrator on 24th October 1994.
4. It is not in dispute that what was allotted by way of lease for 11 months and 29 days to each of petitioner Nos. 1, 2, 4 and 5 was a place on the public street for installation of his or her respective cabin for carrying on therein his or her respective business. The outgoing Administrator could obviously have done this under Section 65 read with Section 146 of the Act. Section 146 thereof empowers the Municipality inter alia to lease out a public street or its part if it is no longer required as such or for any other purposes of the Act. Section 65(2) requires the Municipality to obtain prior permission of the State Government before inter alia leasing out any part of any public street. As pointed out hereinabove, things were hurriedly done on one single day on 24th October 1994, the day on which the outgoing Administrator was to relinquish his office as such. It is nobody’s case that the public street on which places for installation of cabins were allotted on lease to petitioner Nos. 1, 2, 4 and 5 was declared as no longer required as a public street or for any other purposes of the Act. The condition precedent for leasing out such part of the public street in question as specified in Section 146(1) of the Act was thus not satisfied. The outgoing Administrator could not have, therefore, leased out any such part of the said public street to anyone including the aforesaid petitioners. His action in that regard was without competence and as such without jurisdiction.
5. So far as the condition precedent specified in Section 65(2) is concerned, it appears that the outgoing Administrator was careful enough to satisfy that condition. Leases of places on the public street in question proposed to be granted in favour of petitioner Nos. 1, 2,4 and 5 were subject to the previous permission of the State Government as transpiring from the documents produced on record as Annexures to the memo of this petition. By the order passed by this Court on 10th February 1995, this Court gave a direction that it would be open to the State Government to consider as to whether or not it should accord sanction in respect of allotments recommended in favour of the petitioners. I am informed by the learned Assistant Government Pleader appearing on behalf of respondent No. 1 that the Government has not granted sanction to allotments in question recommended by the outgoing Administrator. In that view of the matter, grant of lease of a part of the public street in question in favour of each of petitioner Nos. 1, 2, 4 and 5 has not come into effect.
6. It is the case of the petitioners that each of the aforesaid petitioners executed a rent note in favour of the Municipality pursuant to the Resolutions passed by the outgoing Administrator in that regard. It transpires from the reply-affidavit that no such rent notes are on the record of the Municipality. This fact has its own story to tell. It is, however, an admitted position on record that the petitioners in whose favour leases of some places on the public street were recommended did pay the advance rent to the Municipality and obtained receipt therefrom. Copies of such receipts are annexed to the memo of this petition. Relying on this factual situation, it has been urged that transactions were complete and the Resolution were implemented, and as such respondent No. 1 had no jurisdiction to upset under Section 258 of the Act the Resolutions passed by the outgoing Administrator in view of the binding Division Bench ruling of this Court in the case of Raghavbhai Arjanbhai v. Amreli Nagarpalika, reported in [1994(2)] XXXV (2) GLR 1117.
7. I think the aforesaid Division Bench ruling of this Court will not come to the rescue of the petitioners for simple reason that the Resolutions could not be said to have been implemented as the previous permission from the State Government under Section 65(2) of the Act was not obtained and such permission has come to be refused. Shri Shah for the petitioners has submitted that possession of the sites in question was handed over to the respective petitioners. The deponent of the reply-affidavit has disputed this position. Whether or not possession of the sites in question was handed over to the respective petitioners would thus be a disputed question of fact. In exercise of its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, this Court would be disinclined to examine such disputed question of fact. The appropriate forum for determination of that controversy is somewhere else. The fact, however, remains that the Resolutions passed by the outgoing Administrator for granting leases of certain places on the public street were not implemented except by accepting the advance rent from the concerned allottees. Acceptance of the advance rent might be a part implementation of such Resolutions. It cannot be gainsaid that a part would not mean the entirety. A part is certainly not the whole thing. In that view of the matter, there is no hesitation in coming to the conclusion that the Resolutions passed by the outgoing Administrator were not implemented. The aforesaid binding Division Bench ruling of this Court in the case of Raghavbhai (supra) will not, therefore, assist the petitioners in this case.
8. Shri Shah for the petitioners has submitted that the lease in favour of each of the concerned petitioners was for a period of 11 months and 29 days. It was, therefore, not necessary for the Municipality through its Administrator to obtain any previous permission under Section 65(2) of the Act from the State Government. I am unable to accept this submission for the simple reason that the places in question were admittedly on the public street and the mandate given under Section 65(2) of the Act is quite clear in that regard to the effect that a pervious permission from the State Government for grant of a lease of any part of the public street is a must.
9. In this connection a reference deserves to be made to the ruling of this Court in the case of Prabhudas Kalyanji v. Haji Hasan, reported in [1983(1)] XXIV (1) GLR 792. It appears that in that case a part of public street land was granted in favour of the petitioner therein without fulfilling the mandatory requirements under Section 146(1) and Section 65(2) of the Act. This Court has clearly held that such an act would be without any authority of law and therefore, non est.
10. The aforesaid ruling of this Court in the case of Prabhudas (supra) is on all fours applicable in the present case. Sitting as a single Judge, I am bound by the aforesaid ruling of this Court. Even otherwise, I am in respectful agreement therewith. It provides a complete answer to the contrary submission urged before me by learned Advocate Shri Shah for the petitioners.
11. It is true that under the impugned order respondent No. 1 has upturned the aforesaid Resolutions passed by the outgoing Administrator. In view of the aforesaid Division Bench ruling of this Court in the case of Raghavbhai (supra), respondent No. 1 has no power to cancel or annul any Resolution passed by a Municipality. The Administrator was exercising powers of the Municipality, and as such his Resolutions could not have been annulled by respondent No. 1 in exercise of his powers under Section 258(1) of the Act.
12. Even if the impugned order at Annexure A (Part) passed by respondent No. 1 is found to be tainted with illegality or invalidity, looking to the facts and circumstances of this case, this Court will be disinclined to grant the desired reliefs to the petitioners in this case. The reason therefor is quite simple. The petitioners also appear to be guilty of being hands-in-gloves with the outgoing Administrator. It appears that they knew that 24th October 1994 was the last day for the outgoing Administrator to be in office. All of them except petitioner No. 3 appear to have rushed to him for grant of certain places on the public street by way of lease to them respectively for carrying on their respective business by installation of their cabins. Petitioner No. 5 appears to be a former Councillor. As pointed out hereinabove, he was also one of the beneficiaries of the aforesaid Resolutions passed by the outgoing Administrator. That eloquently speak of his likely wielding of influence over the outgoing Administrator in passing the aforesaid Resolutions. Besides, as transpiring from the reply-affidavit, certain applications made by petitioner Nos. 1, 2, 4 and 5 (a former Municipal Councillor) are not on the record of the Municipality. Copies of the applications produced on the record do not show that those applications were inwarded in the Municipal records. It is not in dispute that the Municipality maintains its Inward Register. A xerox copy of the application made for grant of the urinal in the Vakharia Shopping Centre made by petitioner No. 3 on 24th October 1994 is annexed as Exh. 9 on the affidavit-in-reply and it bears the inward rubber stamp of the Municipality with its inward number with the date of its receipt. A xerox copy of a representation made by certain shop-keepers of shops housed in the Vakharia Shopping Centre made on 30th August 1994 is also annexed as Exh. 10 to the reply-affidavit. It also bears the inward rubber stamp of the Municipality with its inward number with the date of its receipt. Copies of applications made by the petitioners except petitioner No. 3 annexed to the memo of this petition do not show any inward number of the Municipality. It is true that they are merely copies and not original applications and they would not, therefore, bear any inward rubber stamp of the Municipality. However, in order to show genuineness of their applications, the petitioners could have shown under what inward numbers their applications were accepted in the Municipal records in the wake of the clear-cut statement made by the deponent of the reply-affidavit that such applications are not in Municipal records. In fact, the deponent of the reply-affidavit has in para 11 also stated in clear terms that the applications alleged to have been made by petitioner No. 4 for grant of lease of a public street land was written and signed by petitioner No. 5. It need not be reiterated that petitioner No. 5 was a former Municipal Councillor as transpiring from the reply-affidavit. This shows to what extent the petitioners, more particularly petitioner No. 5, played their role in bringing about the Resolutions passed by the outgoing Administrator on 24th October 1994. If the petitioners are hands-in-gloves with the outgoing Administrator, their such conduct makes them disentitled to claim any discretionary relief from this Court even if the impugned order at Annexure A (Part) is found to be tainted with illegality or invalidity.
13. In this connection, a reference deserves to be made to the Division Bench ruling of this Court in the case of Saurashtra Paper and Board Mills Pvt. Ltd. v. State of Gujarat, . In that case, the notification issued under the Minimum Wages Act, 1948 was found to be travelling beyond the scope of the authority of its author. However, in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India, this Court felt disinclined to invalidate it. By analogy, the aforesaid Division Bench ruling of this Court is applicable in the present case. No discretion deserves to be exercised in favour of the petitioners despite finding that the impugned order at Annexure A (Part) to this petition is found to be tainted with some illegality.
14. The Municipal affairs conducted by the outgoing Administrator on the last day of his office on 24th October 1994 are tale-telling. It cannot be gainsaid that an Administrator appointed by the State Government for carrying on Municipal affairs of a Municipality is a representative of the State Government. It would be the responsibility of the State Government to inquire into the conduct of such Administrator who has on the last day of his office as such conducted Municipal affairs of the Municipality in such a shocking manner. It is possible that this could be a tip of the iceberg. Much more startling revelations might come to light if a thorough investigation is made into the manner and method of conducting affairs of the Municipality by the Administrator till the day he relinquished his office on 24th October 1994. Since the State Government is not a party, the learned Assistant Government Pleader is requested to bring to the notice of the appropriate authority the feelings expressed by this Court in this judgment.
15. Another grievance voiced by the petitioners through their learned Advocate Shri Shah is to the effect that they have parted with their money for the purpose of obtaining leasehold right for establishing their cabins for carrying on their business and they are now left in the lurch. According to the petitioners, if this be the state of affairs, they can be said to have been defrauded. So far as petitioner No. 3 is concerned, his case deserves a separate consideration. So far as the other petitioners are concerned, they have to thank themselves for the present state of affairs as they appear to be hands-in-gloves with the outgoing Administrator for the purpose of passing the Resolutions on 24th October 1994 in their favour. If they feel that they are defrauded by the outgoing Administrator, their remedy lies elsewhere and not before this Court. They may hook the person guilty of defrauding them in an appropriate manner. At this stage, it may fairly be stated that Shri Patel for the Municipality has unequivocally declared that the Municipality would refund the amount paid by petitioner Nos. 1, 2, 4 and 5. As indicated, the case of petitioner No. 3 has to be separately considered.
16. So far as the question of grant of urinal in favour of petitioner No. 3 is concerned, it appears that the successor Administrator has obtained consent from petitioner No. 3 for payment of an additional amount of Rs. 5,000/- towards premium in addition to the earlier payment of Rs. 10,000/- and Rs. 600/- more towards rent in addition to Rs. 1,200/- paid by him earlier. The successor Administrator has recommended for the previous permission for allotment of the said urinal in the Vakharia Shopping Centre in favour of petitioner No. 3. Since the matter is pending before the appropriate authority, it is not desirable for this Court to say anything in that regard. It would be open to petitioner No. 3 to approach this Court if the decision turns out to be against him.
In view of my aforesaid discussion, I am of the opinion that this Court is disinclined to interfere with the impugned order at Annexure A (Part) to this petition at the instance of the petitioners though it is found to be tainted with illegality in view of the aforesaid binding Division Bench ruling of this Court in the case of Raghavbhai (supra).
17. In the result, this petition fails. It is hereby rejected. Rule is accordingly discharged with no order as to costs. A copy of this judgment may be sent to the Chief Secretary to the Government of Gujarat for his perusal and necessary action, if any.