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SCA/1270020/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12700 of 2008
=====================================================
ANKLESHWAR
NAGARPALIKA - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=====================================================
Appearance :
MR
APURVA KAPADIA WITH MS SHAILI A KAPADIA for Petitioner(s) : 1,
None
for Respondent(s) : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 17/10/2008
ORAL
ORDER
1. Heard
Mr. Kapadia, learned counsel for the petitioner.
2. The
petitioner by this petition, has challenged the order passed by the
Collector, Bharuch dated 6.2.008 and its confirmation by the Director
of Municipality vide order dated 26.6.2008.
3. The
contention raised on behalf of the petitioner is that the Collector
has no jurisdiction under Section 258 of the Gujarat Municipalities
Act (hereinafter referred to as the Act ) in a matter, where
lease has been granted and other submission of Mr. Kapadia, learned
counsel is that the matter was out of the jurisdiction of the
Collector under Section 258 of the Act. It was submitted that
considering the peculiar circumstances as the election of the
assembly was to be held and code of conduct was operating, the
Municipality had to exercise power in urgent circumstances and
therefore, it has been submitted that the Collector ought not to have
set aside the decision and Director of Municipality ought not to have
confirmed the order of the Collector. It has been submitted that
therefore, this Court may interfere.
4. Having
considered the above, it deserves to be recorded that as per the
provisions of Section 65 of the Act, if the Municipality has to enter
into in lease or sale or otherwise transfer of the immovable property
for a period exceeding one year, prior approval of the District
Collector is required to be obtained. Therefore, if a period exceeds
one year, the provision of Section 65 of the Act would be attracted.
In the present case, initially the period of the lease was fixed at
11 months and 29 days, so as to see that no permission may be
required and such lease in any case, was
within power of Municipality. It deserves to be recorded that
the earlier decision of the grant of lease by general body of the
Municipality and therefore, if the period was to be extended, the
President may not as such take the decision for extension of period
and even if general body was to take decision, it may consequently
result into attracting the provision of Section 65 of the Act for
prior approval from the District Collector. It is an admitted
position that no permission of the District Collector was obtained.
Therefore, District Collector exercised the power under Section 258
of the Act.
5. The
contention that the matter would fall outside the scope and ambit of
Section 258 of the Act, cannot be accepted for the simple reason that
the language of Section 258(1) of the Act refers to the exercise of
power by the Collector, if anything is done by the Municipality is
unlawful. The provision of the Act are widely read for supervisory
jurisdiction of the Collector. It has been interpreted to the extent
that if in case service matter pertaining to the employee, whether
the action is taken and is already implemented, the Corporation has
power under Section 258 of the Act. The reference may be made to the
decision of this Court in the case of Harendra Pandya Vs.
Bharuch Municipality reported in 1989 (1) GLH 470.
Not only, but as per the decision of Full Bench of this Court in
the case of Parshottambhai G. Chavda Vs. State of Gujarat
reported in 1998 (1) GLH 519, the
Collector has power to direct status-quo ante
under Section 258 of the Act by maintaining position as it
exercised prior to the Resolution of the Municipality.
Therefore, on the basis of the aforesaid judgment of the
Division Bench as well as of the full Bench of this Court, the
contention cannot be accepted and deserves to be rejected.
6. An
attempt on the part of the learned counsel for the petitioner to
contend that there was peculiar circumstances because of code of
conduct, also cannot be countenanced for the simple reason that
merely because election was being held of the assembly, there is no
blanket prohibition against
taking any decision. The only requirement would be, the prior
approval of the Election Commission. Nothing prevented from the
Municipality from taking approval/permission of Election Commission,
had the contention been genuine.
7. The
Collector has found that the decisions of the President of
Municipality as well as general body of the Municipality are not in
accordance with the requirement of the Act and Director of the
Municipality has concurrent with the same. It cannot be said that any
illegality is committed, which may call for interference by this
Court in a petition under Article 226 and 227 of the Constitution.
8. Hence,
no case is made out. Therefore, rejected.
(JAYANT
PATEL, J.)
ynvyas
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