JUDGMENT
Jayant Patel, J.
1. As all the matters are interconnected on facts and as the common questions arise, they are being considered by this common judgement finally today, with the consent of the learned Counsel for the parties.
2. Special Civil Application No.10477 of 2002 is preferred by one Rajesh Thakorbhai Bhatt claiming to be a contractor who has been authorised to make construction. The short facts are that the Borsad Municipal Corporation (hereinafter referred to as “Municipality”) wanted to make construction of 36 shops and as per the petitioner, plinth level construction was made by the Municipality and thereafter the additional construction as to be made but the Municipality was in shortage of funds and, therefore, the offers were invited from the public at large and offer of the petitioner was ultimately accepted for construction of 36 shops. It is the case of the petitioner that he has paid Rs.17 lac to the Municipality towards the construction of the shops upto plinth level plus Rs.15 lac were paid to the Municipality for permitting construction, in all Rs.32 lac. It appears that thereafter on 16.9.1999, the proposal was submitted to the Municipality for allowing the construction of additional 30 shops on the land adjacent to the place on which original construction was to be made and it is the case of the petitioner that such proposal was accepted by the Municipality and the offer of the petitioner was accepted vide resolution No.186. As per the petitioner, as per the agreement, the cost of construction was to be borne by the petitioner and the amount which may be realised for allotment as “Sukdi” (premium) was to be recovered by the petitioner and the rent was to be recovered by the Municipality and the property was to remain as property of the Municipality. It appears that the District Collector took up the matter in suo motu revision being Municipality Case No.15/1999 and it may be recorded that not only the resolution No.186, but there were large number of other resolutions of the Municipality which were taken up in suo motu exercise of the power under Section 258 of Gujarat Municipalities Act (hereinafter referred to as the “Act”) by the District Collector. It appears that thereafter the District Collector passed the order on 27.2.2001, whereby he approved the resolution No.186 on the ground that the resolution was already implemented and the matter does not fall within his jurisdiction by relying upon the decision of this Court i.e. in the case of “H.H. Parmar v. Collector, Rajkot and Anr.”, reported in 20(2) GLR, 97. So far as the other resolutions are concerned, as and when they are relevant they shall be considered in the other petitions.
3. On 9.4.2001, the President of the Municipality preferred appeal against the decision of the Collector before the Director of Municipalities and the said appeal was entertained. It appears that the petitioner approached this Court by preferring Special Civil Application No.3626 of 2001 for challenging the proceedings of appeal on the ground that the President of the Municipality had no power to challenge the decision of the District Collector under Section 253 of the Act. It appears that in the said Special Civil Application, on 12.2.2002 a consent term was submitted between the petitioner and the Respondent Municipality, whereby it was agreed to withdraw the appeal and the petitioner had agreed to pay the amount of Rs.7,50,000/= by end of February, 2002 and the rest of the amount due and payable to the Borsad Municipality on or before 31.3.2002. In the said consent terms, it was also provided that BU permission shall be granted by the Municipality and the Municipality shall not object for electricity connection etc., and one of the terms of agreement was that the petitioner shall be free to dispose of the shops as agreed and the petitioner shall be entitled to give advertisements for such purpose and the necessary steps in this regard. It appears that in the said proceedings, the Director of Municipality was joined as party and though there was no agreement on the part of the Director of Municipality, the Asst. Government Pleader who represented the Director of Municipality signed the purshis. This Court (Coram: Kundan Singh, J.), as per the order dated 12.2.2002, disposed of the matter in terms of the consent terms and it was further ordered that the petitioner and respondent No.2 i.e. Municipal Corporation shall act as per the aforesaid consent terms. The statement recorded by the learned AGP on behalf of the Director of Municipalities and the Collector, was that the respondents No.1 and 3 have no objections for taking up the consent terms on record. It appears that after the disposal of the aforesaid Special Civil Application as per the order dated 12.2.2002 passed by this Court, the Director of Municipalities heard the appeal on merits. The Director of Municipalities found that by various resolutions, the Municipality has disposed of various lands at the token rent and with a view to see that the permission may not be required to be taken, artificial lease agreement of nine years is created and the valuation is not undertaken by the District Valuation Committee and before that the possession is handed over and as a result a huge financial loss is caused to the Municipality. It was also observed by the Director of Municipalities that in normal circumstances whenever the property is to be given on rental basis in case of residential property, the rent should be approximately 12% of the valuation of the property and it is also found by the Director of Municipalities that in certain cases properties were allotted to the relatives of the Councilors and office bearers of the Municipalities and, therefore, ultimately the Director of Municipalities has set aside various resolutions of the Municipalities including the resolution No.186, which is produced in the present petition and it is further ordered by him to consider the matter under Section 70 of the Gujarat Municipalities Act for fastening the financial responsibilities in case the Municipality has suffered any loss and for such purpose, the direction is given to the District Collector. It is under these circumstances, the present petitioners have approached this Court.
4. In Special Civil Application No.10583 of 2002, the facts are common to the extent of setting aside the resolution No.159 by the Director of Municipalities. However, the distinguishing facts in the present petition are that the resolution No.159 was passed by the Municipality for allotment of first floor of the shopping centre constructed by the Municipality and the petitioners were called upon to deposit Rs.2,26,261/= which has been deposited by the petitioners on 26.11.1996 i.e. the day on which the Collector forwarded the suo motu proceedings under Section 258 of the Act. It further appears that the present petitioners have preferred Civil Suit on 13.4.2000 restraining the respondent Municipality from disturbing the possession and it has not been stated in respect to the proceedings of the suit thereafter. The common facts are that the District Collector as per the order dated 27.2.2001 confirmed the resolution No.159 passed in favour of the petitioner, but the Director of Municipalities has set aside the said resolution and has given direction as given in respect of resolution No.186 and others. However, no writ petition is preferred by the present petitioners at the stage when the matter was pending before the Director of Municipalities like petitioners of SCA No.10477/2002. The ground for setting aside the resolution of the Municipality is the same as it was observed by the Director in respect to the other resolutions. As such the reasons recorded by the Director are common for setting aside the various resolutions of the Municipality including the resolution No.159.
5. Special Civil Application No.10826/2002 is preferred by the petitioner, who was in possession of the shop bearing City survey No.1714 of Plot No.56 and as per the case of the petitioner the same was allotted on rental basis. As per the petitioner, the application was made to the Collector for allotment of the land near to the road on 22.12.1993. It appears that the petitioner also preferred Civil Suit No.4 of 1994 before the Court of Civil Judge (S.D.) Anand and the suit came to be dismissed on 23.2.1995 against which the petitioner preferred Civil Appeal No.81/1995 and the appeal was withdrawn as per the settlement between the Chief Officer of the Municipality and the petitioner. It appears that the Borsad Municipality passed the resolution No.155/1 for allotment of the land situated at Survey No.1714 in Plot No.56 and as per the petitioner, on the very day of the resolution, the petitioner has sent the rent to the Municipality by registered A.D. Post and the said resolution of the Municipality is taken up in suo motu proceedings under Section 258 of the Act by the District Collector. The other facts pertaining to the confirmation of the resolution by the District Collector and setting aside of the resolution by the Director of Municipalities are common and for challenging the decision of the Director of Municipalities the petitioner has approached this Court.
6. Special Civil Application No.10827 of 2002 is preferred by the petitioner who has been allotted shop by the Municipality having area of 10 ft. x 10 ft. The Municipality passed the resolution for allotment of the shop vide resolution No.155 dated 6.11.1999 and thereafter the facts pertaining to the suo motu exercise of the power by the Collector and the confirmation of the resolution under Section 258(2) and the cancellation of the resolution by the Director of Municipalities under Section 258(3) are common.
7. Special Civil Application No.11422/2002 is preferred by the petitioner who is occupier of the land of Final Plot No.120 peki and as per the petitioner there was adjacent land admeasuring 24 sq. mtrs which was being used by the residents of the area for throwing garbage. The petitioner applied to the Municipality for allotment of the land and vide Resolution No.154/1 and No.173 the land adjacent to the shop No.68 is allotted, vide Resolution No.154/1 at the monthly rent of 40 ps. at the ground floor and 30 ps. at the first floor and the sukhdi (premium) of Rs.1000/= per sq. ft., vide Resolution No.173 the land admeasuring 24 sq. mtrs. is allotted to the petitioner by the Municipality on rent for nine years. The other aspects regarding the confirmation of the resolutions by the Collector under Section 258(2) and its cancellation thereof by the Director of Municipalities under Section 258(3) are common.
8. It is further case of the petitioners that the petitioners have made construction over the land which is allotted admeasuring 24 sq. mtrs. after the plan was sanctioned by the Municipality.
9. Special Civil Application No.10828/2002 is preferred by the petitioner who has been allotted the land by the Municipality bearing Survey No.1796, City Survey No.8/14, vide resolution No.163. The other aspects regarding confirmation of the resolution by the Collector under Section 258(2) and its cancellation thereof by the Director Municipalities under Section 258(3) are common. However, the additional aspect is that the petitioner had preferred Civil Suit No.69 of 2001 before the Civil Court, Borsad for the prayer of not to demolish half of the construction made by the petitioner. As stated by the petitioner, the injunction was granted by the Civil Court on 16.4.2001. Pending the suit as the Director of Municipalities set aside the resolution of the Municipality, which was passed in favour of the petitioner, the petitioner has approached this Court by preferring this petition. It may be recorded that Mr. Jhaveri, learned Counsel for the petitioners had submitted that as per the instructions received by him today from his client, the petitioner is desirous to withdraw the petition, since Civil Suit No.69/2001 is pending. Mr. Jhaveri prayed that the petitioner may be allowed to withdraw the petition. It appears that in spite of the pendency of the Civil Suit, the petitioner preferred the present petition before this Court for challenging the order of the Directors of Municipalities and not only that, but after the notice was issued by this Court in this petition on 25.10.2002, on 3.2.2003 this petition was heard with the other petitions which are being considered today. After considering the submissions made on behalf of the petitioners, this Court found that the matter deserves consideration and it was admitted and the interim relief against execution and implementation of the impugned order was passed by the petitioner and was granted by the Court. In spite of the pendency of the proceedings of the suit, when the petitioner has chosen to invoke the jurisdiction of this Court and after invoking the jurisdiction of this Court the petitioner has enjoyed the interim order passed in this petition, the petitioner is aware that the issue in this petition is connected with the other petitions which are being considered by this Court and as a matter of fact, the common order came to be passed on 3.2.2003 by this Court (Coram: C.K. Buch, J.) and, therefore, when the matters are being finally disposed of, the prayer of the petitioner to permit withdrawal of the petition, if entertained, may result into creating a situation where there may not be adjudication in the petition preferred by the petitioner and the room may be left to the petitioner to contend that the view which may be expressed by the Court in respect to other petitions should not be allowed to operate in the case of the petitioner. Such an anomaly may be created if the petitioner is allowed to withdraw the petition when the issue is being considered by the Court is common and having the common status.
10. No litigant can be allowed to prosecute the proceedings of the Court as a jolly ride. When the civil suit was pending and in spite of the Civil Suit, the statement was made at the time when the petition was preferred that the Civil Suit is for not to make demolition and after invoking the jurisdiction of this Court and having enjoyed the interim order, if the prayer of the petitioner for withdrawal of the proceedings is allowed, in my view, it may result into encouraging the litigant to test the proceedings of the Court and to get away as per his own whims, which should not be permitted. Hence, considering the peculiar facts and circumstances that the issues are being considered by this Court simultaneously in the other group of petitions, it would be just and proper not to allow the petitioner to withdraw the petition. On merits of the present petition it has been submitted by Mr. Jhaveri that the contentions shall be common with other petitions.
11. The petitioners of SCA No.6915 of 2003 are persons who have been allotted various plots of lands by respondent Municipality vide various resolutions dated 6.11.1999 and in the present case the facts are common so far as confirmation of the resolution by the District Collector under Section 258(2) of the Act and its cancellation by the Director of Municipality under Section 258(3) of the Act.
12. Heard Mr. S.K. Jhaveri, learned Sr. Counsel for the petitioners in SCA No.10477/2002, SCA No.10583/2002, SCA No.10826/2002, SCA No.10827/2002 and SCA No.10828/2002 and Mr. Parekh, learned Counsel appearing for the petitioners in SCA No.11422/2002 and Mr. Parikh, learned Counsel appearing for the petitioner in SCA No.6915/2003. I have also heard Mr. Mengdey, learned AGP for the State Authorities, Mr. Pradeep Patel for the President as well as Chief Officer of the Municipality, Mr. Adeshra, learned Counsel for respondent No.4 in SCA No.10477/2002. Mr. Pradip Patel submitted that he is also appearing for the Chief Officer of the Municipality, whereas Ms. Rajeshree H. Gadhvi, Chief Officer, Borsad Municipality states that as conveyed to her by the Advocate, Mr. Patel is not representing the Chief Officer. As such, the said aspects do not assume much importance as to whether Mr. Patel represents the President or Chief Officer of the Municipality, therefore, not required to be discussed further.
13. The learned Counsel for the petitioners raise the first contention that when the order is passed by the Collector under Section 258(2) confirming the resolution of the Municipality, no appeal could have been preferred by the President of the Municipality. It has been submitted that even if the Municipality has to prefer the appeal, the appeal could not have been preferred because the resolution of the Municipality was confirmed by the District Collector and, therefore, the Municipality cannot be said to be aggrieved by the decision of the Collector. It was also submitted by Mr. Jhaveri, learned Sr. Counsel appearing for the petitioners, in SCA No.10477/2002 that when the consent terms were presented and this Court disposed of the petition on the basis of the consent terms, and when it was also singed by the learned Advocate representing the Director of the Municipalities, it was neither open to the President of the Municipality to prefer to appeal, nor could the Director of Municipalities decide the appeal on merits. He submitted that the order passed by the Director in the appeal was not competent and was in any case, in contravention to the order passed by this Court in SCA No.3626/2001.
14. I have also heard the learned Counsel appearing for the petitioners on the point of principles that the writs are not issued for futility and if the interference by this Court in exercise of power under Article 226 of the Constitution, is to result into putting life to any illegal order, this Court may decline to exercise the power under Article 226 and, therefore, the learned Counsel for the petitioners were also heard on the point as to whether the order passed by the District Collector in purported exercise of power under Section 258(2) could be said to be a lawful order or not. On the said aspects it has been submitted by the learned Counsel appearing for the petitioners that so far as the petitioners of SCA No.10477/2002 is concerned, the offers were invited and thereafter the decision was taken to grant the contract to the petitioners and, therefore, it cannot be said that the settled norms of disposal of the public property were not followed by the Municipality for grant of contracts to the petitioners for construction of shops. It was also submitted that as nobody came forward for submitting the offer, after the revised scheme by making additional constructions of the shops, the offer of the petitioner was accepted. It was also submitted that the agreement was entered into and the petitioners have altered the position and, therefore, the order of the Collector for confirming the resolutions in favour of the concerned petitioners was legal and valid.
15. The perusal of the order passed by the Collector shows that the main ground on the basis of which resolutions are not interfered with and confirmed is that once the resolutions are implemented, the Collector has no jurisdiction under Section 258 of the Act and for such purpose the reference is made to the decision of this Court in case of “H.H. Parmar v. Collector, Rajkot and Anr.”, reported in 20(2) GLR, 97. However, the aforesaid decision of this Court is subsequently considered by the Full Bench of this Court, whereby the view taken is that under Section 258 of the Act even if the resolution is implemented the Collector has power to direct for status ante. Therefore, the basis of the decision of the District Collector that he has no jurisdiction, is contrary to the decision of the Full Bench of this Court in case of “Parshottambhai G. Chavda v. State of Gujarat”, reported in 1998(1) GLH, 519 and, therefore, the order of the Collector that he has no jurisdiction under Section 258 of the Act cannot be said to be legal in the eye of law.
16. Apart from the above, the crucial aspects which were required to be considered by the District Collector under Section 258 of the Act while exercising supervisory jurisdiction over the functioning of the Municipality was that whether such norms of disposal of public property are followed by the Municipality or not. There cannot be any dispute to the position that the properties of the Municipality are public properties. The Division Bench of this Court while considering the issue in the matter of supersession of a Market Committee, which is also a local body, in the matter of “Varvabhai Nathabhai Rabari & Ors vs State of Gujarat and others”, reported in 2003(1) GLR 97, at para 9 has observed as under: “A perusal of the above scheme of the Act read with relevant Rules clearly shows that it is like other local body which is constituted for the purpose of providing facilities to agriculturists and such facilities are to be created as provided under the Act from the funds which inter alia may be created from the cess which may be collected by the market committee. The status of the elected members of the market committee is more or less like the status of other elected members holding the office under the local authorities or statutory authorities. It is true that the market committee has been given powers to purchase and sell its properties, but its powers to purchase and sell the properties are coupled with the duty to ensure that such powers are used for enforcement of objects of the Act, rules and bye-laws. These powers are coupled with the public duty and such powers are not like powers of individual persons managing their own affairs, but there is something more about the accountability. It is needless to point out that when any representative is elected by the voters, some faith is reposed on such elected representative by the voters that the so called elected representative would exercise his powers under respective statutes for the larger interest of institution or the local body acting as a wise person keeping in view the pros and consequences of the action to be taken and keeping in view the interest of institution or the body. ”
17. Therefore, the elected representative of the Municipality holds the same position and while exercising their power they are required to function as the Trustees of the public property. It is now well settled that for disposal of the public property, the opportunity is required to be given to all interested persons and the efforts must be made to realise the maximum revenue and thereafter the decision can be taken for allotment of the public property. None of the procedure is followed by the office bearers of the Municipality for disposal of various properties of the Municipality by various resolutions. Therefore, even if the matter is considered on that aspect it is apparent that the District Collector has not considered the matter by examining that whether settled norms for disposal of the properties of the Municipality by the elected representatives of the Municipality are followed or not. On facts there is no dispute, except for the resolution No.186 which shall be dealt with hereinafter that any attempt for disposal of the public property by inviting offers from the interested parties efforts were made for procuring maximum price. As such all the resolutions of the Municipality, if considered as it is, are in contravention to and against the settled norms of disposal for public property. Therefore, the order of the Collector cannot be said to be legal in view of the decision of the Full Bench of this Court in case of “Parshottambhai G. Chavda v. State of Gujarat”, reported in 1998(1) GLH, 519 (supra) as well as since the settled norms for disposal of the public properties were not followed. In spite of the same, the Collector confirmed the resolutions of the Municipality and, therefore, the order of the Collector cannot be said to be legal in the eye of law.
18. So far as the Resolution No.186 is concerned, the attempt was made by Mr. Jhaveri, learned Counsel that the offers were invited and the petitioners’s offers were accepted and thereafter the contract was given. The same may hold good even if considered to its logical extent to only 36 shops and not for the shops exceeding the same. No prudent or responsible office bearers of a public body would accept the offer as has been accepted by the office bearers of the Municipality. In my view, the office bearers of the Municipality have accepted the offer of the petitioner by allotting the additional land for making the construction and has permitted the private party to collect the premium and leave the ownership to the Municipality for claiming ownership and for rental income. Even if such an exercise was to be undertaken for grant of additional land and for further construction of additional shops, nothing prevented the Municipality or the office bearers of the Municipality to get proper valuation from the experts and thereafter to invite offers and to make sincere efforts to get the maximum amount by construction of the shops. As such in any case, the power for collection of premium which is styled as “Sukhdi” for allotment of the shops, could not have been delegated by the Municipality to the petitioner as sought to be done in the present case and, therefore, qua the allotment of the additional land and for construction of the shops exceeding 36 shops even in respect to resolution No.186, it can be said that the settled norms for disposal of the public property are not followed by the Municipality before entering into contract with the petitioners.
19. The Director of Municipality has mainly considered the aspects that the Municipality has not followed proper procedure for disposal of its properties. Even the valuation of the property is not undertaken and it has resulted into huge financial loss to the Municipality. Therefore, in view of the observations made hereinabove, if the interference is made to the order passed by the Director by exercising power under Article 226 of the Constitution, the consequences would that the order passed by the District Collector, as observed earlier, which is found to be illegal even by this Court, would be put to life and, therefore, considering the same, it would not be proper for this Court to exercise power under Article 226 of the Constitution of India on the contention which is sought to be raised by Mr. Jhaveri that the appeal was not competent or that the Director of Municipality had no jurisdiction to entertain the appeal.
20. In view of the aforesaid I find that it is not necessary to decide the question as to whether the Municipality can prefer appeal under Section 258(3) of the Act when the Collector has confirmed the resolution passed by the Municipality.
21. Even on the aspects of exercise of power by the Director on the basis of the consent terms filed before this Court, in the proceedings of SCA No.3626/2001 is concerned, I find that as such it cannot be said that the Director of Municipalities, who was exercising quasi-judicial power under Section 258(3) of the Act was party to the consent terms. Merely because the learned AGP has not objected to the consent terms to be taken on record or that it is formally signed, such cannot bind the quasi judicial authority from exercising the statutory power, more particularly when this Court has not examined the merits of the matter, but has simply disposed of the matter in terms of the consent terms. Therefore, considering the facts and circumstances, more particularly in view of the observations made hereinabove if the interference is made by this Court in exercise of power under Article 226 of the Constitution, it may result into putting into life to the illegal order passed by the Collector, I find that it would not be a case to upset the order passed by the Director of the Municipalities by interfering on the ground that the order is passed in contravention to the order passed by this Court dated 12.2.2002 in SCA No.3626/2001 on the basis of the consent terms.
22. The learned Counsel appearing for the petitioners lastly contended that the position is altered by the concerned petitioners on account of the implementation of the resolutions passed by the Municipality in as much as it has been submitted that the petitioners of SCA No.10477/2002 have made huge investment in constructing the shops and other petitioners have to some extent altered their position. As such in view of the order of this Court dt. 3.2.2005 pending this petition, the parties were directed to maintain status-quo and the Director of Municipalities passed impugned order on 3.10.2002. Therefore, it will have to be examined as to whether the petitioners concerned who have acted on the basis of the resolutions have altered their position in bonafide or any action was taken by the petitioner concerned with a view to frustrate the proceedings before the District Collector and/or before the Director of Municipalities. If it is found that the concerned petitioners who are beneficiaries of resolutions have acted in bonafide, then in that case, as a consequence of the order passed by the Director of Municipalities, if the concerned petitioners are to be deprived of the rights pertaining to the resolution, then they may be entitled to the reimbursement of the expenses incurred over the property in question with reasonable rate of interest at the rate of 12% per annum. But, if the position has become irreversible, then also those who are beneficiaries of the illegal resolutions, cannot be allowed to continue with the benefits unless the difference of the monetary consideration is paid by such concerned person, had the settled norms for disposal of public property followed and the reasonable interest also from that date till the actual payment. Considering the facts and circumstances, I find that it may not be possible for this Court to undertake the exercise on the said aspects and, therefore, for such purpose it would be just and proper if the District Collector assigns the work for holding inquiry in this regard as per the observations made hereinabove. The report may be submitted to the District Collector and the consequential orders may be passed by the District Collector. It would be for the concerned petitioners to move appropriate application in this regard and after holding inquiry while effecting the status quo ante or while considering the matter as a consequence of the order passed by the Director of Municipalities, appropriate orders may be passed by the District Collector for giving suitable directions to the Municipality, within a period of four weeks. The aforesaid exercise may be undertaken by the Officer who may be nominated by the District Collector, not below the rank of Dy. Collector and to hold inquiry and to pass the final order by the District Collector as early as possible, preferably within three months from the date of such application.
23. The Collector, while passing the final order, may also direct the Municipality to comply with his direction within a reasonable stipulated time limit, which may be about one month from the date of communication of the order.
24. Subject to the aforesaid observations and directions all the petitions are dismissed. Rule discharged in all the petitions. I.R., if any, shall continue to remain in operation for maintenance of status-quo until inquiry is undertaken and the orders are passed by the District Collector as observed hereinabove.