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2008 DIGILAW 924 (BOM)

ZARGAR NAZIR AHMED v. STATE OF MAHARASHTRA

2008-07-02

R.M.SAVANT

body2008
PER COURT:- Rule, with consent of the parties made returnable forthwith and heard. 2. This petition takes exception to the order/direction dated 24-4-2007 by which order/direction, the Collector, Latur has directed the respondent No.2 to enter the property in question in the property tax register as per the registered deed and the parties were advised to approach the Civil Court for partition. The issue that has arisen for consideration is whether the Collector has the power and jurisdiction to issue the said order/direction under the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. 3. Such of the facts which are necessary to be stated for an adjudication of the above petition are stated thus- The petitioner and the respondent NO.3 jointly purchased the land situated at plot No.2 in Survey No. 290 Nanded Bidar road, taluka Udgir. district Latur. 4. It is the case of the petitioner that a partition took place between the petitioner and the respondent No.3 in respect of the said plot and accordingly, eastern side portion went to the share of the respondent No. 3 whereas the western side share portion came to the share of the petitioner. On 20-2-2006, the petitioner applied for mutation in his name in the Property Tax Register maintained by the Municipal Council, Udgir in keeping with the procedure prescribed. The Chief Officer i.e. the respondent No.2 herein issued a notice, calling for objections from the public at large in respect of the insertion of the petitioner's name in the said Property Tax Register. It appears that the respondent No.3 by his letter dated 6-3-2006 had already raised an objection to the mutation of the name of the petitioner in the said Register. It appears that after conducting the inspection of the property, the respondent NO.2 has mutated the name of the petitioner in the said Property Tax Register maintained by it. This was done on 23-2-2007. It appears that after conducting the inspection of the property, the respondent NO.2 has mutated the name of the petitioner in the said Property Tax Register maintained by it. This was done on 23-2-2007. On the petitioner's name being mutated in the Property Register, the Collector, Latur by his letter dated 21-3-2007 addressed to the Chief Officer, the petitioner above named and the respondent No. 3 informed them that the hearing in respect of the mutation in the said Register will be held in his office on 26th March, 2008 at II a.m. The petitioner filed a reply wherein the petitioner, specifically questioned the jurisdiction of the Collector to entertain any application in respect of the mutation of the name of the petitioner in the property tax register maintained by the respondent No.2. The petitioner was proceeding on the basis that the proceedings have been initiated by the Collector pursuant to an application made by the respondent No.3. The respondent No.2 also filed its reply inter alia stating that the mutation of the name of the petitioner has already been carried out by following due procedure. The Collector by the impugned order/direction dated 24-4-2007 directed the respondent No.2 to enter the name in the said property tax register as per the Registered Deed and the parties were directed to approach the Civil Court for partition. As indicated hereinabove, it is this order/direction which is the subject-matter of the above petition. 5. On behalf of the respondent No. I, an affidavit came to be filed by the one Prabhakar Shankarrao Tekale which was an affidavit filed on behalf of the Collector by the District Project Officer on the authorization of the Collector. In the said affidavit it has been stated that on 27-2-2007, one Shri Bagbande Bassappa Lingappa, who is the Council for of the Municipal Council, Udgir had filed an application to the Collector wherein lie requested the Collector to look into the matter and take action against the person concerned who has entered the name of the petitioner in the Municipal Council record. It has further been stated in the said affidavit that in view of the representation of the said Council for, the Collector issued notice to the concerned parties and called for the record from the Chief Officer of the Municipal Council. It has further been stated in the said affidavit that in view of the representation of the said Council for, the Collector issued notice to the concerned parties and called for the record from the Chief Officer of the Municipal Council. Since the direction/order has been issued by the Collector himself, the Collector was directed by this Court to file his own affidavit. Accordingly, Shri Eknath s/o Rajaram Doawale, District Collector, Latur has filed an Affidavit dated 27-2-2008 wherein it has been stated that the said order/direction dated 24-4-2007 has been passed in exercise of the supervisory power provided for under section 306(b) of the said Act. The source of the power, therefore, has been traced by the respondents to section 306(b) of the said Act. 6. On behalf of the petitioner, it is contended by Shri Barde, the learned Counsel that as is disclosed in the affidavit filed by the District Project Officer the said order/direction has been issued by the Collector in view of the representation made by Council for and not on the basis of any application/representation of the respondent No.3. The learned Counsel further submitted that the said exercise of power by the Collector is wholly without jurisdiction qua section 308 or section 306(b) of the said Act. Under section 308 of the said Act, the Collector can exercise power in public interest to stay any resolution that is passed by a Municipal Council. Insofar as section 306 is concerned, the power is of only inspection of either the property or the registers maintained by the Council. The learned Counsel submitted that the power under the said provisions can be exercised to correct acts, which according to the Collector, would be against public interest and not to dabble in individual disputes. The learned Counsel for the petitioner relied upon various judgments relating to the scope of the power under section 308 of the said Act. It is not necessary to refer to the said judgments in view of the specific stand taken by the Collector that the power has been exercised by him under section 306 of the said Act. The learned Counsel for the petitioner relied upon various judgments relating to the scope of the power under section 308 of the said Act. It is not necessary to refer to the said judgments in view of the specific stand taken by the Collector that the power has been exercised by him under section 306 of the said Act. The learned Counsel for the petitioner submitted that if the respondent No.3 is aggrieved by mutation of the petitioner's name, he could adopt appropriate proceedings for the same which obviously could not be by invoking the provisions of section 308 or section 306(b) of the said Act. 7. On behalf of the respondent No.2, Council for, it is submitted by Slui Bhavthankar that the entry effected in the name of the petitioner was by following the procedure prescribed for the same. According to Slui Bhavthankar, the entry by itself does not create any right in favour of the petitioner herein in respect of the property in question. 8. On behalf of the respondent No.3, on whose behalf, probably the Council for took up the issue, it is contended by the learned Counsel Mrs. Chincholkar that though the respondent No.3 had objected to the name of the petitioner being mutated in the said Property Register, the Chief Officer had misdirected himself by entering the name of the petitioner in the absence of any material produced supporting the partition. It is further submitted that the respondent No. 3 has filed Special Civil Suit No. 26 of 2007 for partition and possession and the petitioner herein has now appeared. The learned Counsel, therefore, submitted that in view of the filing of the said suit the impugned order passed by the Collector need not be interfered with. 9. Since on behalf of the respondent No. I the source of the said impugned order/direction is traced to section 306 of the said Act, it would be relevant to reproduce the said provision as under: 306. 9. Since on behalf of the respondent No. I the source of the said impugned order/direction is traced to section 306 of the said Act, it would be relevant to reproduce the said provision as under: 306. The Director, the Collector, or any officer of the Government authorised by the State Government, the Director or the Collector shall severally have power - (a) to enter on and inspect, or cause to be entered on and inspected any immovable property occupied by or movable property belonging to any Council or any institution under its control or management or any work in progress under it or under its direction; (b) to call for or inspect any extract from any Council's or its committee's proceedings and any book or document in the possession of or under the control of the Councilor any of its committees. 10. A reading of the said provision, therefore, makes it clear that the said power is akin to a power of supervision. In fact, the said provision is under the chapter which bears the heading 'Control'. A reading of clause (b) of said section also makes it clear that the Collector has the power only to call for or inspect any extract from any Councilor its Committee and document in the possession or under the control of the Council for any of its Committees. The said power has been conferred on the Collector with a view to see to it that the Council concerned carries out its duties and functions within the parameters of the said Act. In my view, the said provisions cannot be invoked to dabble in individual disputes between the parties as regards any entry made in any register maintained by the Council. 11. Another aspect to be considered is that the said order/direction has not been passed on any application made by the respondent No.3 but admittedly, on the representation made by a Council for. Hence, an attempt has been made somehow to justify the said order by tracing the source of the power to section 306 of the said Act. The order passed, therefore, in my view, on the said score also is patently illegal. 12. In that view of the matter, the impugned order/direction dated 24-72007 is required to be set aside and is accordingly set aside. The order passed, therefore, in my view, on the said score also is patently illegal. 12. In that view of the matter, the impugned order/direction dated 24-72007 is required to be set aside and is accordingly set aside. Since the respondent No. 3 herein has already filed Special Civil Suit No. 26 of 2007, the mutation made in the name of the petitioner in the property tax register would be subject to the final decision in the said suit. Rule is accordingly made absolute in the aforesaid terms with parties to bear their costs. Rule made absolute.