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Madhya Pradesh High Court · body

2011 DIGILAW 42 (MP)

Virendra Kumar Gupta v. State of M. P.

2011-01-11

S.N.AGGARWAL

body2011
ORDER 1. The short question that arises for decision in this writ petition is whether the Collector, Morena M.P. could in exercise of powers under section 323 of the M.P. Municipalities Act, 1961 set aside the resolution passed by the Municipality, Jaura, District Morena on 18.5.2010 (Annexure P/2 at page 12 of the paper book), whereby a decision was taken not to give town hall for marriage purpose on contract to a private contractor and to regulate the holding of the functions in the town hall by the Municipality itself. 2. The challenge to the impugned decision of the Collector has been made by the petitioner, who happens to be a resident of the area under the jurisdiction of the Municipal Council, Jaura, District Morena. His grievance is that the impugned order of the Collector, Morena is without jurisdiction. It is contended on behalf of the petitioner that if the impugned order is allowed to stand than it would work to the determent of the public at large inasmuch as the private contractor can exploit the intended users of the venue of function in the town hall at exorbitant rates at his own fancies and thereby the residents of that area may be forced to book the town hall at rates to be dictated by the contractor. In substance, the submission of learned counsel appearing on behalf of the petitioner is that the Collector, Morena had no jurisdiction to set aside the resolution of the Municipality passed on 18.5.2010 whereby decision was taken to regulate the holding of functions in the town hall by the Municipality itself instead of giving it on contract to the private contractors. The learned counsel for the petitioner has referred to and relied upon the statutory provisions contained in section 323 of the M.P. Municipalities Act, 1961 in support of his contentions in this regard. Per contra, Mr. Deepak Chandna, learned counsel appearing on behalf of respondent No.4 (private contractor herein) has argued to oppose the maintainability of the present writ petition mainly on the following two grounds: (i) The petitioner who was not a party in proceedings before the Collector, Morena has no locus standi to file the present writ petition. (ii) The impugned order passed by the Collector, Morena is revisable by the revisional authority in view of provisions contained in section 331 of the M.P. Municipalities Act, 1961. 3. Mr. (ii) The impugned order passed by the Collector, Morena is revisable by the revisional authority in view of provisions contained in section 331 of the M.P. Municipalities Act, 1961. 3. Mr. Deepak Chandna, learned counsel for the private respondent No.4 contends that in view of his above two objections raised against maintainability of the present writ petition, the present writ petition should be dismissed with costs. 4. On giving my anxious consideration to the above submissions advanced by the learned counsel for the private respondent No.4, I have not been able to persuade myself to agree with the same for reasons to follow hereinafter. 5. I would first like to deal with the contention of the private respondent No.4 regarding availability of an alternate remedy of revision against the impugned order passed by the Collector, Morena. This objection taken on behalf of private respondent No.4 is of no legal consequence because the impugned order passed by the Collector, Morena has been assailed on the ground that the said order is without jurisdiction. The provisions contained in section 323 of the M.P. Municipalities Act, 1961 are relevant and are extracted below :- "323. Power to suspend execution of orders, etc. of Council: - (1) If, in the opinion of the Divisional Commissioner, the Collector, or any other officer authorized by the State Government, in this behalf, the execution of any order or resolution of a council, or of any of its Committee or any other authority or officer subordinate thereto, or the doing of any act which is about to be done or is being done by or on behalf of the Council, is not in conformity with law or with the rules or bye-laws made thereunder and is detrimental to the interests of the Councilor the public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace, he may, by order in writing under his signature, suspend the execution of such resolution or order or prohibit the doing of any such act. (2) When any order under sub-section (1) is passed, the authority making the order, shall forthwith forward to the State Government and to the Council affected thereby, a copy of the order with a statement of reasons for making it; and it shall be in the discretion of the State Government to rescind the order, or to direct that it shall continue to be in force with or without modification, permanently or for such period as it thinks fit : Provided that the order shall not be revised, modified or confirmed by the State Government without giving the Council reasonable opportunity of showing cause against the order." 6. A plain reading of the above statutory provisions contained in section 323 makes it clear that the Collector, Morena had no power or jurisdiction to set aside the resolution in question passed by the Municipality deciding to regulate the holding of functions in the town hall itself instead of giving it to the private contractor. At best the Collector, Morena in exercise of his powers under section 323 of the Act could have kept the resolution of the Municipality in abeyance by suspending its operation till the time decision on the legality and validity of the resolution is taken by the State Government being the competent authority to decide the correctness and legality of the resolution passed by the Municipality, Even this power of the Collector to keep the resolution of the Municipality in abeyance can be exercised on his being satisfied about the existence of twin conditions, which are pre-requisites for exercise of jurisdiction under section 323 of the Act. These twin conditions are:- (i) The resolution of the Municipality under challenge was not in conformity with law or with the rules or bye-laws made there under and; (ii) The resolution under challenge was detrimental to the interest of the Councilor the public or is causing or likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace. 7. On a perusal of the impugned order of the Collector, Morena, it is apparent that it does not record any satisfaction about existence of either of the twin conditions mentioned above, which in the opinion of this Court, is a pre-requisite for exercise of powers under sections 323. 7. On a perusal of the impugned order of the Collector, Morena, it is apparent that it does not record any satisfaction about existence of either of the twin conditions mentioned above, which in the opinion of this Court, is a pre-requisite for exercise of powers under sections 323. It is crystal clear from the record that the impugned order passed by the Collector, Morena at the behest of the contractor is without jurisdiction and challenge to such an order by a person affected thereby cannot be thrown to winds merely on the ground of availability of an alternate remedy of revision under section 331 of the M.P. Municipalities Act, 1961. 8. Now reverting to the objection of the private respondent No.4 regarding locus standi of the petitioner to file the present writ petition against the impugned order of the Collector, Morena, it may be noted that the law is well settled that the person who is adversely affected by the impugned order is competent in law to take recourse to legal proceeding against such an order. In the present case, this Court has found that the impugned order of the Collector, Morena passed at the behest of the private contractor is without jurisdiction. Therefore, the petitioner cannot be ousted on a technical objection of locus standi raised by the private contractor/respondent No.4. I do not find any merit in this objection of locus standi taken on behalf of the respondent No.4. The respondents have not urged any other ground in opposition to the present writ petition. 9. In view of the foregoing and having regard to the facts and circumstances of the present case, this writ petition is allowed. The impugned order of the Collector, Morena dated 11.10.2010 is hereby set a side. There shall be no order as to costs.