IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 15740 of 2008 DATE OF DECISION : 05.09.2008 Arjun Dev .... PETITIONER Versus State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. V.M. Gupta, Advocate, for the petitioner. * * * SATISH KUMAR MITTAL , J. In this petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for quashing the order dated 14.11.2007, passed by the Deputy Commissioner, Faridabad, cancelling/suspending the resolution dated 21.9.2007, passed by respondent No.3 - Municipal Committee, Hodal (hereinafter referred to as `the respondent Committee'), in exercise of the powers under Section 246 of the Haryana Municipal Act, 1973 (hereinafter referred to as `the Act'), as well as the order dated 17.12.2007, whereby the said order has been confirmed by the Commissioner, Gurgaon Division, Gurgaon, under Section 249 of the Act. In the present case, in an open auction, the petitioner being the highest bidder was allotted one plot, on which the shop in question has been CWP No. 15740 of 2008 -2- constructed. Undisputedly, subsequently the said allotment was cancelled by the respondent Committee. However, the order of cancellation has not been placed on record by the petitioner for the reasons best known to him. When the respondent Committee tried to dispossess the petitioner from disputed plot/shop being an illegal occupant, he filed a suit for permanent injunction for restraining the respondent Committee from dispossessing him from the shop in question. The said suit was dismissed by the trial court vide its judgment and decree dated 6.2.2007. The appeal filed by the petitioner against the said judgment and decree has also been dismissed on 29.8.2007. Regular Second Appeal filed by the petitioner against the judgments and decree, passed by the courts below, is pending. After dismissal of the above said suit, the respondent Committee filed ejectment proceedings against the petitioner under the Public Premises Act. It is the further case of the petitioner that in the meanwhile, the respondent Committee passed a resolution dated 21.9.2007, whereby tenancy in respect of the shop of the petitioner was renewed on the condition of enhancing rent to Rs. 800/- per month and deposit of Rs.20,000/- as security. The Deputy Commissioner, Faridabad – respondent No.2, in exercise of the power conferred on him under Section 246 of the Act, cancelled/suspended the said resolution on the ground that while passing the said resolution, no discussion was made and the Secretary, Municipal Committee under the influence of the local MLA got passed the said resolution. Even signatures of the Councilors were obtained lateron, on CWP No. 15740 of 2008 -3- the next page. A decision was taken to withdraw the proceedings under the Public Premises Act, which was not in the interest of the Municipal Committee. The order of the Deputy Commissioner cancelling/suspending the aforesaid resolution has been approved by the Commissioner, Gurgaon Division, Gurgaon, vide order dated 17.12.2007, under Section 249 of the Act. After passing of the aforesaid resolution, the petitioner again filed a suit for permanent injunction on 20.12.2007 by alleging that new tenancy has been created, therefore, respondent Committee be restrained from dispossessing the petitioner. In that suit, a statement was made on behalf of the respondent Committee that the respondent Committee has initiated the proceedings under the Public Premises Act and the petitioner will be dispossessed in due course, on an order passed by the Collector under the said Act. On the basis of that statement, the petitioner withdrew his suit. The proceedings under the Public Premises Act are pending against the petitioner. In the meanwhile, the petitioner has filed the instant petition, challenging the impugned orders on the ground that the Deputy Commissioner has illegally and without jurisdiction cancelled/suspended the resolution dated 21.9.2007, passed by the respondent Committee, even without providing an opportunity of hearing to the petitioner. We have heard counsel for the petitioner and gone through the CWP No. 15740 of 2008 -4- impugned order. Section 246 of the Act gives wide and varied powers to supervise and control to the Deputy Commissioner and empowers him to suspend the execution of any resolution or order passed by a Municipal Committee, if the same is contrary to the interests of the public or likely to cause waste or damage of municipal funds or property. When the Deputy Commissioner makes any such order, he is to forthwith forward a copy thereof, as envisaged in section 249 of the Act, to the Commissioner with a statement of reasons for making it with such explanation, if any, as the committee of such municipality may wish to offer and the Commissioner may thereupon confirm, modify or rescind the order. Therefore, the Deputy Commissioner has the jurisdiction to suspend a resolution, if he is satisfied that the resolution of the committee was either in excess of the powers conferred by law or contrary to the interests of the public or was likely to cause waste or damage of municipal funds or property. In the facts and circumstances of this case, it cannot be said that the Deputy Commissioner, Faridabad, has illegally and arbitrarily exercised the power conferred on him. When the allotment of plot in favour of the petitioner was cancelled and he was in illegal occupation of the same, he was not legally authorised to raise construction on the same. His suit for permanent injunction for restraining the respondent Committee from dispossessing him from the shop in question was dismissed and the ejectment proceedings were initiated by the respondent Committee under CWP No. 15740 of 2008 -5- the Public Premises act. When such proceedings were pending, there was neither any occasion nor it was in the interest of the respondent Committee to pass the resolution dated 21.9.2007 renewing the lease in respect of the shop by enhancing the rent. That act of the respondent Committee was not only in excess of the powers conferred on it, but was certainly contrary to the interest of the respondent Committee. Therefore, in our opinion, the Deputy Commissioner was fully justified in cancelling/suspending the said resolution. The Commissioner, while confirming the order of the Deputy Commissioner, has observed that the said resolution was passed without proper discussion in the meeting of the committee and under the influence of the local MLA. It has been mentioned that even the signatures of the Councilors were obtained lateron. Keeping in view all these factors, the Commissioner has approved the action of the Deputy Commissioner. Thus, we do not find any illegality in the impugned orders, passed by the Deputy Commissioner as well as the Commissioner. In the last, counsel for the petitioner argued that before passing the impugned orders, the Deputy Commissioner and the Commissioner did not provide an opportunity of hearing to the petitioner. In our opinion, in the facts and circumstances of this case, the Deputy Commissioner and the Commissioner were not required to provide an opportunity of hearing to the petitioner, as the impugned resolution was not passed by the respondent Committee at the request of the petitioner. The said resolution was the decision of the respondent Committee itself, which the Deputy CWP No. 15740 of 2008 -6- Commissioner in exercise of his powers under Section 246 of the Act has cancelled/suspended and the said order of the Deputy Commissioner has been confirmed by the Commissioner. The provisions of sections 246 and 249 of the Act do not require providing of an opportunity of hearing to a third party, who may likely to be effected by passing of the order. The only requirement to exercise the power under section 246 of the Act is that the Deputy Commissioner should record his satisfaction that the facts forming the basis of an order did actually exist and the said resolution is in excess of powers conferred by law or contrary to the interests of the public or likely to cause waste or damage of municipal funds or property. In view of the above, we do not find any merit in the instant petition and the same is hereby dismissed. ( SATISH KUMAR MITTAL ) JUDGE September 05, 2008 ( JASWANT SINGH ) ndj JUDGE