ORDER
S.B. Mhase, J.
1. This Civil Revision Application is directed against the order dated 24-7-1989 passed by the Civil Judge, Senior Division, Jalna below Exhibit 35 in Regular Civil Suit No. 108 of 1988 whereby the preliminary issue regarding the jurisdiction of the Court was decided. The said issue is as follows:
'Whether this Court (Civil Judge, Senior Division, Jalna) has jurisdiction to try the suit ?'
The aforesaid issue has been answered in the affirmative holding that the said Court has jurisdiction to try the suit and therefore, the Municipal Council, Jalna has preferred this Civil Revision Application.
2. The plaintiffs are residents of Jalna and they claim that they are tax payers of Municipal Council, Jalna. They have filed the suit claiming that the Officers of the Municipal Council are always misusing the powers and disobeying the directions of law every now and then to the extent that the day to day work of the defendant Municipal Council is as good as completely stopped. It is also alleged that the Municipal Council is not looking after the sanitary work of city which adversely affected the life of the citizen and amounts to slow poisoning and reducing the life of the citizen because of hazards. The plaintiffs further allege that it is the primary duty of the defendant Council to remove filth, rubbish night soil odour or any other noxious of offence matters and the Council has failed in its primary duties and misusing the powers, misusing the funds and also mis-appropriating the funds.
3. Apart from the above general allegations, in para No. 7 of the plaint, instances have been quoted in sub-paras (a) to (v) which can be summarised as follows :
(a) For celebrating 10th August, 1985 the tenders for decorative lightening given to higher tenderer rejecting the low tender.
(b) In July-1985 expenditure for diesel oil has been incurred of Rs. 31,000/-while the Chief Officer was Shri Khillare.
(c) Illegal permission within one day was given to the employee of the State Bank and construction of 15 houses when the Chief Officer was Shri Khillare.
(d) In April-May 1987, a false document was prepared in the name of bogus contractor for the work in Jawahar Bag and the amount was misappropriated while Shri B.D. Sanap was the Chief Officer.
(e) Ambad Road work of 5 deep digging well was given for Rs. 25,000/- to the contractor when the work was of Rs. 2,000/-.
(f) In boring work the false bills were prepared and amounts were mis-appropriated while Shri B.D. Sanap was the Chief Officer.
(g) An amount of Rs. 14,000/- was paid to Bane Khan, Ratanlal, Govindrao Borade and Mazsood Ahmed for purchasing the books, but the books are not purchased while Shri P.D. Sanap was the Chief Officer and the amount was paid by Chief Officer Sanap and the President.
(h) False bills were prepared for purchase of motor parts on 19-5-1987.
(i) False attendance was shown in respect of Ratan Limbaji and Narayan Ganpat Wange from 1985 to 1987.
(j) 1000 Cement bags were mis-appropriated by the concerned persons on 3-6-1985 and 9-6-1987.
(k) Power loom building of the school was shown in the name of false owner and the monthly rental at Rs. 250/- was mis-appropriated for 7 years and thereafter.
(l) Sarees at the rate of Rs. 40/- to Rs. 45/- were purchased and distributed to the women workers of the Council but the bill was prepared at Rs. 7/- and Rs. 7,000/- were mis-appropriated.
(m) In April-May 1987, 56 tons of Turti i.e. Alum was shown to have been purchased for three months which is required for one year and this shows the misappropriation,
(n) In an auction of plots at Bhokardan Road, concerned officers have mis-appropriated in lacs and also plots were mis-appropriated.
(o) Weekly Bazar were not auctioned at proper times and caused loss to the Municipal Council to the tune of Rs. 4,00,000/-.
(p) Phule Market and Mamba Devi Market never auctioned even though the Municipal Council came to know that the old possessors of the shops are transferring the shops and thus caused loss to the tune of Rs. 30 Lacs.
(q) In May-February 1987 the Councillors used the car and caused loss of Rs. 2 Lakh.
(r) The work of transporting waste material from city was given to the contractors who are Councillors and thus caused loss of Rs. 2 lakhs,
(s) In April-June 1987 two trucks were purchased by the Council and the Shri Sanap Chief Officer misappropriated the amount of Rs. 1 lakh.
(t) In December, 1987 in purchasing the electric material the Councillors have misappropriated Rs. 2 lakhs.
(u) The octroi naka was constructed without calling for the tenders and without permission and without mark out and thus toss of Rs. 1 lakh was caused.
Thus on the basis of the aforesaid alleged instances, it is alleged that the defendant Municipal Council and its officers are mismanaging and misutilising the funds of the Municipal Council which are raised from the tax which is collected from the persons who are residing within the Municipal area of the defendant Council and therefore, it is a public money and therefore the suit has been filed that the Municipal Council be restrained from recovering any tax from the plaintiff and that the mandatory injunction be issued against the defendant Nos. 1 and 2 to take necessary action against the persons who have misappropriated the property of the Municipal Council and responsible for mis-management.
4. The question which is posed is, whether such a suit is tenable and the Civil Court has jurisdiction to entertain the same.
5. The learned Counsel appearing for the petitioners submitted that the said suit is not tenable in law. He submitted that the suit is as vague as possible. None of the instances which have been quoted above give full particulars and/or material facts constituting the said grounds. He further submitted that discharge of the duties under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 is the function to be carried out by the officers of the Municipal Council under the control and supervision of the elected Councillors, Collector, Director of Municipal Administration and the State Government and the Act has provided self-contained machinery for regulating the powers and duties of each of the Officer and body constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. He further pointed out that Chapter XXIII which pertains to the control points out in what manner the Collector, Director of Municipal Administration and State Government controls the activities of the Municipal Councils and further supervises on it. And therefore it is submitted that the suit is not tenable in law.
6. Mr. Parundekar, learned Counsel who appears for the respondent submits that the plaintiffs-respondents have filed the suit in view of the provisions of section 91 of the Code of Civil Procedure and therefore the plaintiffs are not claiming any special damages and that they only want an injunction as against the nuisance or other wrongful acts affecting or likely to affect the public, and therefore, with the leave of the Court the suit has been filed. Mr. Parundekar, further submitted that all these acts which have been enumerated above are wrongful acts which are likely to affect the public and therefore, the suit is very much tenable.
7. Before dealing with the main contention, it requires to be stated that the plaintiffs have filed the similar writ petition bearing Writ Petition No. 1967 of 1987 before this Court. However, the same was rejected on 9-2-1988. Thereafter the present suit has been filed on 20-2-1989 without disclosing the fact of rejection of the writ petition. However, the fact is that the earlier writ petition was rejected by this Court. Suffice it to state that the plaintiffs had no cause of action to file such a suit again. Apart from this I have stated earlier the allegations made by the plaintiffs are vague and without material particulars. All those allegations are of the different years and in respect of some allegations, time, month and year, and when the said instance has taken place, nothing has been stated. The names of persons involved in the said instances even though some times the names have been disclosed, many times the names have not been disclosed. All those persons have not been joined as party defendants to the suit. If these grievances are perused the main grievance appears to be that the officers of the Municipal Council are mismanaging and misutilising and/or misappropriating the funds of the Municipal Council and thereby the Municipal Council and its officers are not discharging their statutory duties in accordance with the law.
8. In order to meet out these grievances, it can be noticed that section 306 gives powers of inspection and supervision to the Director, Collector, or any officer of the Government authorised by the State Government, the Director or the Collector, shall severally 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. These officers have further powers to call for or inspect any extract from any Council's or its Committee's proceedings and any book or document in the possession or under the control of the Council or any of its Committees. As per section 307, the Director or the Collector shall have power to call for any return, statement, account or report from the Council. Under section 308, ifthe Collector is of the opinion that the execution of any orders, resolutions of the Council or doing of anything which is about or is being done by or on behalf of a Council, is causing or is likely to cause injury, annoyance to the public or is against the public interest or to lead to breach of the peace or is unlawful, he may by order in writing suspend the execution or prohibit the doing thereof and the said order is subject to the scrutiny of the Director. In section 309 the Collector has emergency powers to execute the work which is necessary for holding safety of the public. Under section 310 the Director is possessed of the power to direct the Municipal Council to prohibit the extravagance in the employment of the establishment. Under section 311, the State Government has a power to order inquiry in the matters concerning Municipal Administration or any matters with respect to sanction, approval or consent of the Government is required. Under section 312 the Director has a power to enforce the performance of the duties from the Municipal Council etc. and under section 313 the State Government is empowered to dissolve the Council if the Government finds that the Council is not competent to perform the duties imposed upon it by or under this Act or any other law for the time being in force or persistently makes a default in performance of such duties or any compliance with the lawful directions and orders issued by the Collector, the Director, the State Government or any other authority empowered under the law to issue such directions or orders to a Council or Council makes a default in performance of duties under Clause (s-la) of sub-section (2) of section 49 or exceeds or abuses its powers, or a situation has arisen in which the administration of the Council cannot be carried out in accordance with the provisions of this Act or the financial position and the credit of the Council is seriously threatened, the State Government may after giving the Council, a reasonable opportunity of being heard by an order published in the official gazette, stating the reasons therefore dissolve the Council. All these provisions point out the control by the officers and not only that section 308, 311, 312 and 313 gives a power of inquiry to the concerned officers. More specifically under section 308, is a power to be exercised by the Collector when any order, Act or Resolution of a Council or the doing of anything which is about to be done or is being done by or on behalf of a Council, is causing or is likely to cause injury or annoyance to the public or is against the public interest or to lead to a breach of the peace or is unlawful, wherein he may by order in writing suspend the execution or prohibit the doing thereof. This is being pointed out that for the grievances which the petitioners have made the Act has provided the machinery and those officers are supposed to make inquiry and further pass necessary orders in the public interest or in order to avoid injury to public. And, therefore, these sections provide equally efficacious remedy under the law. As a result of these provisions, the Civil Court's jurisdiction under section 9 impliedly stands excluded. Apart from this these being equally efficacious remedies in view of the provisions of section 4(h), the plaintiffs are not entitled for a relief of prohibitory or mandatory injunction as claimed and thus the suit is not tenable in law. In fact on a proper scrutiny it will be evident that the nuisance or wrongful act which have been pointed out by the plaintiffs-respondents are of such a nature that they are not likely to affect or affecting the public, and therefore, the suit under section 91 was not competent. What I find that such a suit should not have been entertained by the Civil Court. The suit is based on misconception of public interest litigation. However, the trial Court should have curtailed filing of suchsuits instead of encouraging such suits. I, therefore, hold that the suit was not maintainable and was not within the jurisdiction of the Civil Judge.
9. Before parting with the judgment, a reference is required to be made to the fact that the Civil Judge has given permission under section 91 of the Act. The said application Exh. 11 was produced before this Court. It is alleged in the said application that this misadministration causes a public nuisance which affect the public in general, and therefore, the permission may be granted. Surprisingly, the Court has passed one word order viz. 'Allowed' and the suit has been entertained on the basis of such a cryptic one word order. In fact when the law contemplates that such a suit to be instituted on a leave being granted by the Court to institute such a suit, the law enjoins a duty on the Court that such a power should be exercised judiciously and not in arbitrary manner as has been exercised in the present matter. In fact the Court should have passed a reasoned order so that it would have been known to this Court and/or the parties as to why the permission has been granted by the Court to institute such a suit. And, therefore, the courts, hence-forth will take notice that while granting permissions and/or leave under section 91, the Court shall pass a reasoned order instead of passing one word order which does not show application of mind and renders the order as arbitrary one. Any power, if not exercised judiciously and with reasons, renders the said order into arbitrary one and liable to be struck down and therefore the very permission which has been granted to institute the suit under section 91 of the Act is hereby struck down and the suit filed by the plaintiff is hereby returned.
In the result, the Civil Revision Application is allowed. Rule made absolute accordingly. In the facts and circumstances of the case there shall be no order as to costs.
10. Application allowed.