Gundappa Vs. Divisional Commissioner

Gundappa vs Divisional Commissioner

Disposition Petition allowed Court Karnataka Decided Feb 10, 1995

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Citation: sooperkanoon.com/385322
Court: Karnataka High Court
Judge: Eswara Prasad, J.
Decided On: Feb 10, 1995
Case Number: W.P. No. 14469 of 1985
Subject: Constitution
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

KARNATAKA MUNICIPALITIES ACT, 1964 (Karnataka Act No. 22 of 1964) - Section 306 - Deputy Commissioner may suspend order or resolution of Municipal Council & forward copy to Government & Commissioner - Government, not Divisional Commissioner, to pass orders thereon.;A reading of Sub-section (2) of Section 306...

Key legal issue: Constitution
Outcome / disposition: Petition allowed
Acts & sections: Karnataka Municipal Act, 1964 - Sections 306 and 306(2)

Parties & Advocates

Appellant / Petitioner

Gundappa

Advocate Basavaprabhu, Adv. for ;Mahabaleshwar Goud, Adv.

Respondent

Divisional Commissioner

Advocate K. Nagaraj, HCGP for R-1 and R-2 and ;M.S. Purushothama Rao, Adv. for R-4

Legal References

Acts: Karnataka Municipal Act, 1964 - Sections 306 and 306(2)
Reported In: 1995(4)KarLJ646

Excerpt

.....act would show that the deputy commissioner who makes an order under sub-section (1) shall forward a copy of the same with statement of reasons to the government and to the commissioner. it is the government alone that has the power to rescind the order or to direct that it shall continue in force with or without modification the divisional commissioner is only entitled to receive a copy of the order and he has no power to take any decision thereon- it is the government alone that has to pass appropriate orders. - sections 64 & 70: [n. kumar & b. sreenivasa gowda, jj] payment of gratuity to employee of co-operative society on retirement - initiation of disciplinary action withholding of gratuity held, proceedings have been initiated under section 64 of the act. in the said proceedings the authorities want to find out who are all the persons on whom the liability could be fastened. it is in that contest they have issued an endorsement that till the enquiry is over and liability is fixed, it is not possible for them to make any payment towards the amount claimed by the appellant. the proceedings were initiated much prior to the appellant condition, namely subject to the proceedings initiated under section 64. the question whether the appellant is involved in any misfeasance for which proceedings are already initiated, whether the monies which are legitimately due to the appellant could be withheld in the manner it is done, are all matters which can be gone into after recording of evidence. it is in that context, the single judge held when alternate remedy is available under the act, it is not proper to entertain the writ petition. no error is committed by the single judge in passing the impugned order. .....as made without jurisdiction.2. learned counsel for the petitioner submitted that the divisional commissioner had no power to sustain the resolution of the municipal council under section 306(1) of the act. he further contended that under sub-section (2) of section 306 of the act it shall be in the discretion of the government to rescind the order of the deputy commissioner or to direct that it shall continue in force with or without modification. he, therefore, contends that the divisional commissioner had no jurisdiction either to rescind, modify or confirm the order of the deputy commissioner and the impugned order is liable to be quashed.3. section 306 of the act reads as follows:-'306. deputy commissioner's power of suspending execution of orders, etc., of municipal councils:-(1) if, in the opinion of the deputy commissioner, the execution of any order or resolution of a town municipal council, or the doing of anything which is about to be done or is being done by or on behalf of a town municipal council, is unlawful or is causing or is likely to cause breach of the peace, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof.(2) when a deputy commissioner makes any order under this section, he shall forthwith forward to government and to the commissioner and to the municipal council affected thereby a copy of the order, with a statement of the reasons for making it; and it shall be in the discretion of the government to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit;provided that no order of the deputy commissioner passed under this section shall be confirmed, revised or modified by the government without giving the municipal council, a reasonable opportunity of showing cause against the said order'.from a reading of sub-section (1) it is to be seen that if the deputy commissioner is of the opinion that the.....

Full Judgment

ORDER

Eswara Prasad, J.

1. The petitioner is aggrieved by the action of the 3rd respondent in cancelling the licence granted in his favour for the construction of the building. The petitioner filed an application before the 2nd respondent Deputy Commissioner under Section 306 of Karnataka Municipalities Act, 1964. The 2nd respondent entertained the same and by his order at Annexure-C held that the petitioner was in exclusive possession of the property from 1977-78 to 1984-85 and therefore the 3rd respondent Municipal Council was in error in cancelling the licence granted in favour of the petitioner. Consequently, he allowed the petitioner's application and forwarded the matter to the Government for confirmation as required under Section 306(2) of the Act. The Divisional Commissioner, assuming jurisdiction under Section 306(2) of the Act, rescinded the order of the Deputy Commissioner and the said order is impugned in this Writ Petition as made without jurisdiction.

2. Learned Counsel for the petitioner submitted that the Divisional Commissioner had no power to sustain the resolution of the Municipal Council under Section 306(1) of the Act. He further contended that under Sub-section (2) of Section 306 of the Act it shall be in the discretion of the Government to rescind the order of the Deputy Commissioner or to direct that it shall continue in force with or without modification. He, therefore, contends that the Divisional Commissioner had no jurisdiction either to rescind, modify or confirm the order of the Deputy Commissioner and the impugned order is liable to be quashed.

3. Section 306 of the Act reads as follows:-

'306. Deputy Commissioner's power of suspending execution of orders, etc., of Municipal Councils:-

(1) If, in the opinion of the Deputy Commissioner, the execution of any order or resolution of a town municipal council, or the doing of anything which is about to be done or is being done by or on behalf of a town municipal council, is unlawful or is causing or is likely to cause breach of the peace, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof.

(2) When a Deputy Commissioner makes any order under this section, he shall forthwith forward to Government and to the Commissioner and to the municipal council affected thereby a copy of the order, with a statement of the reasons for making it; and it shall be in the discretion of the Government to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit;

Provided that no order of the Deputy Commissioner passed under this section shall be confirmed, revised or modified by the Government without giving the municipal council, a reasonable opportunity of showing cause against the said order'.

From a reading of Sub-section (1) it is to be seen that if the Deputy Commissioner is of the opinion that the execution of any resolution of a town municipal council is unlawful, he may, by order in writing, suspend the execution or prohibit the doing thereof.

4. In KALEERIAH v. STATE OF MYSORE 1974 (2) KLJ Sh. N. 106, this Court has held that issue of a building licence by the Chief Officer of the Municipal Council is as a delegate of the Municipal Council and the order granting a building licence can be suspended by the Deputy Commissioner under Section 306. It is therefore clear that the Deputy Commissioner had jurisdiction to pass the order at Annexure-C.

5. A reading of Sub-section (2) of Section 306 of the Act would show that the Deputy Commissioner who makes an order under Sub-section (1) shall forward a copy of the same with statement of reasons to the Government and to the Commissioner. It is the Government alone that has the power to rescind the order or to direct that it shall continue in force with or without modification. The Divisional Commissioner is only entitled to receive a copy of the order and he has no power to take any decision thereon. It is the Government alone that has to pass appropriate orders. In that view of the matter, the impugned order has to be held as void without jurisdiction and is accordingly quashed.

6. In as much as the order of the Deputy Commissioner requires to be considered by the Government for the purpose of rescinding the same or to keep it in force with or without modification, the Government should take action in accordance with Sub-section (2) of Section 306 of the Act and the Proviso thereto and pass necessary orders.

7. The Divisional Commissioner is directed to forward a copy of the order of the Deputy Commissioner to the Government for necessary action in accordance with Sub-section (2) of Section 306 of the Act.

8. With the above directions the Writ Petition is allowed.

Same Court & Year Karnataka · 1995 Same Parties Gundappa vs Divisional Commissioner Same Subject Constitution Same Judge Eswara Prasad, J. Acts & Sections Karnataka Municipal Act, 1964 - Sections 306 and 306(2)

Constitution