2. RULE. Rule made returnable forthwith.
3. The point which arises for consideration in this petition is:
'Whether, after promulgation of the Maharashtra Ordinance No. 04/2018 on 25/01/2018, an application under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short 'the Act of 1965') at the behest of the private person is maintainable.'
4. The facts on record are:
The petitioner – Firm is in the business of meat supply and export. With an intent to start modern slaughter house, the petitioner purchased the land admeasuring about 17131.40 sq. mtrs at Village Babulkheda, Tahsil Balapur, Dist. Akola and then submitted an application under Section 44 of the Maharashtra Regional and Town Planning Act, 1966 (for short 'the Act of 1966') seeking permission for development on the said land. This application was submitted to the respondent no. 3 – Municipal Council. The Municipal Council referred the application / proposal of the petitioner to the Town Planning and Assessment Department Branch Office, Akola. By the communication dated 28/04/2016, the office of the Town Planning and Assessment Department, Akola recommended that permission sought by the petitioner for construction of a unit for preservation of meat, canning, processing of meat and similar foods like fruits and vegetable plants can be granted subject to the conditions as mentioned in that communication. This communication further states that the petitioner can be permitted to carry on the activities of deboning, slaughtering and holding area. Inspite of the recommendation by the Town Planning and Assessment Department, the Chief Officer, Municipal Council informed the petitioner that the land on which the petitioner proposed to start its unit was in the residential area and therefore, the application / proposal submitted by it for development on that land cannot be granted. This communication was challenged by the petitioner under Section 47 of the Act of 1966 in appeal before the Director of Town Planning, Pune. By the order dated 21/10/2016, this appeal was dismissed. The proprietor of the petitioner – Firm approached this Court in W.P. No. 132/2017 which came to be allowed by the judgment dated 06/12/2017. This Court found that the Municipal Council had not considered the relevant aspects and the application / proposal of the petitioner was rejected without granting an opportunity to the petitioner to putforth his case. This Court remitted the matter to the Chief Officer, Municipal Council for considering the application/ proposal of the petitioner afresh. The Chief Officer, Municipal Council reconsidered the proposal and by the communication dated 15/19.01.2018 granted permission to the petitioner for development as per the application / proposal submitted by it. The Chief Officer, Municipal Council recorded that the Municipal Council had already passed the resolution on 30/05/2016 in favour of the petitioner. This No-objection issued by the Chief Officer, Municipal Council came to be challenged by the respondent no. 5 before the Collector under Section 308 of the Act of 1965 on 07/03/2018. The learned Collector, exercising the powers under Section 308 of the Act of 1965 has allowed the application filed by the respondent no. 5 and has suspended the execution of the communication / No-objection issued by the Chief Officer, Municipal Council. Being aggrieved by the order passed by the Collector, the petitioner has filed this petition.
5. Earlier Section 308 of the Act of 1965 read as follows:
'(1) If, in the opinion of the Collector, the execution of any order 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 public interest or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof.
(2) When the Collector makes any order under his signature, he shall forward to the Council affected thereby a copy of the order, indicating therein the reasons for making it and also submit a report to the Director, along with a copy of such order.
(3) Within [thirty days] from the receipt of such order of the Collector, the Council shall, if it so desires, forward a statement to the Director indicating therein why the order of the Collector should be rescinded, revised or modified. If no such statement is received by the Director within time, the Director shall presume that the Council has no objection if the order of the Collector is confirmed.
(4) On receipt of such report from the Collector and the Council's statement referred to in subsection (3), if any, the Director may [within a period of six months, from the receipt of such report or within such period beyond six months as may, on the request of the Director, be extended by the State Government,] rescind the order or may revise or modify or confirm the order or direct that the order shall continue to be in force with or without modifications.
Provided that, the Director shall take into account the statement of a Council, if received, before such an order is made by him.'
Section 308 of the Act of 1965 is amended by Section 15 of the Maharashtra Ordinance No. 04/2018 and then by the Maharashtra Act No. XXV/2018.
After the amendment on 25/01/2018, Section 308 of the Act of 1965 reads as follows:
'(1) If the Council or any Committee resolves contrary to provisions of this Act or any other law, or rules, byelaws, or the Government directions, then it shall be the responsibility of the Chief Officer to send it to the Collector for suspension of execution of such a resolution or prohibition of doing thereof, within the period of three days from the receipt of the said resolution. The Collector shall decide on such proposal within the period of thirty days from the date of receipt of such proposal. If it remains undecided within the said period, then the Collector shall submit the report thereof to the Director within ten days and the decision of the Director thereon shall be final. In such case, appeal against the order of the Director shall lie to the State Government.'
On the plain reading of Section 308 of the Act of 1965 (as amended), it is clear that private person cannot approach the Collector under Section 308 of the Act of 1965 to challenge any resolution of the Municipal Council or any committee of the Municipal Council. As per the amended provisions, only the Chief Officer can point out to the Collector that any resolution passed by the Municipal Council or any of its committee is contrary to the provisions of the Act or any other law, rules, byelaws or Government directions.
6. The respondent no. 5 filed the application before the Collector on 07/03/2018 i.e. much after Section 308 of the Act of 1965 came to be amended. The learned Collector has failed to take note of the amended provision and has exercised his jurisdiction under Section 308 of the Act of 1965 on a complaint / application made by a private person, which is not permissible as per the amended provision.
7. Various submissions are made by the learned advocates for the respective parties and by the learned GP. One of the issue raised at the time of hearing is that the slaughter house cannot be permitted in R2 Zone as per the Development Control Regulations (DCR). Though this submission raised on behalf of the respondents cannot be considered in this petition as the impugned order passed by the Collector is without authority and jurisdiction and is liable to be set aside on that count alone, I have examined the legality of the submission prima facie.
Chapter XX of the Act of 1965 deals with all the relevant aspects relating to the markets, slaughter houses, trades and occupations. Section 226 of the Act of 1965 provides the power with the Municipal Council to provide and maintain the municipal markets and slaughter houses. Section 267 of the Act of 1965 permits the private markets and the slaughter houses however subject to the condition that the license is granted for it by the Municipal Council. Section 267 of the Act of 1965 permits the establishment and running of the private slaughter houses within the Municipal limits subject to condition that the license is granted by the Municipal Council for it. Section 268 of the Act of 1965 permits the establishment of the slaughter houses beyond the municipal area.
In the face of the provisions referred earlier, the submission made on behalf of the respondents that the petitioner cannot be permitted to construct a unit with the facility of the slaughter house, in R2 Zone cannot be accepted as such prohibition is not pointed out by the respondents under the DCR. Furthermore, none of the respondent has been able to point out that the slaughter house can be permitted in some particular zone as per the DCR.
8. In view of the above, I find that the order passed
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by the Collector is unsustainable and has to be set aside. Hence, the following order is passed: ORDER a) The impugned order passed by the Collector, Akola is set aside. b) The application filed by the respondent no. 5 before the Collector under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 is dismissed. The learned advocate for the petitioner has pointed out that none of the residents of Babulkheda and even Balapur have any grievance and the complaint is made by the respondent no. 5 who is the resident of Akola which is at a distance of about 40 kilometers. In the facts of the case, the respondent no. 5 is directed to pay costs of Rs. 1,00,000/- (Rs. One Lakh) to the petitioner. The respondent no. 5 shall pay the amount of costs by demand draft and produce receipt of it on record of this writ petition within one month. Rule is made absolute in the above terms.