A. K. MATHUR J. - (1.) BOTH these writ petitions involve common questions of law and facts as such they are disposed of by this common order.
(2.) FOR the convenient disposal of these writ petitions, the facts given in the case of Vikram Singh vs. The Collector, Jodhpur & anr. S. B. Civil writ Petition No. 1107/1981) are taken into consideration. The petitioner by this writ petition has prayed that by an appropriate writ, order or direction the order passed by the Collector, Jodhpur dated 16. 3. 1981 (Annex. 3) as well as the proceedings initiated by respondent No. 2 Administrator, Municipal Council, Jodhpur by way of appeal-cum-application under Section 283/285 of the Rajasthan Municipalities Act, 1959 (referred to hereinafter as 'the Act of 1959') before the Collector, Jodhpur may be quashed. The petitioner applied to the Commissioner, Municipal Council, Jodhpur for grant of a permission to raise construction on the pattasud chabootri of the Haveli of the petitioner known as Pokaran-ki-Haveli, Jodhpur on 2. 2. 1981. After obtaining comments from the Overseer and the Assistant Engineer, the Secretary, who was performing the functions of the Municipal Council, Jodhpur granted permission on 13. 2. 1981 to the petitioner for raising the construction over this Chabootri. Against the aforesaid permission for construction one appeal was preferred by the Legal Assistant, Municipal Council, Jodhpur before the Administrator, Municipal Council, Jodhpur. Similarly, the Administrator, Municipal Council, Jodhpur also moved an application/appeal under Section 283/285 of the Act of 1959 read with sub-section 12 of Section 170 and prayed that the aforesaid permission dated 13. 2. 1981 be qusahed. It is submitted that the grounds of appeal filed before the Administrator, Municipal Council and the contents of the application/appeal filed by the Administractor before the Collector were the same. The petitioner has filed these two writ petitions one against the application/appeal filed by the Administrator, Municipal Council before the Collector i. e. S. B. Civil Writ Petition No. 1107 of 1981 and another writ petition being S. B. Civil Writ Petition No. 680/81 filed against the appeal preferred by the Legal Assistant before the Administrator, Municipal Council, Jodhpur. The principal submission of the learned counsel for the petitioner is that the Administrator cannot file an appeal before the Collector as the Secretary who was officiating as Commissioner has granted permission. Therefore, the Municipal Council on its own cannot file the appeal before the Collector. Mr. Mehta, learned counsel for the respondents submits that an appeal under Section 170 (12) for granting permission lies before the Collector is maintainable. It is submitted that by virtue of Section 3 (8) which defines 'council' and an explanation has been added to this which says that reference in any provision of this Act other than clauses (2) and (15) of this section; subsections (1), (2) and (3) of section 65, 73, 308, 310 and section 311 to a Board or Municipal Board or to a member, officer or servant of a board or a municipal board or to the chairman, vice-chairman or executive officer of a board or a municipal board shall, in the case of a city, be construed as being references respectively to a council or a municipal council or a municipal councillor to the president, vice-president or municipal commission of a councillor or a municipal council unless such construction is repugnant to the subject to context.
(3.) LEARNED counsel submits that by virtue of this explanation the provisions of Section 311 will not be applicable to the Municipal Council. The submission of Mr. Tatia appears to be justified. Since Section 311 will not be applicable to the Municipal Council, therefore, there is no prohibition for the Administrator to file an appeal before the Collector and no appeal shall accordingly lie to the Administrator on the Municipal Council as the case may be. The only option is to file an appeal before the Collector under sub-section (12) of Section 170 of the Act. The appeal has already been filed by the Administrator before the Collector as such the appeal of the Administrator before the Collector under sub-section (12) of Section 170 is maintainable but no appeal is maintainable before the Administrator/council against the permission granted by the Commissioner. Thus, in this view of the matter, the writ petition No. 1107/1981 has no merit and the same is dismissed. However, the writ petition filed by the petitioner being S. B. Civil Writ Petition No. 680 of 1991 against the entertainment of appeal filed by the Legal Assistant before the Administrator is not maintainable as such that writ petition is allowed and the appeal filed by the Legal Assistant before the Municipal council is quashed. Both the parties shall appear before the Collector in the appeal filed by the Administrator. . ;