Jayant Patel, J.
1. The matter is heard finally.
2. The petitioner has preferred this petition for challenging the order passed by the Collector, dated 11.2.02 and its confirmation thereof by the State Govt in exercise of its revisional jurisdiction whereby the construction permission granted to the petitioner was set aside and the matter was remanded to the authority for considering the said question.
3. Heard Mr.Jani for the petitioner and Ms.Pandit, Ld.AGP for respondent Nos. 2,3 & 4, Mr.Bhatt for respondent No.6 and so far as respondent No.5 is concerned he has filed affidavit stating that he has left the matter to the court to decide as it is just and lawful. So far as respondent No.1 is concerned, i.e. Patan Nagapalika, though served nobody has appeared.
4. Upon hearing the learned counsel appearing for the parties, it appears that there is no dispute on the point that the petitioner is the owner of the property and the petitioner applied for permission under section 155 of Gujarat Municipalities Act (hereinafter referred to as "the Act") for construction permission. There is also no dispute on the point that the permission was granted by the Chief Officer of the Municipality. It appears that the respondent Nos 5 and 6 preferred application to the Collector under sction 258 of the Act and ultimately on 11.2.2002 the District Collector has passed the order whereby it is observed by him that as proper permission under section 65 of the Bombay Land Revenue Code (hereinafter referred to as "the Code") is not obtained for using the land for commercial purpose, the permission granted by the Chief Officer is unlawful and therefore the same is set aside and he has directed for reconsideration of the issue and has further directed for restoration of the status prior to the permission was granted. It appears that the petitioner carried the matter before the State Govt by preferring revision under section 264 of the Act and the said revision is also dismissed by the State Govt and the petitioner has approached this court by present petition.
5. It further appears that pending the aforesaid proceedings, action was taken for breach of condition under section 65 of the Code by the District Collector and the orders are passed by the Dist.Collector against which the revision is preferred by the petitioner before the State Govt and the said revision is pending and the interim stay is also granted against the operation of the order passed by the District Collector as per order dated 13.12.2002 passed by the State Govt copy whereof is at annexure "G".
6. Mr.Jani. Ld.counsel appearing for the petitioner raised contention that in a matter of granting permission under section 155 of the Act, the Dist.Collecror should not have entertained the matter under section 258 of the Act since it is not a matter pertaining to any resolution of the Municipality. Mr.Jani also submitted that as per the provisions of the Act there is in-built mechanism in as much as the section authorises the Chief Officer to grant permission and if the permission granted by the Chief Officer is to be modified or to be canclled, power vests with the Municipality and therefore in view of the said express inbuilt mechanism provided under section 155 of the Act, it can not be said that the Collector has jurisdiction to suspend the said permission granted by the Chief Officer of the Municipality under section 258 of the Act and therefore he submitted that the order passed by the Dist.Collecor under section 258 of the Act is without any competence and jurisdiction.
7. Primafacie, the aforesaid contention appears to be attractive, but on close scrutiny, if the provisions of section 258 are considered, it refers to " doing of anything which is about to be done or is being done by or on behalf of a Municipality." Therefore, even it is not directly the action of the Municipality, i.e. the elected body of the Municipality, but if it is an action done on behalf of the Municipality, then also the same would fall within the scope and ambit of section 258 of the Act. The Chief Officer, when he exercises power under section 155 of the Act can be said as functioning on behalf of the Municipality. Whether the general body of the municipality has supervisory control over the functioning of the Chief Officer by inbuilt mechanism under section 155 of the Act or not is a different matter but thereby it can not be said that when the Chief Officer has granted permission for construction he is not exercising power on behalf of the Municipality so as to exclude the jurisdiction of the District Collector under section 258 of the Act. Further, reference may be made to the decision of the Full Bench of this court in the matter of Parshottambhai G. Chavda v. State of Gujarat and Ors. reported in 1998(2) GLR 1048 for applying the well settled principles of interpretation of statutes and more particularly for purposive construction of the provisions of the Act. In the said decision, the Full Bench of this court after extracting the view taken by the Apex Court in case of Life Insurance Corporation of India v. Vishwanath Verma and Ors. reported in JT 94(6) SC 379 has considered that interpretation of section 258 is required to be made which does not lead to injustice or perpetuates injustice and ultimately it was held that under section 258(1) of the Act the Dist. Collector has power to direct restoration of the position ante. Mr.Jani, Ld.advocate for the petitioner made an attempt to submit that the case before the Full Bench pertains to the resolution of the Municipality and it was not pertaining to any action taken by the Chief Officer of the Municipality in discharge of his statutory powers under section 155 and therefore he submitted that the observations made by the Full Bench may not apply to the facts of the present case. It is true that the matter was pertaining to the resolution of the Municipality, but so far as the principles for purposive construction and interpretation is concerned, it would apply even in the facts of the present case. The court while making construction of any statutory provision would make an attempt to give the fullest meaning which may ultimately fulfil the intention of the legislature for making such a provision in the Act. If the matter is examined accordingly, the powers under section 258 of the Act are under Chapter XVI providing for control and powers envisaged under section 258 of the Act are in the nature of controlling power with the Disrict Collector as supervisory authority over the functioning of the Municipality or on behalf of the Municipality. Therefore, also I am inclined to observe that if the exercise of powers under section 155 of the Act by the Chief Officer is excluded from the purview of the section 258 of the Act, the same would frustrate the very purpose of vesting power with the District Collector to supervise the functioning and to prohibit the doing of anything either by the Municipality or on behalf of the Municipality which in the opinion of the Collecor is unlawful. Therefore the distintion sought to be canvassed by Mr,Jani on behalf of the petitioner can not be accepted and in view of principles of purposive costruction also it is required to be held that if the permission has been granted by the Chief Officer of the Municipality under section 155 of the Act it would fall within the scope and ambit of the jurisdiction of the Dist.Collector under section 258 of the Act.
8. Mr.Jani, Ld.advocate for the petitioner also submitted that as such the Dist.Collector while exercising power under section 258 of the Act could not have considered the breach in respect of the provisions of the Bombay Land Revenue Code and he submitted that when the power is exercised under the Act the Dist.Collector could not have considered the breach under other enactments. The said submission of Mr.Jani deserves to be rejected because the language used in the section 258 of the Act is "unlawful" and therefore if the Dist.Collector is of the opinion that any action is unlawful, it may not be under the Gujarat Municipalities Act, but it may be under other laws then also he has jurisdiction to exercise power under section 258 of the Act and it can not be said that the Dist.Collector has exceeded his jurisdiction under section 258 of the Act while considering the breach of the provisions of Bombay Land Revenue Code for permission to utilise the land for commercial purpose.
9. Mr.Jani lastly submitted that the respondent Nos 5 and 6 can not be said to have locus to challenge the permission granted by the Chief Officer under section 155 of the Act because in his submission the respondent No.5 is the Managing Trustee of the adjacent temple and he is the person who is having land in the adjoining area. Such contention of Mr.Jani deserves consideration to the extent that if the granting of permission to the petitioner is not to the prejudice to the respondent Nos 5 and 6 it can be said that the grievance could not have been validly made before the District Collector under section 258 of the Act. However, it is not necessary that in every case when a person approaches for invoking jurisdiction under section 258 of the Act, he may be directly affected and the Dist.Collector may reject application if he finds that there is no prejudice and it is not a case to exercise jurisdiction but thereby it can not be said that the order passed under section 258 would be rendered without jurisdiction even if considered that the respondent Nos 5 and 6 could not validly invoke the jurisdiction of the Dist.Collector under section 258 of the Act. Further, in the present case, the District Collector has exercised jurisdiction and that he has found that there is breach of the provisions of the Code and therefore I find that no useful purpose would be served in finally concluding the said aspect when the jurisdiction is not only invoked but is exercised and has resulted into adverse order to the petitioner I find that such aspect should be kept open.
10. The perusal of the order passed by the Dist.Collector shows that not only the order is cancelled but he has directed for statusquo ante, hence, the basis of order is that there is breach of provisions of the Code of no permission for commercial use. Therefore, it appears that at the most the Dist.Collector could have relegated the petitioner to get permission under section 65 of the Code and thereafter for pursuing the matter for grant of permission for construction. It is not a case where there would be absolute bar for grant of pemission under section 65 of the Code and therefore the petitioner has right to apply under section 65 of the Code for grant of permission and if such permission is granted, the petitioner would be well within his right to pursue for construction in accordance with law and as per the directions which may be issued by the respondent authorities while granting permission under section 65 of the Code. Therefore, if pending the aforesaid procedure the construction which is partly made, is demolished it would result into damage and it would benefit to none. Since there is right with the petitioner to apply under section 65 of the Code for such permission and after such permission is granted the construction already made can be maintained, I find that it was not proper for the Dist.Collector not to order for statusquo ante but he could have ordered for maintenance of statusquo as on the date when the order came to be passed under section 258 of the Act. The aforesaid aspect is also not properly considered by the State Govt while considering the matter in its revisional jurisdiction.
11. In view of the above, I find that the following directions shall meet with the ends of justice:
(i) The petitioner may apply for permission under section 65 of the Code for using the land for commercial purpose in accordance with law.
(ii) The petitioner may make such application within a period of six weeks from today and until the question of permission under section 65 of the Code is finalised, the order passed by the Dist.Collector for maintenance of statusquo ante shall remain in suspension and shall not operate.
(iii) After the permission is granted, the petitioner will be at liberty to pursue the application for granting permission for construction in accordance with law as the matter has been remanded by the Dist.Collector and if such permission is granted the construction already made prior to the order passed by the Collector shall be preserved in accordance with the permission which may be granted by the municipality. If any portion of the construction already made prior to the oder of the Collector is in controvention to the permission which may be granted by the Municipality, the petitioner shall alter the construction and/or demolish the construction within a period of one month from the receipt of such permission from the municipality.
12. The petition is disposed of in terms of aforesaid directions. Rule partly made absolute. Considering the facts and circumstances there is no costs.