Rama Jois, J.
1. In this writ Petition, petitioners, who are 10 in number, have questioned the legality of the carder of the Divisional Commissioner, Bangalore Division, Bangalore, dismissing their petitions presented under Section 303 of the Karnataka Town Municipalities Act, 1964 (the 'Act' for short).
2. The facts of the case in brief are as follows -
Land in Sy.No. 51 of Siddlaghatta Town was acquired by the Government for the benefit of Municipality for the purpose of converting the land into house sites. On 26-8-1964 the Town Municipal Council resolved to dispose of the sites at upset price of Re. One per square yard in favour of number of persons. A report about the resolution was also sent to the Deputy Commissioner on 6-12-1984. A petition was presented to the Divisional Commissioner by some of the residents of the Town stating that the sites had been disposed of in favour of the relatives of the Municipal Councillors and also to persons belonging to the party of the Councillors. The said petition was forwarded to the Deputy Commissioner on 304-1965. The Deputy Commissioner, Kolar in turn by his letter dated 24th March, 1965 called upon the Assistant Commissioner, Chickballapur, to submit a report after making enquiry. The Assistant Commissioner after enquiry reported that according to the complainants, six of the allotees were deserving but the rest were either relatives or members of the party, of the Municipal Councillors concerned. Relying on the said report, the Deputy Commissioner made an order (Ex.N), setting aside the allotment of 10 sites in favour of the petitioners and directing the Municipal Council to sell the said sites in public auction. The petitioners were not parties to the said proceedings.
3. After the above order was made, a public notice dated 23-12-1974 was issued by the Chief Officer of the Municipal Council (Ex.O) proposing to dispose of the sites by public auction on 9-1-1975. Immediately thereafter, the petitioners presented a petition before the Divisional Commissioner against the holding of auction under Section 303 of the Act. That application was rejected by the Divisional Commissioner stating that the petition was not maintainable (vide Annexure-Q). Aggrieved by the said order, the petitioners have presented this Writ Petition.
4. The grounds urged before the Divisional Commissioner for interfering with the auction sale of the sites which had already been allotted to the petitioners by the Municipal Council were as follows :
(i) As the sites had already been allotted by the Municipal Council, it had no authority to sell the sites.
(ii) The auction to sell the sites which had already been granted to the petitioners was in violation of rules of natural justice.
(iii) The Municipal Council had no power to sell the sites by auction unless it was backed by a resolution of the Council, in view of Section 72 of the Act.
(iv) The order of the Deputy Commissioner pursuant to which the action was taken to auction the sites was itself violative of rules of natural justice.
5. The order of the Divisional Commissioner on the said petition reads :
'The petitioners are hereby informed that the petition is rejected as the same is maintainable before this Court.'
The question for consideration is whether the Divisional Commissioner was right in rejecting the petition as not maintainable ?
Section 303 of the Act under which the petition was presented reads :
303. CHIEF CONTROLLING AUTHORITY:
'The Commissioner shall subject to the control and orders of the Government, by the chief controlling authority in respect of all matters relating to the administration of this Act and for that purpose may exercise all powers necessary in that behalf'.
The above Section constitutes the Divisional Commissioner as the Chief Controlling Authority for the Municipal Councils within the respective divisions. Subject to the control and orders of the Government, he could exercise all powers necessary for the proper administration of the Act. Under the said power, therefore, the Divisional Commissioner was competent to examine as to whether the auction of the sites by the Municipal Council on 9-1-1975 which in turn was made pursuant to the order of the Deputy Commissioner was legal and valid.
6. Sri Somayaji, learned Counsel for the respondents however submitted as follows :-
The only power the Divisional Commissioner had was under Section 322 of the Act, but in exercise of that power he could call for and examine the legality of any of the proceedings under the Act of any subordinate officer and after such enquiry as deemed fit by him he could pass an appropriate order. But, in the present case, the action taken was by the Municipal Council and the Divisional Commissioner had no power under Section 322 to interfere with the action of the Council as it was not a subordinate officer to the Divisional Commissioner. What the Divisional Commissioner could not do under Section 322, he could not also do under Section 303 of the Act. Under Section 306, the Divisional Commissioner had the power to interfere with the actions of the City Municipal Council only. In the present case, it was the Town Municipal Council, which had decided to sell the site. Therefore, the Deputy Commissioner alone had the power to interfere with the resolution of the Municipal Council. In fact the Deputy Commissioner had interfered with the Resolution of the Municipal Council alloting the sites to the petitioners. The Divisional Commissioners had no jurisdiction to interfere with the order of the Deputy Commissioner.
7. If the order of the Deputy Commissioner effecting the resolution of the Town Municipal Council had been made under Section 306 of the Act, certainly the Divisional Commissioner would not have the power to interfere with the order of the Deputy Commissioner either under Section 303 or under Section 322 as the Section 306 is a special provision. The wading of Section 306 indicates that the power available to the Deputy Commissioner under that provision is only to suspend the execution of a resolution of a Municipal Council, which is considered illegal by the Deputy Commissioner and make a report to the Government. It is for the Government to pass a final order either confirming or cancelling the order of the Deputy Commissioner. In the present case, the Deputy Commissions had not exercised his power under Section 306 of the Act. He did not suspend the resolution of Town Municipal Council and had not made a report to the State Government. The Deputy Commissioner has not specified the provision under which he had exercised the power and the Government Advocate was also unable to point out to the provision under which he had or could have, made the order. But there can be no doubt that the order will not made under Section 306 because that Section only empowers the making of an order suspending the resolution of a Municipal Council and not setting aside the resolution of a Municipal Council.
8. If the order of the Deputy Commissioner was without authority of law then the Divisional Commissioner had the necessary power to set aside such an order either in exercise of his powers under Section 303 or in exercise of his revisional power under Section 322 of the Act. In the present case, though the petitioners in their petition before the Divisional Commissioner made a grievance against the auction held by the Municipal Council of the sites, which had been disposed of in their favour 10 years before, the last paragraph of the Petition, unmistakably indicates that their grievance was also against the order of the Deputy Commissioner, pursuant to which the auction was held on 9-1-1975. The Deputy Commissioner being a subordinate officer to the Divisional Commissioner, the Divisional Commissioner could examine the legality of the order of the Deputy Commissioner which was not one falling under Section 306, in exercise of his powers under Section 322 of the Act. Similarly, under Section 303, in exercise of his power as the Chief Controlling Authority also he could examine as to whether the auction of the sites on 9-1-1975 which had been allotted to the petitioners by the Municipal Council in the year 1964 was lawful. In the circumstances, the impugned order of the Divisional Commissioner cannot be sustained. Accordingly, I make the following -