CITY MUNICIPAL COUNCIL, MANDYA v. STATE OF MYSORE — 1974 DIGILAW 128 (KAR)

( 1 ) PETITIONER is the City Municipal Council, Mandya, which I shall call it as 'the Council'. Respondent 1 is the State of Mysore. The State by the order impugned in this writ petition, directed the Council to hand over possession of the Municipal sites Nos. 6 and 7 situate at Mandya town to respondant 3. It is the contention of the Council that the State Govt. have no authority to compel it to part with the possession of- the said sites. The validity of the contention requires to be determined on the following facts: ( 2 ) RESPONDENT 3 was originally the owner of 11 guntas of land in S. No. 1999 at Mandya Town. The Council wanted that land and so at its request, respondent 3 transferred the same by a deed of conveyance dt. 5-12-1964 for no consideration. Instead, it is said that it was greed that the council should grant a building site in favour of respondent 3. Accordingly by a Resolution dt. 9-2-1966 a site bearing No. 17 at Mandya Town was granted free of cost to respondent 3 and he was also put in possession of the said site. ( 3 ) IN the year 1970 there was a further request from respondent 3. He asked for some more land in consideration of the land transferred by him by the deed dt. 5-12-1964. The Council acceded to his, request and by its resolution dt. 3-10-1970 resolved that sites Nos. 6 and 7 shall be granted to him. As usual the Chief Officer of the Council by his letter dt. 2andh June, 1970 requested the Dy. Commr. to obtain the previous approval of the govt. for the said sanction of the sites as required under S. 72 (2) of the karnataka Municipalities Act 1964, hereinafter called the Act. On the said request, the Govt. by their order dt. 7-4-1971 accorded their approval for the grant of sites Nog. 6 and 7 in favour of respondent 3. ( 4 ) BEFORE the Government accorded their approvaj, some more developments took place in the Council. The Resolution parsed by the Council on 3-10-1970 was communicated to respondent 3 on 5-10-1970. The Council met on 25-11-1970. The procedure of the meeting of tha Council is to read and confirm the Resolution passed in its previous meeting. ( 4 ) BEFORE the Government accorded their approvaj, some more developments took place in the Council. The Resolution parsed by the Council on 3-10-1970 was communicated to respondent 3 on 5-10-1970. The Council met on 25-11-1970. The procedure of the meeting of tha Council is to read and confirm the Resolution passed in its previous meeting. But on 25-11-1970 the Hesolution parsed on 3-10-1970 was not read, meaning thereby that the council had a second thought in respect of the grant of sites to Respt. 3. In the meantime the previous approval of the Govt. for the grant of the sites to respondent 3 was communicated to the Council. But the Council did not thereafter pass any Resolution granting the sites Nos. 6 A 7 to respondent 3. Nevertheless respondent 3 moved the Divl. Commr. with a request to direct the Council to put him in possession of the said sites. His contention was that the said sites were already granted to him by the Resolution dt. 3-10-1970 and he has a right to take possession On 4-6-1971 the council passed another Resolution stating that respondent 3 was already given a site No. 17 and he need not be granted additional sites and the govt. may be approached for the cancellation of its sanction for the grant of sites Nos. 8 and 7. The Divl. Commr, however. made an order dt. 8-5-72 directing the Council to hand over possession of the sites Nos. 6 and 7 to respondent 3 against the said order, the Council preferred a revision petition before the State Govt. under S. 322 of the Act. The Govt. while dismissing the petition, has directed the" council to put the sites Nos. 6 and 7 in the possession of respondent 3 The operative portion of the order, reads:" The Govt. in their order dt. 7-4-1971 have sanctioned the sites bearing Nos. 6 and 7 of mandya Town in favour of the 2nd respondent and that is accomplished fact that a right created in favour of the 2nd respondent. The question arises whether the Govt can disturb the rights already confirmed on the 2nd respondent at this distance of time. This can be answered in the negative. 6 and 7 of mandya Town in favour of the 2nd respondent and that is accomplished fact that a right created in favour of the 2nd respondent. The question arises whether the Govt can disturb the rights already confirmed on the 2nd respondent at this distance of time. This can be answered in the negative. The Municipal Council should not have resorted to the delaying tactics in handing over the possession of the sites to the 2nd respondent, without going to the question whether the 2nd respondent has taken advantage of this and made money out of this. Govt. confine purely to the legal aspects of the issue, and dismiss the petition filed by the municipality and direct the- Municipality should hand over posession of the sites immediately without giving room for postponement, (By order and in the name of the Governor of Mysore)"the above order has been challenged by the Council in this petition under Articles 226 and 227. ( 5 ) IT was urged for the petitioner that sites Nos. 6 and 7, have not been granted to respondent 3 in accordance with Sec. 72 of the Act and in the absence of a valid grant, respondent-3 cannot as a matter of right claim the possession cf the sites, nor the Govt. could compel the Council- to part with the possession thereof. Counsel feir respondent 3 contended that the resolution of the Council dt. 3-10-1970 resolving to grant the said sites to respondent 3 became a valid grant with the Govt's approval made on 7-4-1971, in order to appreciate) the contentions, it is necessary to examine what exactly is the power of the Council in granting or otherwise disposing of its propeirties. That power is circumscribed by the provisions of S. 72 of the Act. The Section so fay as it is relevant provides" 72. Competency of Municipal Council to lease sell and contract. (1) Subject to the conditions and restrictions contained in sub- sees. (2) to (9), and such other restrictions and conditions as the goyt. may by general or special orders specify, eyery Municipal council shall be competent to lease, sell or otherwise transfer any moveable or immoveable property which belongs to, or for the purpose of this Act has been acquired by it. (2) to (9), and such other restrictions and conditions as the goyt. may by general or special orders specify, eyery Municipal council shall be competent to lease, sell or otherwise transfer any moveable or immoveable property which belongs to, or for the purpose of this Act has been acquired by it. and so far as is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said, provisions and purposes. (2) No free grant of immoveable property whatever may be its value, no grant for an upset price and no lease for a term exceeding five years and no sale or other transfer of immoveable property exceeding two thousand rupees in value shall be valid unless the previous sanction of the Government is obtained. (3) In the case- (a) of a lease for a period exceeding one year or of a sale or other transfer, or contract for the purchase of any immovable property, (b) of every contract which will involve expenditure not covered by a budget grant, (c) of every contract the performance of which cannot be completed within the official year current at the date of the contract, the sanction of the Municipal Council by a resolution passed at a general meeting is required. * * * * *"s. 72 (1) preserves the right of the Council to grant, lease, sell or otherwise transfer any of its movable or immovable property subject to the restrictions and conditions as the Government may by general or special orders specify in that behalf. But the power to dispose of immovable property is further restricted by the provisions of sub-sec. (2 ). It provides that the Council cannot make a free grant of immovable property of whatever its value or grant for an upset price or lease fof a term exceeding five years, without obtaining the previous sanction or approval of the Govt. Likewise the Council has no power to dispose of any immorable property of the value exeeding Rs. 2,000 by sale or other transfer without the previous approval of the Govt Sub-sec. Likewise the Council has no power to dispose of any immorable property of the value exeeding Rs. 2,000 by sale or other transfer without the previous approval of the Govt Sub-sec. (3) provides that the Council should pass a, Resolution at its general meeting sanction the sale or other transfer of any immovable property On reading these provisions, it becomes clear, that the previous approval of the Govt. for making a grant of immovable property either free of cost or at an upset price is a condition precedent without which the grant would become invalid What is required under the sub- sec. (2), is the prior approval of the Govt and not the subsequent approval. The Council, therefore, cannot grant any of its immovable property subject to the sanction of the Govt. That is the mandate of S. 72 which the government and the Council are bound to follow. ( 6 ) LET me now see whether respondent 3 was granted sites Nos. 6 and 7 in Accordance with the above provisions. On 3-10-1970 the Council passed a Resolution that the said sites shall be granted to respondent 3 and possession thereof should be delivered to him. The Council by then had no prior approval of the Govt. for grating the said sites. It was only on 7-4- 1971 the Govt. granted their sanction. Therefore, whatever be the wordings of the resolution dt. 3-10-1970, it could not be regauded as an ou--right grant of the sites to respondent 3 as the Council was incompetent to make that grant without obtaining the previous approval of the Govt. In the context, the said Resolution of the Council, could be construed only as a proposal to grant and that proposal could not confer any enforceable right on respondent 3. The Govt. , therefore, was in error in directing the Council to put respondent 3 in possession of the said sites. By leading the impugned order, it gives an impression that the Govt. proceeded on the assumption that they are the competent authority to grant the sites in question that is clear from the beginning of the sentence in the operative portion of the impugned order which reads :" The Government in their order dt 7-4-1971 have sanctioned the sites bearing Nos. proceeded on the assumption that they are the competent authority to grant the sites in question that is clear from the beginning of the sentence in the operative portion of the impugned order which reads :" The Government in their order dt 7-4-1971 have sanctioned the sites bearing Nos. 6 and 7 of Mandya Town in favour of the 2nd respondent and that is accomplished fact that a right created in favour of the 2nd respondent. "it must be stated that the Govt. are not the competent authority to grant or dispose of the Municipal sites. They could grant only prior approval for the grant or otherwise to dispose of the Municipal property. Mere sanction of the Govt. does not confer any right on respondent 3 unless it is followed by an appropriate resolution granting the sites. Even after the prior approval of the govt. , it may be open to the Council to grant or not to grant the sites to respondent 3. In fact, in the instant case, the Council met on 4 10-1971 and passed a resolution expressing their unwillingness to grant the sites to respondent 3 and accordingly the Council made a request to the Government to cancel their sanction In these circumstances, the govt. cannot command the Council to hand over possession of the sites to respondent 3 on whom there was no right conferred by the Resolution of the Council dt 3-10-1370 The impugned order of the Govt. is therefore clearly illegal and liable to he quashed. ( 7 ) IN the result, the petition is allowed and the impugned order of the govt. is hereby quaghed. In the circumstances. I make no order as to costs. --- *** --- .