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2006 DIGILAW 1050 (PAT)

Municipality Commissioner v. Manu Prasad

2006-11-10

SYED MD.MAHFOOZ ALAM

body2006
Judgment Syed Md.Mahfooz Alam, J. 1. This second appeal has been preferred by the Municipal Commissioner of Sasaram Municipality (defendant-appellant) through its Chairman against the judgment and decree dated 30.4.1990 and 14.5.1990, respectively, passed, in Title appeal No. 61 of 1980 by Sri Laxman Oraon, 5th Additional District Judge, Sasaram confirming the judgment and decree dated 15.4.1980 and 5.5.1980 passed by Sri Rajnath Ram, Ist Additional Munsif, Sasaram in Title Suit No. 152 of 1971 / 91 of 1977 whereby the learned Additional Munsif has been pleased to decree the suit of the plaintiff-respondent. 2. The brief facts of the case are as follows: The original plaintiff Ramdhari Singh filed a title suit before the court of Munsif Ist, Sasaram which was numbered as Title Suit No. 152 of 1971 for declaration that the plaintiff has acquired the status of a permanent lessee by virtue of the resolution passed by Sasaram Municipality on 10.8.1957 and as per its acceptance by the plaintiff vide his petition dated 10.7.1962 in respect of the suit property described in Schedule A of the plaint and for issuing direction to the defendant to execute a deed of formal lease, if necessary, in favour of the plaintiff on such terms as fixed by the court. It has also been prayed that the defendants be restrained permanently from interfering with the peaceful possession of the plaintiff over the suit property. The suit was contested by the defendant-appellant i.e. Municipal Commissioner of Sasaram but the defendant-appellant lost the suit and also the first appeal and thus, tills I second appeal filed by the defendant-appellant is before me. 3. The case of the plaintiff-respondent is that the suit property described in Schedule A of the plaint belongs to Sasaram Municipality. It is situated towards east of Dharmshala Road which road is also known as "Gandhi Path" or "Holiday Road". The nature of the land was Bhit culturable land. The Sasaram Municipality had acquired the said land from its recorded tenant but the same was never put to the use for which it was acquired and Sasaram Municipality started settling the lands to different persons on yearly lease for the purpose of cultivation. The nature of the land was Bhit culturable land. The Sasaram Municipality had acquired the said land from its recorded tenant but the same was never put to the use for which it was acquired and Sasaram Municipality started settling the lands to different persons on yearly lease for the purpose of cultivation. The land was in excess need of Sasaram Municipality and as such Sasaram Municipality by its resolution dated 26.6.1947 decided to lease out the suit land and other lands to persons desirous of constructing pucca house at their own cost and as per the specification given and approved by the Municipality. The plaintiff accepted the proposal and the conditions laid down in the resolution dated 26.6.1947 and thereafter the defendant Sasaram Municipality leased out the suit land to the plaintiff for a fixed period of 15 years. Accordingly, a registered deed was executed on 2.1.1951 / 15.2.1951 and the monthly rental was fixed at Rs. 4.50 paise per month. The lease deed contained a specific clause for renewal of the lease. Similar settlements were made with similar other persons also for different part of the lands. Further case of the plaintiff is that on 28.2.1951 the plaintiff was called upon by Sasaram Municipality and was given an estimate and a shop building plan. The plaintiff was asked to give his consent - whether he was ready to make expenditure to construct the building as per the plan whereupon the plaintiff after acceptance of the proposal gave his consent and agreed to construct building over the land as per plan and accordingly, the plaintiff constructed the building at a cost of Rs. 4000.00 more than the amount estimated in the plan. After construction of the building over the suit land, the plaintiff is running his shop thereon. Further case is that in 1957 the Municipal Commissioners of Sasaram Municipality finding that the land on the side of road was not utilized for which it was acquired, decided to settle all the lands including the suit lands with those previous settles who were desirous of taking the land on permanent settlement. The plaintiff treated the resolution as an offer of defendant No. 1 and as such, he gave a letter of acceptance of the said proposal to the Special Officer, Sasaram Municipality. The letter was acknowledged by Sri Shashi Bhushan Prasad. Clerk of Sasaram Municipality on 10.7.1962. The plaintiff treated the resolution as an offer of defendant No. 1 and as such, he gave a letter of acceptance of the said proposal to the Special Officer, Sasaram Municipality. The letter was acknowledged by Sri Shashi Bhushan Prasad. Clerk of Sasaram Municipality on 10.7.1962. It is stated that the proposal and its acceptance has created a vested right in the plaintiff to have the lease made permanent and the Special Officer also assured the plaintiff to continue in possession of the building in question so long as the deed of permanent lease is not executed. In the meantime, on the basis of the resolution dated 10.8.1957 Sasaram Municipality executed several lease deeds in favour of several lessees making the lease permanent but as Sri Brij Raj Bahadur, the then Chairman of Sasaram Municipality suddenly died and in the meantime Sasaram Municipality was also superseded, as such the permanent lease deed could not be executed in favour of the plaintiff. Further case is that the plaintiff approached the Special Officer, Sasaram Municipality on several occasions for the purpose of execution of permanent lease deed and the Special Officer also assured the plaintiff to wait till the final decision in Title Suit 222 of 1959/100 of 1960 (Ram Kumar Ram V/s. Ram Prasad Ram and Ors.) is pronounced and when the plaintiff came to know that the said suit was finally decided and the validity of the resolution was upheld, then again the plaintiff approached the Special Officer to execute permanent lease deed, who, on one pretext or the other, kept the matter of execution of permanent lease deed hanging and so, necessity of filing of the suit arose. 4. Separate written statements were filed by Sasaram Municipality and by the State of Bihar mostly on common grounds. The case of the defendants is that the suit as framed is not maintainable and is barred by law of limitation, principle of estoppel, waiver and acquiescence and the plaintiffs have got no cause of action for the suit. The statement of the plaintiff that the suit land lying east of Gandhi Path was not required for which it was acquired is incorrect and the fact is that the same is still required for widening of the road. The statement of the plaintiff that the suit land lying east of Gandhi Path was not required for which it was acquired is incorrect and the fact is that the same is still required for widening of the road. It has further been pleaded that the resolution dated 10.8.1957 passed in the meeting of the Municipal Commissioner of Sasaram Municipality was illegal and invalid and it is incorrect to say that Sasaram Municipality vide its resolution made an offer to the plaintiff for permanent settlement of the suit land who accepted the proposal and. submitted his letter of acceptance dated 10.7.1962 which was acknowledged by Sri Shashi Bhushan Prasad, the then Head Clerk of Sasaram Municipality. The notice sent by the plaintiff to defendant No. 1 expressing his desire for renewal of the lease has got no legal sanctity and the same is illegal and void which did not confer any right to the plaintiff. The plaintiff is merely a trespasser in the eve of law and did not acquire a status of permanent lessee by virtue of the resolution dated 10.8.1957 in respect of the suit land which is still required for widening of the road and as such, the prayer has been made to dismiss the suit. 5. From perusal of the judgment of the trial court it appears that the trial court framed as many as 11 issues for determination which are as follows: (I) Whether the suit as framed maintainable? (II) Whether the suit is barred by principle of estoppel, waiver and acquiescence? (III) Whether the suit is barred by limitation? (IV) Whether the suit is properly valued? (V) Whether the Plaintiffs have got valid cause of action? (VI) Whether the resolution dated 10.8.57 passed by Commissioners at meeting of Sasaram Municipality is valid, legal and effective one? (VII) Whether defendant No. 1 had right and authority to settle the land permanently by Mokari lease? (VIII) whether the plaintiffs acquired the right of permanent lessee in Schedule A land and is entitled for a declaration to this effect or to get a permanent Mokari lease for Schedule A land or an acknowledgment admitting his status of permanent lessee executed and registered? (VIII) whether the plaintiffs acquired the right of permanent lessee in Schedule A land and is entitled for a declaration to this effect or to get a permanent Mokari lease for Schedule A land or an acknowledgment admitting his status of permanent lessee executed and registered? (IX) Whether the covenant of renewal of the lease incorporated in the lease deed dated 2.1.51 / 15.2.51 is valid and whether the plaintiffs have exercised their option of the covenant and is entitled for renewal of lease? (X) Whether notices u/s. 377 Bihar and Orissa Act, and under Section 80 C.P.C. have been served on defendants validity and legality? (XI) Are the plaintiffs entitled to any relief or reliefs, if so, to what extent? 6. It transpires that the trial court has considered issue Nos. VI, VII and VIII as the main issues in the case and after making thorough discussion on the abovementioned three issues, the trial court came to the finding that the resolution dated 10.8.57 passed by the Commissioner, Sasaram Municipality was valid, legal and effective one and by virtue of the said resolution, the defendant No. 1 had acquired right and authority to settle the suit land to the plaintiff by way of Mokarari lease. The trial court further held that by virtue of the resolution dated 10.8.1957 the plaintiff had acquired a right of permanent lessee in Schedule A land and as such, the plaintiff was entitled for declaration that he had acquired a right of permanent Mokari lease in Schedule A land and is entitled to set a registered lease 3eed executed in his favour by the defendant No. 1. On the basis of the above finding, the trial court decreed the suit of the plaintiff. 7. From perusal of the judgment of the first appellate court it appears that the learned first appellate court confirmed the finding of the trial court with regard to the validity of the resolution dated 10.8.57 passed by the Commissioner, Sasaram Municipality and on that basis the first appellate court held that the plaintiff has acquired status of a permanent lessee with respect to Schedule A land and is entitled to get a registered deed of lease executed in his favour. 8. 8. From perusal of the record of this appeal it appears that at the time of admission of this appeal, two substantial questions of law were formulated for decision which are as follows: (1) Whether on the basis of the resolution, Exhibit 21, the defendant-Municipality can be directed to execute/register permanent mokarri lease in favour of the plaintiffs? (2) Whether the case of the plaintiffs here stands on the same footing as the plaintiffs of Title Suit No. 152 of 1971? Substantial Question of Law No. I 9 The case of the plaintiff-respondent is based upon the pleading that by virtue of the resolution dated 26.6.1947 Municipal Commissioner of Sasaram Municipality (defendant No. 1) decided to lease out the suit land and other lands to persons desirous of constructing pucca house at their own cost and according to the specification given and approved by the Sasaram Municipality. The plaintiff fulfilled the conditions laid down in the resolution and accordingly, a temporary lease for a period of 15 years was executed on 2.1.51 / 15.2.1951 by the Municipal Commissioner of Sasaram Municipality in favour of the plaintiff on monthly rental of Rs. 4.50 paise per month and during the continuation of temporary lease, the Municipal Commissioner of Sasaram Municipality by resolution dated 10.8.1957 resolved to lease out the suit property on permanent basis and thus, the plaintiff acquired the status of permanent lessee by virtue of the said resolution which is Ext. 21 in this case. 10. It has been submitted by the learned Advocate of the appellant that the resolution dated 10.8.1957 passed by the Municipal Commissioner for settling the excess land on permanent basis to the temporary lessees was merely a policy decision which cannot create any right in favour of the plaintiff for being declared as permanent settle. According to his submission, the status of the plaintiff as a temporary lessee is equal to that of a tenant and any decision of the landlord to sell the tenanted premises cannot change the status of a tenant from tenant to landlord and so, merely by virtue of, the resolution dated 10.8.1957 the plaintiff cannot acquire the status of permanent settle suo motu. Against the said argument of the learned Advocate of the appellant, the learned Advocate of the plaintiff-respondent is that by virtue of the resolution dated 10.8.1957, Municipal Commissioner of Sasaram Municipality had shown their intention to settle the excess land of municipality on permanent Mokarari lease to all the temporary lessees and as such, the said resolution was a proposal on behalf of the Sasaram Municipality to all the temporary settlees to set permanent settlement of the land on fulfilling certain conditions. The learned Advocate submitted, that the plaintiff fulfilled all the conditions laid down in the resolution and cleared the arrears of rent and also filed a petition in the Municipality on 10.7.1962 mentioning that he had accepted the proposal and was ready to abide by all the conditions made in the proposal by way of resolution. The argument of the learned Advocate of the appellant is that since the proposal was advanced on behalf of the Sasaram Municipality and the same was accepted by the plaintiff, as such the contract between the plaintiff and Sasaram Municipality (defendant) is complete and as such, the Sasaram Municipality was bound to execute the permanent settlement deed in favour of the plaintiff. In order to appreciate the contentions raised by both the parties, I feel it necessary to go through the resolution dated 10.8.57. This resolution is Ext.21 in this case. Agenda 10 of the said resolution relates to the passing of the resolution with regard to permanent settlement of Municipal land which is being quoted below. [LOCAL LANGUAGE] 11. From the contents of the resolution it is apparent that in the meeting of 10.8.1957, the Commissioner of Sasaram Municipality had taken a policy decision of general nature that for proper management of the landed property of the Municipality and for fetching sufficient income for the Municipality, the excess land situated by the side of the Holiday road would be given on permanent Mokarari lease on the basis of the recommendation of the then Chairman, Brij Raj Bahadur. There is nothing in the resolution to come to the conclusion that the Municipal Commissioner in the meeting of 10.8.1957 had taken any resolution to settle the suit land with the plaintiff on permanent Mokarari basis. There is nothing in the resolution to come to the conclusion that the Municipal Commissioner in the meeting of 10.8.1957 had taken any resolution to settle the suit land with the plaintiff on permanent Mokarari basis. Thus, I am of the view that the resolution dated 10.8.1957 itself does not entitle the plaintiff to acquire the status of permanent settle suo motu nor this resolution can be termed as a proposal given by the Sasaram Municipality to the plaintiff and upon acceptance of the proposal by the plaintiff, he would have automatically acquired the status of permanent settlee. I further find that there is nothing on record to show that in view of the resolution, any notice was given to the plaintiff inviting him to fulfil certain conditions in order to acquire the status of permanent settlee and in compliance of the notice the plaintiff had performed certain act which can be termed as part performance of the contract. It has been argued by the learned Advocate of the respondent that in compliance of the resolution, the plaintiff-respondent cleared his entire arrears of rent which proves that he had fulfilled the conditions laid down in the resolution. From perusal of the judgment of the trial court as well as the first appellate court it appears that both the courts had considered the payment of arrears of rent by the plaintiff as compliance of the terms and conditions of resolution dated 10.8.57 and termed the same as part performance of contract. I am of the view that both the courts below have committed grave error of law by observing that the payment of entire arrears of rent by the plaintiff was an act done in compliance of the part performance of the contract. This amounts to glorifying the illegal act of the plaintiff as the plaintiff was legally bound to pay monthly rent of the suit premises in time and by withholding the monthly rent, he was defaulter in the eye of law but unfortunately, this illegal act of the plaintiff of non-payment of monthly rent was glorified by the courts below and was considered as part performance of the contract because of the fact that he paid the entire dues to the Sasaram Municipality. It appears from perusal of Exts. It appears from perusal of Exts. 13 13/A, 13/B, and 13/C that the plaintiff is a habitual defaulter and not on one occasion but on several occasion he defaulted in payment of rent of the suit premises to Sasaram Municipality and therefore, even if it is admitted that the plaintiff had cleared all the dues his act of becoming defaulter cannot be legalised. I am, therefore, of the view that the view taken by the courts below that since the plaintiff cleared all the rental dues, as such, this act of the plaintiff should be deemed to be compliance of the resolution dated 10.8.57, is erroneous and not according to law. 12. The learned Advocate of the respondent has submitted that although there is no written agreement between the plaintiff and the Sasaram Municipality (defendant) regarding execution of permanent lease deed but by conduct of the parties it should be held that there was implied contract between the plaintiff and the defendant to give him (plaintiff) the status of permanent settlee. He submitted that both the courts below have held that there was implied contract between the plaintiff and the defendant-Sasaram Municipality to grant status of permanent lessee to the plaintiff which is apparent from the conduct of the parties. 13. In support of his argument that the agreement may be implied from the conduct of the parties, the learned Advocate has placed reliance upon the decision reported in AIR 1966 Allahabad 515 (Ram Kishore, appellant V/s. Ambika Prasad, respondent). He has further placed reliance upon the decision reported in - (Century Spinning & Manufacturing Co. Ltd., and Anr. appellants V/s. The Ulhasnagar Municipal Council and Anr., respondents). But I am of the view that abovementioned decisions are of no help to the plaintiff-respondent as there is absolutely nothing on record to hold that there was any implied contract between the plaintiff and the defendant-Sasaram Municipality for granting the plaintiff the status of permanent lessee. I, therefore, hold that on the basis of the resolution (Ext. 21), the defendant-Municipality cannot be directed to execute / register permanent Mokarari lease in favour of the plaintiff and as such, the findings of the trial court as well as first appellate court in this regard are perverse. Accordingly, the substantial question of law No. I is decided. Substantial Question of Law No. II 14. 21), the defendant-Municipality cannot be directed to execute / register permanent Mokarari lease in favour of the plaintiff and as such, the findings of the trial court as well as first appellate court in this regard are perverse. Accordingly, the substantial question of law No. I is decided. Substantial Question of Law No. II 14. It has been argued that the case of the plaintiff stands on the same footing as that of the plaintiff of Title Suit No. 152 of 1971 as in that case also the validity of the resolution dated 10.8.1957 passed by the Commissioners of Sasaram Municipality was in dispute and it was asserted by the Sasaram Municipality that the said resolution was not legal but the court held that the resolution dated 10.8.1957 passed by the Commissioner of Sasaram Municipality was legal. It has been submitted by the learned Advocate of the appellant that the legality of the resolution (Ext. 21) is not in question so far as this suit is concerned but the issue involved in this case is - whether on the basis of the resolution dated 10.8.1957 passed by the Sasaram Municipality (Ext. 21), the plaintiff-respondent can be declared a permanent lessee with respect to the suit property or not. I fully agree with the submission of the learned Advocate of the appellant and hold that in this suit, the legality of the resolution (Ext. 21) is not in question rather the main question is - whether on the basis of the said resolution the plaintiff had acquired the status of permanent lessee or not and as such, I hold that the plaintiffs suit does not stand on the same footing as that of Title Suit No. 152 of 1971 and accordingly, this substantial question of law is also decided against the plaintiff-respondent and in favour of the defendant-appellant. 15. It has been argued by the learned. Advocate of the plaintiff-respondent that it is the admitted case of the parties that the plaintiff-respondent was a temporary lessee under Sasaram Municipality (defendant No. 1) and the suit premises was leased out to the plaintiff by the Sasaram Municipality for a period of 15 years. The learned Advocate further submitted that there are overwhelming evidence on record from which it is established that after passing of the resolution dated 10.8.1957 (Ext. 21) several persons who were temporary lessees, were granted permanent lease. The learned Advocate further submitted that there are overwhelming evidence on record from which it is established that after passing of the resolution dated 10.8.1957 (Ext. 21) several persons who were temporary lessees, were granted permanent lease. He submitted that the law does not permit defendant No. 1 Sasaram Municipality which comes under the Local Self-Government to discriminate amongst different citizens and since it is the admitted position that the Plaintiff is a temporary lessee under the defendant No. 1, as such he is entitled for renewal of temporary lease which is also stipulated under the terms and conditions of the temporary lease. In support of his argument, the learned Advocate of the respondent has placed reliance upon the decision reported in - (R. Kempraj, appellant V/s. Burton Son and Co. Private Ltd, respondent). On the other hand, the learned Advocate of the appellant argued that the plaintiff has not claimed the said relief for renewal of his temporary lease and as such, he is not entitled for grant of such lease. I agree with the submission of the learned Advocate of the appellant but I hold that since the defendant No. 1 is a Local Self-Government and so, the defendant No. 1 cannot be permitted to discriminate between different citizens, therefore, I hold that although the relief for renewal of the temporary lease cannot be legally granted to the plaintiff as the same has not been prayed in the plaint but even then the Sasaram Municipality is morally bound to renew the temporary lease of the plaintiff, if any such application for renewal of lease is filed by the plaintiff before the Commissioners Sasaram Municipality, on such terms and conditions as Sasaram Municipality deems fit and proper. 16. In the result, I find merit in this second appeal and as such, this appeal is hereby allowed and the judgment and decree of both the courts below are set aside and the plaintiffs suit for declaring him as permanent settlee with respect to the suit land is hereby dismissed with observation that if any petition for renewal of temporary lease is filed by the plaintiff-respondent, the Sasaram Municipality may renew the temporary lease of the plaintiff on terms and conditions imposed by it till the suit property is not required for expansion of the road.