Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 589 (RAJ)

Prahlad Singh Kalal v. Municipal Council Kota

2018-02-20

ALOK SHARMA

body2018
JUDGMENT : Alok Sharma, J. This appeal under section 100 CPC has been filed against the judgment and decree dated 5.8.1996 passed by Addl. District Judge No. 2 Kota in Civil Appeal No. 33/1993 reversing the judgment and decree dated 6.9.1993 passed by Addl. Munsiff No. 1 (South), Kota (where he decreed the appellant-plaintiff's (hereafter 'the plaintiff') suit for specific performance and permanent injunction in respect of a parcel of land ad-measuring 30 Ft. X 118 Ft., which lay between the frontage of the house of plaintiff and the road) and dismissing the suit. 2. The case set up by the plaintiff before the trial court was that suit land lay between the frontage of the house of plaintiff and the road, could not be sold by the respondent-defendant-Municipal Council (hereafter 'the defendant') to anyone else and in-fact in view of the peculiar situation obtaining qua the suit land none else was interested to purchase it. It was submitted that in the circumstances, on the plaintiff's application, the sale of suit land by the then Municipal Council, Kota was sanctioned on 5.2.1972 under the hand of its Chairman and as required, a sum of Rs. 7080/- remitted by the plaintiff and deposited with the Municipal Council, Kota. It was submitted that the plaintiff for several decades before the sanction dated 5.2.1972 and thereafter was in possession of the suit land. Following the sanction dated 5.2.1972 and deposit of Rs. 7080/- only the ministerial act of issue of requisite patta by the Municipal Council, Kota remained pending for failure of the Municipal Council, Kota to discharge its obligations on the resulting contract. Suddenly a decade later vide letter dated 7.3.1983 the Municipal Council, Kota informed the plaintiff that the sanction dated 5.2.1972 for sale of land in favour plaintiff stood cancelled. It was submitted that the cancellation dated 7.3.1983 was illegal and in the facts of the case, the plaintiff was entitled to a decree of permanent injunction against the Municipal Council, Kota and protect himself from being dispossessed and the Municipal Council restrained from allotting or transferring the suit land to anyone else. 3. It appears that during the pendency of the suit, the letter dated 7.3.1983 withdrawing the sanction dated 5.2.1972 was set-aside in a statutory appeal at the plaintiff's instance by the Collector, Kota under his order dated 21.5.1986. 3. It appears that during the pendency of the suit, the letter dated 7.3.1983 withdrawing the sanction dated 5.2.1972 was set-aside in a statutory appeal at the plaintiff's instance by the Collector, Kota under his order dated 21.5.1986. The sanction dated 5.2.1972 thus resurrected, an amendment in the suit was sought and relief for specific performance, prayed for with reference to the sanction dated 5.2.1972 and deposit of Rs. 7080/- made as required by the Municipal Council, Kota. 4. The respondent-defendant (hereafter 'the defendant') Municipal Council filed reply of denial in the suit. It was submitted that the sanction under the hand of the Chairman, Municipal Council, Kota for sale of the suit land issued on 5.2.1972 was without authority of law as the Chairman in his individual capacity had no such power. Only Municipal Board could have passed a resolution in that regard, if at all, which was not. It was submitted that the suit land was even otherwise a strip of land as defined under the Rajasthan Municipalities Act, 1959 and the plaintiff did have any legal right under the operating law to seek allotment thereof. No right could be built on the foundation of the Chairman's illegal act based on which no enforceable agreement to sell could obtain to warrant a decree for specific performance. It was denied that the plaintiff was in possession of the suit land and even otherwise there was no provision, at the relevant time for allotment of municipal land by regularization of possession under the Rajasthan Municipalities Act, 1959. The prayer for permanent injunction was also opposed for reason of the plaintiff being in possession. It was prayed that in these facts of the case and law, the plaintiff had no legal right either to a decree of specific performance or even for permanent injunction. 5. The prayer for permanent injunction was also opposed for reason of the plaintiff being in possession. It was prayed that in these facts of the case and law, the plaintiff had no legal right either to a decree of specific performance or even for permanent injunction. 5. On the pleadings of the parties, the trial court framed 4 issues as under: 1 & D;k oknh ds edku ds lkeus dh fooknxzLr Hkwfe ij oknh dk dCtk pyk vk jgk gS vkSj fnuakd 05-02-1972 dks uxj ifj"kn dksVk us mDr Hkwfe oknh dks foØ; djus dh Lohd`fr nh Fkh\ 2 & D;k izfroknh Øe 1 }kjk fookfnr Hkw[k.M ds foØ; dks dSafly djus dh dk;Zokgh voS/k FkhA 3 & D;k uxj ikfydk vf/kfu;e dh /kkjk 271 ds vUrxZr izfroknh dks uksfVl fn;k tkuk vko';d Fkk vkSj oknh ds }kjk ,slk ugha djus ij okn fujLr gksus ;ksX; gS\ 4 & vuqrks"k\ 6. The plaintiff relied upon the evidence of one Mohan Lal PW-1 and himself as PW-2 and exhibited four documents. The defendant - Municipal Council brought in the evidence of Ram Narayan (DW- 1). The trial court on its appreciation of the evidence on record and its understanding of the applicable law, decreed the plaintiff's suit both for specific performance flowing from the sanction dated 5.2.1972 deposit of Rs. 7080/- in pursuance thereto and also granted a decree of permanent injunction restraining the defendant-Municipal Council, Kota from interfering with the possession of the plaintiff. 7. Aggrieved, the Municipal Council, Kota filed an appeal under section 96 CPC. Vide its judgment and decree dated 5.8.1996, the first appellate court has set-aside the judgment/decree of the trial court finding that the Chairman of Municipal Council, Kota had no authority in his individual capacity to issue the sanction dated 5.2.1972, no resolution of the Board of the Municipal Council, Kota was passed or brought on record authorizing the Chairman to issue the sanction in issue or require deposit of Rs. 7080/- or otherwise as consideration for the allotment. No provision under the Rajasthan Municipalities Act, 1959 allowed for allotment by regularization of land which was a "strip of land" as defined under the Urban Improvement of Trust (Disposal of Land) Rules, 1974 (hereafter the Rules of "1974"). And the suit land being more than 100 Sq. Yards was a strip of land which could be allotted. No provision under the Rajasthan Municipalities Act, 1959 allowed for allotment by regularization of land which was a "strip of land" as defined under the Urban Improvement of Trust (Disposal of Land) Rules, 1974 (hereafter the Rules of "1974"). And the suit land being more than 100 Sq. Yards was a strip of land which could be allotted. The suit laid could under the Rules of 1974 only be auctioned by public notice. Further the plaintiff was in possession of the Municipal land which was open/vacant land. It was held that hence the suit for specific performance and permanent injunction was liable to be dismissed. The judgment and decree dated 6.9.1993 of the trial court was resultantly set-aside. Hence this second appeal. 8. On 3.2.2006, this appeal filed in the year 1996 was admitted and the following substantial question of law framed: "Whether the suit could be dismissed by the Appellate Court in view of the order dated 20.9.1983 of the Municipal Council having been set aside by the Collector on 21.5.1986 resultantly the order dated 5.2.1972 sanctioning sale in favour of the plaintiff stood revived and no fresh notice or hearing took place after the Collector's order dated 21.5.1986 as found by both the Courts below? 9. I am of the considered view that the substantial question of law framed has no bearing whatsoever on the judgment and decree passed by the appellate court which held that the sanction dated 5.2.1972 issued by the Chairman, Municipal Council, Kota was wholly unauthorized, illegal and invalid, absent a resolution in that regard by the Board of the Municipal Council, Kota and based thereon the suit for specific performance could have been decreed. The appellate court further held that as the suit land was admittedly a strip of land as defined under the Rules of 1974 to which the plaintiff as a holder of land in vicinity could be entitled to be considered as a matter of the relevant statutory provision. The appellate court also found as a fact from the evidence/facts/circumstances of the case that the possession of the suit land was with the plaintiff. The appellate court also found as a fact from the evidence/facts/circumstances of the case that the possession of the suit land was with the plaintiff. I am of the considered view that aside of the finding of the first appellate court on possession of the Municipal Council, Kota being one of fact based on its appreciation of the evidence on record, it is also well settled that in respect of open/vacant land as the suit land admittedly was, possession follows title, which admittedly lay with the Municipal Council, Kota. 10. I am of the considered view that the substantial question of law framed by this Court being unrelated to the impugned judgment of the first appellate court is of no event. On its foundation, no occasion for the impugned judgment passed by the first appellate court being re-evaluated arises. 11. I would also otherwise hold that the judgment of the first appellate court suffers from no illegality, either on fact or in law, inasmuch as there is nothing on record nor Mr. M.M. Ranjan has been able to point out to this Court as to how a parcel of Municipal land, admittedly not being a strip of land as defined under the Rules of 1974 could be privately sold on the basis of an individual sanction of the Chairman, Municipal Council unauthorisedly issued on 5.2.1972 more particularly when the power to enter into a contract under Section 80 of the Rajasthan Municipalities Act, 1959 only lay with the Municipal Board-a body corporate. No resolution of the Board authorizing the Chairman to issue the sanction dated 5.2.1972 was brought on record in evidence before the trial court. 12. However, the Municipal Council, Kota is directed to refund Rs. 7080/- deposited by the plaintiff with interest @ 6% p.a. from the date of filing of the suit till the date of re-payment. 13. In view of aforesaid, the appeal is accordingly dismissed. Decree be drawn accordingly.