Gujarat High Court
Kanchanbhai Kanbhai Tadvi vs Municipal Corporation Of The City Of ... on 15 June, 2001
Equivalent citations: AIR 2002 GUJARAT 31
Author: P.B. Majmudar
Bench: P.B. Majmudar
JUDGMENT P.B. Majmudar, J.
1. Special Civil Application No.2994 of 1999 is preferred by the residents of Vadodara City challenging the action of Vadodara Municipal Corporation of allotting a plot bearing Final Plot (F.P.) No. 1 of Town Planning Scheme (T.P.S.) No.9 to the respondent no.4 at a price less than the market price.
2. Special Civil Application No. 6470 of 1999 is preferred by the petitioners seeking similar reliefs which are prayed for in Special Civil Application No. 2994 of 1999.
3. Special Civil Application No. 723 of 2000 is preferred by the petitioners, inter alia, praying (i) to quash and set aside the order dated 23/05/1993 passed by the State Government exempting the plot admeasuring about 5000 sq.mtrs. of F.P.No. 1, T.P.S.No.9; (ii) to quash and set aside the resolution of the Standing Committee of the Corporation (Annexure-C) dated 29/11/1990 accepting the proposal of the Municipal Commissioner, (iii) to quash and set aside the resolution passed by General Board on 29/12/1990 approving the proposal of the Standing Committee (iv) to quash and set aside the transaction between the first respondent, namely, Municipal Corporation of City of Vadodara and Lokprakashan having its office at Ahmedabad; and, (v) to direct the third respondent Lokprakashan Limited to hand over the possession of the plot to the first respondent, Municipal Corporation.
4. The first two petitions are filed against the contesting respondent, The Sandesh Press Limited, while the third petition is filed against the contesting respondent, Lokprakashan Limited. Thus, this group of petitions raise questions about allotment of plots to the contesting respondents on the grounds that the actions were violative of mandatory provisions of law and that the actions were taken to favour the contesting respondents.
5. The facts of both the petitions are required to be narrated in details which are as under :
SCA No. 723 of 2000.
5.1 The provisions contained in the Urban Land [Ceiling & Regulation] Act, 1976 (hereinafter referred to as the `Ceiling Act') were applicable to the lands situated in the limits of Vadodara City and within the periphery of the City. The lands were and are also governed under the provisions contained in the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the `Development Act') and the provisions contained in the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the `BPMC Act').
5.2 The plot in question came to be vested in the first respondent - Corporation and considering the size of the plot, at the time of disposal, the same was to be dealt with and disposed of in accordance with the provisions contained in the Ceiling Act, the BPMC Act and the Development Act. The said plot was situated in the T.P.S.No.9 and it was earmarked for a particular purpose or use. From the map, it is clear that the plot demanded is situated on the main road leading to Karelibaug from Fatehgunj. It is situated on the road connecting Fatehgunj road. The entire plot is on the road of Fatehgunj and Karelibaug road. Further, it is alleged in the petition that in or about the year 1989, the third respondent exerted some influence upon the Councillors of the Corporation. As a result, the Commissioner addressed a letter on 19/10/1990, the copy of which is annexed at Annexure-A to the petition.
5.3 Reading Annexure-A, it appears that the respondent no.3 addressed a letter through its Manager, inter alia, conveying information to the Municipal Commissioner that for the last about seven years from the date of writing of the letter, a daily newspaper was being published from the City. The office was in the rented premises having inadequate size. Therefore, a request was made to allot a plot admeasuring about 5000 sq.mtrs. out of the plot situated opposite Petrol Pump in Karelibaug of T.P.S.No.9 being F.P.No.1 at a reasonable rate. It seems that the Municipal Commissioner, Vadodara, addressed a letter (Annexure-B) to the Secretary, Municipal Corporation, pointing out that the F.P. No.1 of T.P.S.No.9 was admeasuring about 29,969 sq.mtrs. and out of which, some area of the plot was given to the Indian Airlines and the G.S.F.C. for commercial purpose. The Vadodara Urban Development Authority (VUDA) and the Gujarat Industrial Development Corporation (GIDC) were negotiating for sale. Out of the aforesaid plot, land admeasuring about 7643 sq.mtrs. was earmarked for a Public Garden. The Life Insurance Corporation (LIC) had also raised a demand since February, 1990 for allotment of this land which was also pending. Respondent No.3 raised a demand for allotment of the land admeasuring about 5000 sq.mtrs., which was shown in the map with red colour. A proposal was made that the Deputy Town Planner may fix the market price and at that price, the land may be transferred. The Municipal Commissioner requested that the consent may be obtained after putting this proposal before the Standing Committee.
5.4 It seems that thereafter on 29/11/1990 before the Standing Committee, a resolution was moved, in view of the proposal made by the Commissioner. A copy of the resolution (Annexure-C) indicates that it was also stated that if there was a demand from other daily, proposal of the same be placed before the Committee. Before General Board on 29/12/1990, while accepting the proposal, it seems that some of the Corporators pointed out that the said land was obtained for construction of residential houses and in the T.P.S. also, the land is shown in the residential zone. It was also pointed out that the land situated in a residential zone cannot be given for Press as per the prevailing Rules and Regulations of the Corporation. It was pointed out that the Press should be in the Industrial Zone only. It was also pointed out that the price of the land was not indicated. With reference to a suggestion that the Deputy Town Planner and the Commissioner may fix the price, it was pointed out that the land would fetch more price than fixed by the Deputy Town Planner. Illustrations were also given. It was also suggested that the land was likely to fetch Rs.1250/- per sq.mtr. and by a Public Notice, persons were required to be invited to bid for the price on a deposit of 25% of the amount, which may be refunded after the auction to the persons who have deposited. It seems that the aforesaid proposal made by some of the members was not approved and, therefore, the resolution was passed to the effect that as suggested by the Commissioner, at the price that may be fixed by the Deputy Town Planner, he may be permitted to transfer the land. The Municipal Corporation, thus, accepted the proposal made by the Commissioner. It seems that thereafter nothing had happened till May, 1993.
5.5 On 27/05/1993 vide Annexure-E, the State Government by a Resolution No.ULC/2082/38773/VR, through its Revenue Department, granted exemption under Section 20 of the Ceiling Act and also indicated that the land in question, which was in a residential zone, has been converted into "Local Commercial Zone". Considering the resolution, exemption was granted under Section 20 of the Ceiling Act with certain conditions, namely, (i) a document was to be executed and registered within a period of six months from the date of the resolution, (ii) construction was to be carried out only after obtaining permission from the Competent Authority in accordance with Zoning Regulations, (iii) for development of land for non-agricultural purpose, an application was required to be made in the prescribed form and construction which may be carried out was required to be made as per plans approved and was required to be approved in accordance with the regulations, and (iv) within a period of one year, construction work was to be completed. Other conditions being not relevant, are not referred to at this juncture.
5.6 It is thereafter, that on 30/09/1993, the Deputy Municipal Commissioner received a letter from the Deputy Town Planner intimating that considering the sale instances, size of the land, etc. Rs.1100/- per sq.mtr. would be the appropriate price. The said letter is at Annexure-F. It was thereafter on 09/09/1993, the Deputy Municipal Commissioner (Administration) addressed a letter (Annexure-G) to the respondent no.3 conveying that the price was fixed by the Deputy Town Planner at Rs.1100/- per sq.mtr. and in all Rs.56,10,000/were to be deposited with the Corporation. On the same day, vide Annexure-H, respondent no.3 addressed a letter stating that the price which was fixed at Rs.1100/- per sq.mtr. was not proper as the land is situated in a ditch and behind the land, there is a Vishvamitri river. It was further stated that the land was worthless as it has been washed away on account of flood. It was, therefore, pleaded that the price was excessive and requested for reconsideration.
5.7 A copy of the map duly signed by the Officer of the Municipal Corporation is placed on record. Final Plot No.1 of T.P.S.No.9 is a plot covering large area. The plot abuts on Fatehgunj Road and Karelibaug Road. There is corner plot (held by VUDA) of 60.30 mtrs. x 50 mtrs. abutting on both the Roads. Adjoining thereto to South, there is a plot of 68.30 mtrs. x 78.12 mtrs., admeasuring 5000 sq.mtrs., (on the otherside, size is of 60.30 mtrs x 78.52 mtrs.) which is allotted to the respondent no.3. After leaving 7.5 mtrs. road to South, there are two plots. First plot's occupancy is not mentioned but the second plot admeasuring 2000 sq.mtrs. is occupied by Air India. Area of about 1800 sq.mtrs. is left on the back side, i.e. East of the plots of VUDA and the respondent no.3. This is just to appreciate the exact location and whether plot is washed off on account of flood.
5.8 It seems that thereafter, vide Annexure-I, a letter dated 05/01/1994 was addressed from the Office of the Town Planner, Gujarat State, Ahmedabad, inter alia, pointing out that the Deputy Town Planner by his letter dated 30/08/1993 had fixed the price of the land in question at Rs.1100/- per sq.mtr. It was also pointed out in the letter that the land in question is situated on the right side of Road towards Fatehgunj from Karelibaug. The land in question was situated in the residential zone and developed area and on the developed Road. However, comparing with the illustration of the Sale Deed dated 27/05/1988 with regard to Revenue Survey No.33 and 34 admeasuring about 3859 sq.mtrs. and the area, size, level, development frontage, locality, potentiality etc., and also considering the cost of filling as the land in question was at below level, price of Rs.1100/- per sq.mtr. was just and proper.
5.9 Vide Annexure-J-1, the Municipal Commissioner has placed material before the Standing Committee which was thereafter, to be placed before the General Board for fixing the price. This has a reference to reconsideration of the price. From the contents of the letter addressed to the Commissioner, it appears that in view of the letter dated 24/05/1994, the Government was not required to take any decision with regard to sanction of reasonable price of the land. Considering this letter, the Commissioner had requested to take a decision with regard to the price. The following aspects were required to be considered; (i) whether the price was to be fixed at Rs.1100/- per sq.mtr. as determined by the Chief Town Planner of the State of Gujarat or, (ii) as requested by the respondent no.3 vide letter dated 09/09/1993 and 26/09/1993, in view of VUDA having disposed of the land at Rs.900/- per sq.mtr. and the General Board vide Resolution No.430 dated 15/11/1990 approved the same, the price was to be fixed accordingly, or (iii) as the reply was not received from the State Government, as per the letter of the Manager of respondent no.3 dated 23/12/93, Rs.1000/per sq.mtr. was required to be considered as the price and the matter was to be placed before the General Board to consider the price of the land in question.
5.10 It seems that thereafter, before the Administrator, a note was placed for considering the proposal made by the Commissioner vide Annexure-J-2. The Administrator on 01/07/1994 approved the proposal made by the Commissioner. Thus, the price has been fixed by the Administrator of the Corporation (Vide Annexure-J-3) and not by the General Board of the Corporation.
5.11 It appears that before the decision was taken by the Administrator on 01/07/1994 approving the proposal made by the Commissioner, vide Annexure-K dated 23/12/1993, possession of the land had already been handed over to the respondent no.3. It appears that on 10/11/1999, a letter was addressed to the Hon'ble the Chief Minister, copies of which were forwarded to the Hon'ble the Minister for Revenue, the Chief Secretary of the State and the Secretary of the Revenue Department by Shri D.B.Shukla, one of the petitioners, pointing out that the land in question was sold and that despite the resolution made by the Government on 27/09/1993, no steps had been taken for erecting any building till that date and, hence, there was a breach of condition and the exemption granted must be cancelled. It seems that no action was taken in the matter and, hence, the petitioners moved this Court. Before the Court took up matter for orders, the petitioner no.1 has filed an affidavit on 01/03/2000 inter alia pointing out that he was elected as a Councillor for the years 1985-92 and during this period the Annexures C and D were accepted. He firmly stated that, in the Board Meeting he voted in favour of the allotment of the plot to the respondent no.3 as it was felt that if newspaper is being published from Vadodara, it might help development of public opinion on various public issues and might contribute to the public education. It is in view of this expectation, the resolution was supported. The deponent in his affidavit pointed out that he belongs to Scheduled Tribe and as a leader of the Community, he has continued to take interest in the public affairs. He has also pointed out that he is also a member of Indian National Congress. Since he was a party to the resolution, he wanted to know about the exact position, i.e. whether the construction is carried out or not. He has stated on oath that he heard that the land is likely to be disposed of, therefore, he made enquiries and learnt that the conditions have not been fulfilled. He has come out with the version that the plot has been allotted at the lower price than the price quoted by the Town Planning Officer. Realising that there is non-compliance, he as well as Shri Dineshbhai, both as public workers, have filed this petition before this Court raising several contentions.
5.12 So far as the Special Civil Application No.6470 of 1999 is concerned, it is averred by the petitioners that the respondent no.2 - Corporation is trying to allot the valuable land at a throw away price to the respondent no.4. It is also averred in the petition that the respondent no.4 is publishing a well known newspaper in the State and is getting income and large income is derived through advertisements. According to the petitioners, the respondent no.4 is not entitled to get any relaxation in the price. It is averred that neither by sale nor lease or otherwise immovable property can be transferred belonging to the Corporation at a price which is less than the correct market value. The petitioners have made a grievance that the value determined by the Chief Town Planning Officer cannot be accepted as the value of the land more particularly when the land is situated in a prime locality and is likely to fetch much more price. The petitioners, in para-4, placed on record an example with regard to the auction of the property by the Corporation. Out of the F.P. in question, namely, F.P.No.1 of T.P.S.No.9. Public Auction was held on 29/10/1998. The participants offered value at a very high rate and the highest bid was at Rs.5525/-. The upset value of the land in question was fixed at Rs.5600/-. As the price of Rs.5525/- was considered to be an inadequate price, in subsequent bid, one National Building Construction Corporation offered Rs.7200/- per sq.mtr. as against the upset price of Rs.5600/- per sq.mtr. For this purpose, the petitioners placed on record Annexure-A, a copy of the letter addressed by the Municipal Commissioner to the Secretary of the Municipal Corporation. Total value has been indicated in Annexure-A at Rs.1,75,05,005/-. In view of this, it is suggested that at a throw away price, the land cannot be given and the land must be sold by the Public Auction.
5.13 In Special Civil Application No.2994 of 1999, the petitioners have similarly challenged the action of the allotment of the land to the respondent no.4. The petitioners have relied on Annexure-A on which reliance has been placed in earlier petition, i.e. Special Civil Application No.6470 of 1999. The petitioners have placed on record Annexure-B showing the area and upset price fixed. No doubt, it is for the year 1997, but, the upset price was fixed at Rs.4000/- and more. Similarly, in earlier petition No. 6470 of 1999, details are placed and documents being the same, we are not referring.
6. Mr. H.J.Shah, learned advocate has appeared for the petitioners in Special Civil Application No.723 of 2000 and for the respondent - Sandesh Limited in the remaining two petitions. Mr. B.S.Patel, learned advocate has appeared for the petitioners in Special Civil Application Nos. 6470 of 1999 and 2994 of 1999. Mr. Harin Raval, learned advocate has appeared for the respondent no.3 in Special Civil Application No.723 of 2000 while Mr. Pranav G. Desai, learned advocate, has appeared for the Municipal Corporation in all the matters.
7. The State Government has filed no affidavit in any of the matters. Thus, what is the say of the State is not known. We are of the opinion that State must place on record its own views after examining the various provisions of law. In a matter like this it was necessary for the State to convey as to how it has supported the action of disposal of land. The plot was in a residential zone and the demand was made by LIC for residential houses. Even then, what has prompted the State to approve action without considering the demand of others. What was the reason for approving demand for use of a plot other than residential in a residential zone; what was the reason for changing the zone for this plot only; when action of the Corporation was not in accordance with Section 79 of the BPMC Act for disposal of land, what has prompted the Government to approve the action of the Municipality? The State has kept silence. It has not supported the action of Municipal Corporation before the Court.
8. So far as the respondent no.3 in Special Civil Application No.723 of 2000 is concerned, at a belated stage, further affidavit has been filed. It is contended that the petitioner no.1 was the councillor and he himself voted and, therefore, now, he cannot challenge the action. It is submitted that the petition must be dismissed on this ground. It is required to be noted that the petitioner no.1 has filed an affidavit in the Court before the process was issued, pointing out the circumstances in which he supported the resolution making a grievance that nothing was done in the matter by the respondent no.3. Being a public spirited citizen, he thought it fit to file an affidavit and he has not suppressed any material fact. With regard to other petitioner, nothing is alleged against him. Therefore, this contention has no merit.
9. It is further contended that there is inordinate delay in filing the petition, therefore, the Court should not entertain the petition. Had it been the case that the respondent no.3 after allotment made use of the land, erected building and commenced publishing daily, then, the situation would have been quite different. But, in the instant case, after execution of document in 1995, there is no development of land and parcel of the land stands as it was. Therefore, we do not think just and proper to give importance to such a contention as the respondent no.3 itself has not utilised the land for the purpose for which it was given.
10. It is further contended that in view of the Ceiling Act being repealed, the petitioner cannot make any grievance more particularly when the petition is filed after about 10 months from the date of statute having been repealed. It is further contended that the petitioners do not represent any public cause and, therefore, their petitions should be dismissed. The respondent no.3 has come out with the case that the petition has been filed at the instigation of the respondent no.4 of the Special Civil Application No.2994 of 1999. However, no material has been placed on record to show that the petition is filed at the behest of the respondent no.4 of that petition. The respondent no.3 has tried to explain in para-6A of the reply that the formalities took about three years' time during which the respondent no.3 has undertaken two other projects in other cities of the State of Gujarat, namely, Surat and Bhavnagar. The respondent no.3 has come out with the case that huge amount was required to be invested for acquisition of land [construction of the Press and installation of machinery] at Bombay, in the meantime, so that the Bombay Edition can be published and circulated from Bombay. It is in view of this that the respondent no.3 stated that it could not carry out the work.
11. In Para-6-B, the respondent no.3 stated that the land in question is situated adjoining to the parcel of the land which was transferred by VUDA to the Corporation at the rate of Rs.900/per sq. mtr. Therefore, the price determined at Rs.1000/per sq.mtr. cannot be said, by any stretch of imagination, to be arbitrary, illegal and more particularly when the price was determined by the Town Planning Department of the State Government. It is contended that the resolution was passed by the Corporation and execution of the Sale Deed cannot be the subject matter of the petition under Article 226 of the Constitution and the appropriate forum would be Civil Court only. The respondent No.3 has contended in the reply that in view of Section 19(1)(I) of the Ceiling Act, the plot of land in question cannot be the subject matter under the Ceiling Act. According to the respondent no.3, though the State Government has made an order dated 27/05/1993 under Section 20 of the Ceiling Act, in exercise of powers by the State Government, however, the provisions of the Ceiling Act would not apply to the plot of the land.
12. With regard to the violation, it is contended that there is no error in arriving at the price and there is no question of use of any influence in the subject matter by the respondent no.3. The respondent no.3 has stated in the affidavit in reply that it is not necessary in every case that the sale of land has to be made by a Public Advertisement. It is contended by the respondent no.3 that the sale of land in question cannot be said to be illegal in any manner whatsoever. The respondent no.3 has stated that the story put forward by the petitioner no.1 about obtaining the certified copy of the relevant documents which took sometime and, therefore, the petition could not be filed earlier, even if assumed to be true, the petitioners are falsely stating the said fact to this Court inasmuch as the first petitioner knew about the sale of land and transfer by the respondent, Corporation since he was not only the then councillor of the Corporation, but, he also remained present in the meeting held on 29/11/1990 and voted in favour of the resolution. On the basis of this fact, it is stated that the averments are incorrect and false. It is required to be stated that the petitioner no.1 has not disputed about the remaining present in the meeting and voting in favour of the resolution. We have indicated earlier that he has filed an affidavit before the Court issued any process. Therefore, there is no question of suppression of facts. He has stated about remaining present in the meeting and supporting the resolution. It is difficult to understand as to how it is canvassed that the transfer of land took place by mere resolution. The grievance made by the petitioner no.1 is that he was required to make an enquiry and he learnt that despite supporting the resolution, the respondent no.3 has not carried out any construction though it got the possession of the land. Thus, it has committed an irregularity as contended. If the Municipal Councillor is pointing out his grievances and is placing true facts, it is difficult to understand as to how it can can be said that the averments are incorrect or false to the knowledge of the petitioner no.1. It is required to be noted that after the resolution was passed, for four years nothing has happened in the matter. The sale deed was executed on 07/04/1995 which is clear from the xerox copy of the document placed on record at Annexure-VII, page 134-page 141. Thus, for a period of about more than four years, no document was executed and even, thereafter, no construction is carried out as required. How the Municipality suffers is a glaring example. If amount would have parted immediately Municipality would have benefited. The price was paid without considering the market rate and considering the loss of interest after 5 years. Even considering rate of interest prevailing at the relevant time amount would have been doubled.
13. What is required to be examined in this matter is that reading the letter (Annexure-V), dated 29/10/1990, it is very clear that out of F.P. No.1, some part of the land was given to the Indian Airlines and G.S.F.C.. Not only that, but, VUDA and G.I.D.C. were contemplating for sale of land admeasuring about 7643 sq.mtrs. A part of that parcel of land was reserved for public purpose namely, garden. Life Insurance Corporation also demanded the land for construction of residential houses and the subject matter was pending for decision. Thus, it is very clear that for the same land though there were other claimants, the Municipal Commissioner addressed a letter to the Secretary making a proposal to allot the land to the respondent no.3. No explanation is placed before the Court as to why preferential treatment was given.
14. On behalf of the Corporation, Mr. Desai, learned Counsel made it very clear that the documents speak for themselves. He submitted that the Court may decide the matter considering the documents which are placed on record and hearing the submissions. There was no explanation as to how the proposal was made in favour of the respondent no.3 by the Municipal Commissioner though in the month of February, 1990, LIC demanded the said plot of land for construction of residential houses in the residential zone. What prompted the Commissioner without ascertaining the price, to forward his proposal. It is required to be noted that the demand made by the respondent no.3 was for the purpose of construction of the Press which is not permissible in a residential zone. What prompted the Commissioner to address a letter to the Secretary, Municipal Corporation is not stated though demand was for industrial purpose. But, one thing is very clear that despite the fact that the demand was raised by one of the Public Corporation without taking into consideration the price offered by it, a hasty decision was taken in the matter. It is very clear from the Minutes that the attention was drawn that the plot in question is for residential purpose and the demand was made for the industrial purpose. Even, the price was not determined or suggested but it was left at the mercy of the Deputy Town Planner. It was pointed out by giving illustrations that the price was fixed at a very lower rate. However, in view of majority, the decision was taken. In our opinion the Municipal Commissioner has taken a partisan attitude to favour Respondent No. 3. If he had acted independently, he, would have called the other claimants; would have seen that land for public purpose cannot be disposed of; and; for the benefit of Corporation, i.e. public at large, would have disposed of by resorting the provision contained in the Section 79 of the BPMC Act. At the time of demand, since the land was in a residential zone, the Commissioner ought not to have accepted the request for use of land for industrial purpose.
15. M/s. Shah and Desai invited the attention of the Court to Section 79 of the BPMC Act, which refers to disposal of the property. In the instant case, the property was held by the Municipal Corporation and, therefore, the disposal could be only by the mode that is provided in the statute and by no other means. If the property is transferred in contravention of the provisions, then, the action would be illegal and not binding to the Corporation i.e., people at large. Reading Section 79 of the BPMC Act, it appears that the sanction of the Standing Committee is required under certain circumstances. Section 79, (b), (c), (d), proviso (e), (f) and proviso (a) & (b) read as under :
Section 79 :-
Provision governing the disposal of municipal property.
With respect to the disposal of the property belonging to the Corporation other than property vesting in the Corporation exclusively for the purpose of the Transport Undertaking the following provisions shall have effect, namely :-
(a) XXX
(b) with the sanction of the Standing Committee the Commissioner may dispose of by sale, letting out on hire or otherwise any movable property belonging to the Corporation, of which the value does not exceed five thousand rupees; and may with the like sanction grant a lease of any immovable property belonging to the Corporation, including any such right as aforesaid, for any period exceeding one year or sell or grant a lease in perpetuity of any immovable property belong to the Corporation the value of premium whereof does not exceed fifty thousand rupees or the annual rent whereof does not exceed three thousand rupees;
(c) with the sanction of the Corporation the Commissioner may lease, sell, let out on hire or otherwise convey any property, movable or immovable, belonging to the Corporation;
(d) the consideration for which any immovable property or any right belonging to the Corporation may be sold, leased or otherwise transferred shall not be less than the current market value of such premium, rent or other consideration :
[Provided that any such sale, lease or transfer to a member of a Scheduled Caste, Scheduled Tribe or any other backward class specified as such class in an order of the President under Clause (3) of article 338 of the Constitution or any such sale, lease or transfer to a public charitable trust for the purpose of construction or maintenance of a public hospital may be effected, with the prior sanction of the State Government, for a consideration less than such market value to such extent as the State Government may approve;]
(e) the sanction of the Standing Committee or of the Corporation under clause (b) or clause (c) may be given either generally for any class of cases or specially in any particular case;
(f) the aforesaid provisions of this section and the provisions of the rules shall apply, respectively, to every disposal of property belonging to the Corporation made under or for any purpose of this Act:
Provided that :-
(a) no property vesting in the Corporation for the purpose of any specific trust shall be leased, sold or otherwise conveyed in such a manner that the purpose for which it is held will be prejudicially affected;
(b) no property transferred to the Corporation by the Government shall be leased, sold or otherwise conveyed in any manner contrary to the terms of the transfer except with the prior sanction of the appropriate Government.
16. If movable property belonging to the Corporation, value of which does not exceed Rs.5000/-, it can be disposed of with the sanction of the Standing Committee. If the property is to be leased out and the period is not exceeding one year, the procedure is indicated in clause (b). Subclause (b) does not refer to sale, therefore, we do not discuss about the said aspect. So far as the sale is concerned, Clause (c), (d) with proviso being relevant must be borne in mind. Subclause (d) mandates that in case of sale, lease or transfer of immovable property, otherwise than the mode indicated, value of such premium or rent or other consideration should not be less than the current market value of the property, hence, the property must be put to auction by inviting offers.
17. In the instant case, there was another claimant as it is clear from the letter of the Corporation itself. Over and above, others were also entitled to buy the property and the Corporation certainly could not transfer the property in the manner in which it has done. Considering the mandate of the Constitution, social purpose and proviso, it is clear that the sale, lease or transfer to the member of Scheduled Caste, Scheduled Tribe or any Backward Class specified as such class in an order of the President under clause (3) of Article 338 of the Constitution of India, with a prior sanction of the Government for consideration less than such market value to such extent, as the State Government may approve, of the property may be effected. Similarly, sale, lease or transfer to a public charitable trust for the purpose of construction or maintenance of a public hospital may be effected. What is required to be borne in mind is that only in two types of cases, the Government is required to be approached for permitting transfer at a lesser value than the market value which may be approved by the State Government. With regard to the charitable trust, the legislature has pointed out that if it is a mere transfer for charitable trust, proviso will not apply but it applies only in case of transfer for the purpose of construction or maintenance of a public hospital, and, the State Government may consider the case and not otherwise. Thus, except these two categories when there is a question of disposal of public property held by the Municipal Corporation, it can be disposed of only by taking current market value and not otherwise and the current market value cannot be determined by the Town Planner, but, it must be by way of a public auction. In the instant case, as the procedure under Section 79 is not followed, the entire transaction is bad.
18. It is required to be noted that the State Government had no power to grant the approval to the Corporation as it was neither the case of a transfer of land in favour of the Scheduled Caste, Scheduled Tribe or any other Backward Class or to any Public Charitable Trust for the purpose of construction or maintenance of a public hospital. Therefore, the order made by the State Government is without any power being vested under the Act. The Municipal Commissioner was not competent to obtain the consent of the State Government. In the instant case, in view of clear provisions as enumerated in Section 79, if the property was transferred to the Corporation by the Government, then, it cannot be leased, sold or otherwise conveyed in any manner contrary to the terms of transfer even with the prior sanction of the appropriate Government. In the instant case, it appears that the property in question was held by VUDA and thereafter, it was transferred to the Corporation for a specific purpose. The relevant material is not placed before the Court. But, suffice it to say that as the Corporation has not bothered to dispose of the property by a Public Auction so as to benefit the public at large, the action must be held to be illegal.
19. On behalf of the respondent no.3, it was submitted that the State Government, on 18/10/1989, took a decision to grant land to the Press. However, that refers to area of Gandhinagar and that resolution does not apply to the entire State of Gujarat or the areas under various municipalities. Therefore, merely because at Gandhinagar plots have been allotted at the reduced rate is not a ground to consider the matter sympathetically. Even, the resolution refers to allotment in the Industrial Zone, if the area is larger than 1000 sq.mtrs. It is pointed out by the respondent no.3 that by a resolution dated 11/01/1990, in sector no.11, a plot admeasuring about 1000 sq.mtrs. has been allotted for the period of 25 years. As said earlier, same will have no application. Similarly, the resolution dated 26/11/1991 will have no application as it is meant for allotment of plot admeasuring about 1000 sq.mtrs. to Gujarat Dainik Samachar Sangh. Considering the conditions etc. in all these circulars / resolutions, it is difficult to understand as to how it can be argued that in a city like Vadodara, land should be given at the same rate or at a cheaper rate. On behalf of the respondent no.3, it is pointed out that vide letter dated 25/11/1993, the Collector allotted F.P.No.6 of T.P.S.No.2 of Thaltej area in Ahmedabad admeasuring about 2000 sq.mtrs. at the rate of Rs.504/- per sq.mtr. There is a reference to the price which is to be determined by the Town Planner. It is difficult to understand as to how the said letter can be pressed into service for the purpose of disposal of land by the municipality in the municipal area which is governed under a different statute namely, BPMC Act. Had the land been vested in VUDA then, it would be for VUDA to dispose of the land as indicated in the Development Act.
20. Resolution was passed by Standing Committee as well as General Board without ascertaining the price at which land was to be disposed of. When the members voting in favour of resolution have not bothered to know as to whether disposal of the property would be in the interest of public at large or not, it can be said that it was passed as majority decided to act in a particular manner. However, as they have not ascertained the price at which land was to be disposed of, resolution cannot be pressed into service. Since the legislature has not empowered the Standing Committee or the General Board or the Municipal Commissioner to dispose of the land except in the manner provided in Section 79 of the BPMC Act, any resolution passed, or action taken must be quashed. By Section 79 of the BPMC Act, legislature has provided the mode of disposal of immovable property. Therefore, the resolution which overreaches the provision made by the legislature cannot be approved. Any action that is contrary to law cannot be said to be in conformity with the provisions merely because a decision has been taken by majority.
21. It is required to be noted that in the instant case, the decision was required to be taken by the Corporation for sale of immovable property and the price of which could not be less than the market value. It is clear from the record placed before the Court that there was no General Board of the Corporation in existence on 18/06/1994 when the Administrator approved action. In view of the appointment of an Administrator, it is clear that when an administrator is appointed under Section 7A of the BPMC Act, his appointment is only a stop gap arrangement. There was no urgency for the administrator to take a decision when it was asked by the State Government to function as an administrator by way of stop gap arrangement in absence of the elected members. He was not expected to adopt the resolution but was required to apply his mind considering the facts emerging from the record. There is nothing to show that he was aware that there were other claimants for the land in question and what price was offered. From the record, it is very clear that the plot in question was in a residential zone and LIC made a demand earlier for the land in question for construction of houses. It seems that he has not taken into consideration that aspect. He has also not applied his mind, whether the sale as contemplated under Section 79 would be in proper spirit and in absence of public auction, can there be a sale ? Under the circumstances, the administrator was required to consider all these aspects and was not required to pass an order mechanically.
22. It was submitted before the Court that there is a question of commercial transaction and after long negotiation, the price has been determined and, therefore, this Court should not interfere. Reliance was placed on the Judgment of the Apex Court in the case of SHRI SACHIDANAND PANDEY AND ANOTHER VS. STATE OF WEST BENGAL AND OTHERS reported in AIR 1987 SC 1109. In that case, a plot of land was allotted by the Government to the Taj Group of Hotels on lease for construction of Five Star Hotel. The final decision was taken after several discussions and negotiations and after consideration of various reports and objections, stretching over a long period of time. The Court pointed out as under :
"It is true that even an administrative decision must be arrived at after taking into account all relevant considerations and eschewing all irrelevant considerations."
22.1 The Apex Court further pointed out in that very Judgment as under :
"State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or inviting tenders. Though that is ordinary rule, it is not an invariable rule."
22.2 The Apex Court further pointed out as under :
"The reason for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. In order to encourage tourism, action was taken. Intention of the Government was well publicised and made known to the public at large. In view of the requirements of expertise and sound financial position to construct Five Star Hotel the only Taj Group Hotel came forward with a proposal and none others."
22.3 In view of this situation, the Court held that the State was justified in entering into negotiations with the Taj Group Hotels. In the facts of this case, there was no Public Advertisement for disposal of the land.
22.4 There is nothing to suggest that similarly situated persons were invited. On the contrary it suggests that in a residential locality though LIC was making a demand, the said demand was just kept back and a decision was taken. There is no explanation whatsoever as to why the request of LIC for residential quarters was not considered and why public at large were not invited for disposal of the land. Transparency requires that an action must be of such a nature which would not give a chance to anyone to say that by making departure, arbitrarily, decisions are taken. The Standing Committee, while passing the resolution, was required to be made aware about the provisions contained in Section 79 of the BPMC Act. But, it seems that the Commissioner has not brought to the notice of the Standing Committee or the General Board and he has failed to point out that the sale can be by public auction except in cases provided in the proviso. This case not being governed by proviso, the sale by public notice was a must.
23. On behalf of the respondent, Mr. Raval submitted that while awarding of contract or distribution of largesse by Government, it is not an invariable rule that this can be done only by public auction or inviting tenders. He has relied on a decision of learned Single Judge of this Court reported in 1992 (2) G.L.H. P. 93 in the case of MAHENDRA B. SHAH VS. STATE OF GUJARAT AND ANOTHERS. The learned Single Judge has pointed out as under :
"In the field of entrustment of contract or distribution of largesse the Government cannot act arbitrarily, unreasonably or contrary to public interest. Ordinarily, therefore, issuance of public advertisement or invitation to the public at large to participate in the tender or inquiry or to offer their competitive bids is the ideal method which would exclude the charge of picking and choosing or discrimination and which would be consistent with public interest."
23.1 It is required to be noted that in the instant case there is no question of decision taken by the Government which can be said to be a policy decision. On the contrary, the legislature has given a mandate to sell the property by a particular mode, namely, by public auction or by inviting tender so as to get current market value. The legislature has also provided exceptions as indicated in the proviso. In view of this, it goes without saying that there being no question of policy decision of the Government, the property must be disposed of in a manner which is laid down in the Act.
23.2 The Corporation is, after all, a creature of a statue. The Corporation can act as per the provisions of the Act. The Municipal Commissioner is only an Executive Officer who is directly accountable to the people. In the instant case, the Municipal Commissioner did not act soon after the resolution was passed as, he rightly felt that power should be exercised only after taking approval from the General Board of the Corporation. Even the Standing Committee also found it proper that the approval of the General Board is necessary and, therefore, also the power exercised by the Administrator can be said to have been exercised without applying mind to the facts and circumstances of the case and arbitrarily. Mere look at Section 79 indicates the market price and not the price fixed by the Deputy Town Planner. Here, the Administrator has missed a step and has acted without application of mind. It is also required to be noted that no material is placed on record which prompted the Administrator to agree at a price lesser than the one fixed by the Deputy Town Planner.
24. The learned Single Judge of this Court in the case of M/S. CHITRA PUBLICITY COMPANY VS. MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD & ANOTHER reported in 1986 (2) G.L.R. PAGE 1049 had an occasion to consider the question with regard to a resolution whereby it was resolved to reduce the period of proposed contract from five years to one year with regard to work of fixing polls and putting signboards etc. In para - 21, the learned Single Judge has observed as under :
"By entering into the transaction with the plaintiff, the Municipal Corporation is disposing of its property and therefore, the provisions of Sec. 79 of the Act are attracted. When the property of the Municipal Corporation is being disposed of, some contract is required to be entered into and the literal meaning to the provisions of Rule 1 falling in Chapter V cannot be given. If one reads Rule 2 of Chapter V, it becomes clear that in certain cases, the Commissioner is required to call for the tender and then follow the provisions of sec. 73 also. Reading the entire Chapter V of the Rules and the provisions of sec. 73 and 74 it has got to be held that even if the provisions of a particular part of the Rules is not applicable to the facts of the case, the principles underlying the provisions of the Act and the Rules are applicable to the types of contract in question."
Relying on this decision, it was submitted that tender is a must and without tender, disposal of the property is by way of exception only.
25. On behalf of the contesting respondent, it was submitted that the Apex Court in the case of INDIAN EXPRESS NEWSPAPER (BOMBAY) PRIVATE LIMITED AND OTHERS VS. UNION OF INDIA AND OTHERS reported in A.I.R. 1986 SC 515 has pointed out as under :
"The freedom of speech includes freedom of press. If the press is not given accommodation, the people at large will suffer as contended before us."
It was submitted on behalf of the petitioner that the press, no doubt, acts as media, however, he further submitted that the press charges for the advertisements, and all other benefits which are otherwise available to the industries, are also available to the press. What was submitted before us was that even if it was decided that the land be given to the press, then it was obligatory on the part of the Municipal Commissioner and the Administrator to invite all the press and, thereafter, to take a decision considering the price which may be offered by a particular press. This authority does not help the contesting respondent at all.
26. It was contended that the resolution was passed by the Standing Committee in the year 1990 and the action is sought to be challenged after almost a period of about 10 years. It was further emphasised that one of the petitioners was a party to the resolution, therefore, in view of the delay and laches, the petition should not be entertained. We have indicated in the earlier part of the Judgment that one of the petitioners, as a Councillor, supported the resolution. However, for a very long period, nothing was done. From the record, it is very clear that the decision was taken by the Administrator on 01/07/1994 and before that possession of the plot was already given. Apart from the price, etc. what is important in this case is that the plot of land has not been developed at all.
27. In the case of STATE OF GUJARAT VS. PATEL RAGHAV NATHA reported in A.I.R. 1969 SC 1297 : 1969 G.L.R. 992 SC, the Court was concerned with revisional power of the Commissioner under Section 211 of the Bombay Land Revenue Code, 1879. The Apex Court pointed out as under:
"Reading Sections 211 and 65 together, it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of permission."
Reading several decisions, it appears that the length of reasonable time is to be determined by the facts of the case and the nature of the order which is being revised.
28. In case of BHAGVANJI BAVANJI PATEL VS. STATE OF GUJARAT AND ANOTHER reported in 1971 G.L.R. PAGE 156, the Division Bench considered the observation of the Apex Court in case of PATEL RAGHAV NATHA (Supra) in laying down a rule that the revisional power under Section 211 of the Code must be exercised within a period of three months. In that case, the revisional power was exercised after seven years. The Court, therefore, held that it was not exercised within reasonable period. The Court further observed as under :
"Maximum period, it may be able to claim, cannot be more than a year from the date of commissioner's order, and to say that it can do so after any length of time as is sought to be done in this case, viz., after period of seven years or so cannot be called reasonable period."
29. In the case of MINISH K. SHETH AND OTHERS VS. STATE OF GUJARAT AND OTHERS reported in 1985 (1) G.L.R. P. 202, a contention was raised that power cannot be exercised after two years, by placing reliance on the decision in the case of PATEL RAGHAV NATHA (Supra).
The learned Single Judge pointed out as under :
"The Apex Court has not laid down any general principle of universal applicability regarding the time limit within which the revisional jurisdiction can be exercised suo motu by the authority concerned."
Reading the decision of the Apex Court, it is clear that in absence of period of limitation being prescribed, no principle has been laid down. The Apex Court has laid down that the reasonable time and length of reasonable time must be determined by the facts of the case and the nature of the order sought to be revised.
30. The Division Bench in case of HARESH KANTILAL VORA VS. COMPETENT AUTHORITY AND ADDITIONAL COLLECTOR, RAJKOT AND ANOTHER reported in 1992 (2) G.L.H. P.424 ruled that simply because the power is exercised after a particular period, exercise of power does not become ipso facto bad in law. Mere lapse of time without anything more would not make exercise of power arbitrary and unreasonable.
31. Attention of the Full Bench in case of SHAILESH J. VARIYA VS. SUB REGISTRAR, VADODARA 1996 (3) G.L.R. P.783 was drawn to the decision of the Apex Court in case of STATE OF ORISSA AND OTHERS VS. VRUNDABAN SHARMA AND ANOTHER reported in 1995 SUP.(3) SCC P.249, with a view to consider what is reasonable time. In Para Nos. 45 and 46, the Full Bench observed as under:
"45. In Vrundaban Sharma (supra), tenancy rights were conferred by a Tehsildar without obtaining prior confirmation of Board of Revenue which was a condition precedent. When the Board came to know about the action of Tehsildar, it quashed the order but by that time a period of twenty-seven years was over. It was contended that though no period of limitation was prescribed, the power could have been exercised within reasonable period and by no mean, period of twenty-seven years could be said to be reasonable. Considering the provisions of the Act and referring various decisions including Patel Raghav Natha (supra), their Lordships observed:
"It is, therefore, settled law that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case. Take a case that Patta was obtained fraudulently in collusion with the officers and it comes to the notice of the authorities after a long lapse of time. Does it lie in the mouth of the party to the fraud to plead limitation to get away with the order? Does lapse of time an excuse to refrain from exercising the revisional power to unravel fraud and to set it right? The answers would be no."
"46. From the aforesaid decisions, there is no doubt in our minds that the power under sub-sec. (1) of Sec. 32-A of the Act can be exercised within reasonable period and no outer limit can be fixed for exercise of such power. The decision in Patel Raghav Natha (supra), in our considered opinion, cannot be read as laying down universal rule applicable to all statutes, at all times and under all circumstances without reference to the scheme of the Act, underlying object to grant revisional power and consequences which may ensue therefrom that revisional powers must be exercised within a particular period. Their Lordships also, were conscious and mindful of all such situations which is reflected from the observations to the effect that "the length of reasonable time must be determined by the facts of the case and the nature of the order which is being revised."
Thus it is very clear that there is no straight jacket formula. In the instant case, contrary to the provisions of law, namely, Section 79 of the BPMC Act and without waiting for true market price, relying on Deputy Town Planner, the document was executed for transfer of parcel of land and till this date, the land is not used. Therefore, in our opinion, though the document was executed in 1995, it cannot be said that powers are being exercised after delay. Considering the facts and circumstances of the case, it is clear that by impugned act public are deprived of market price, other similarly situated were not offered and claimants prior in time for the use of land as per the rules were, thus, deprived.
32. It was submitted before the Court relying on the decision in case of TATA CELLULAR VS. UNION OF INDIA reported in 1994 (6) SCC P.651 that the Court cannot interfere with the Government's freedom of contract. In the instant case, the Corporation has entered into a contract and, therefore, it would not be proper for this Court to interfere. The Apex Court pointed out as under:
"The principle of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in exercise of that power of Judicial Review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender."
In the instant case, there is no invitation to similarly situated persons and without inviting public tender, the action has been taken and that too contrary to the provisions contained in the BPMC Act.
33. On behalf of the petitioners, Mr. Shah contended that when there is transfer of property, a document is required to be executed. Mr. Shah submitted that when there is acquisition or disposal of immovable property or any interest therein, Section 73 will be attracted. Relevant part of Section 73 is reproduced as under :
Section 73 (a) & 73 (b) :
"73. Power to Commissioner to execute contracts on behalf of Corporation.
With respect to the making of contracts under or for any purpose of this Act, including contracts relating to the acquisition and disposal of immovable property or any interest therein the following provision shall have effect, namely:-
(a) every such contract shall be made on behalf of the Corporation by the Commissioner;
(b) no such contract for any purpose which, in accordance with any provision of this Act, the Commissioner may not carry out without the approval or sanction of some other municipal authority, shall be made by him until or unless such approval or sanction has first been duly given;
(c) xxx xxx xxx xxx
(d) xxx xxx xxx xxx
(e) xxx xxx xxx xxx 33.1 Subrule 2 of Rule 1 in Chapter V of Appendix IV relates to the Contracts and provides as to mode of executing the contracts. Subrule 2 being relevant is reproduced as under :
Subrule (2) :
The common seal of the Corporation, which shall remain in the custody of the Municipal Secretary, shall be affixed in the presence of two members of the Standing Committee to every contract or other instrument required to be under seal and such contract or instrument shall be signed by the said two members of the Standing Committee in token that the same was sealed in their presence. The signatures of the said members shall be distinct from the signatures of any witnesses to the execution of any such contract or instrument.
33.2 Mr. Shah learned advocate submitted that in the instant case, there is transfer of immovable property. It was submitted that when the property is transferred, Chapter V of the BPMC Act requires that seal of the Corporation must be affixed in presence of two members of Standing Committee. They must sign in token of seal having been affixed to the contract in their presence. It was submitted that as contract is not made in accordance with the provisions contained in the Act, it is not binding to the Corporation.
34. In case of PILLOO DHUNJI SHAW SIDHWA VS. MUNICIPAL CORPORATION OF THE CITY OF POONA reported in A.I.R 1970 SC 1201, the Court examined Sections 73, 74, Rules 1 and 4 of Chapter V of Appendix IV of the BPMC Act. In Para -8, the Court pointed out as under :
"8. By Section 5 of the Act the Corporation is a body corporate having a perpetual succession and a common seal. Our attention has not been invited to any provision which even by implication suggests that the Corporation may have a seal only after elections are held and the form of the seal is approved by the members of the Corporation. But the argument whether the Corporation had at the date of contract a seal is not relevant. We are unable to hold that the provisions of Sections 73 and 74 and the relevant rules in Ch. V did not apply before the elections were held and the statutory Committees were constituted. There is nothing in the transitory provisions which excludes the operation of Section 74(2) of the Act. Granting that it is not possible to comply with the rules, until the elections are held, there is no warrant for holding that the provisions of Section 74(2) will not apply and the Commissioner or the Transport Manager may enter into contracts without seal which are enforceable at law notwithstanding the absolute terms of the Act. In our judgment there was no enforceable contract between the plaintiff and the Corporation. The claim for damages on the footing that the Corporation committed a breach of contract was, therefore, rightly rejected by the Trial Court and the High Court."
35. In case of DR. H.S.RIKHY VS. NEW DELHI MUNICIPALITY reported in A.I.R. 1962 SC P.554, the Apex Court pointed out that mandatory provisions must be followed while transferring the property. In that case the Committee, in pursuance of resolution passed by it, invited tenders from intending bidders for shops and premises. The highest bidders were allotted various shops. The allotments were made by the Committee and the allottees were paying the rent. There was controversy between the parties, whether it was rent within the meaning of Delhi and Ajmer Rent Control Act or not. The High Court ultimately examined the relevant provisions and came to the conclusion that there was no relationship of landlord and tenant between the parties inasmuch as there was no letting, there being absence of properly executed lease deed and the doctrine of part performance was not attracted to the facts and circumstance of the case. For coming to the conclusion that there was no valid lease between the parties, the High Court relied on the provisions of Section 47 of the Punjab Municipal Act.
35.1 It was argued before the Apex Court that the Transfer of Property Act does not apply to the transaction in question. Therefore, there was no need of insistence on a registered lease, or even a written lease, executed between the parties. It was enough that the tenants in each case had given a written `Kabuliyat' from the terms of the respective tenancies which could be ascertained. It was also argued that the High Court was in error in relying upon Section 47 of the Punjab Municipal Act. It was also contended that definitions of `landlord', of `premises' and of `tenant' in the Act were comprehensive enough to take in the transaction between the appellants and the Committee. Section 47 of the Punjab Municipal Act on which reliance was strongly placed by the Committee reads as under :
"47. (1) Every contract made by or on behalf of the Committee of any municipality of the first class whereof the value or amount exceeds one hundred rupees, and made by or on behalf of the Committee of any municipality of the second and third class whereof the value or amount exceeds fifty rupees shall be in writing, and must be signed by two members, of whom the president or a vice president shall be one, and countersigned by the secretary:
Provided that, when the power of entering into any contract on behalf of the committee has been delegated under the last foregoing section, the signature or signatures of the member or members to whom the power has been delegated shall be sufficient.
(2) Every transfer of immovable property belonging to any committee, must be made, by an instrument in writing, executed by the president or vice-president, and by at least two other members of committee whose executions thereof shall be attested by the secretary.
(3) No contract or transfer of the description mentioned in this section executed otherwise than in conformity with the provisions of this section shall be binding on the committee."
Now in order that the transfer of the property in question should be binding on the Committee, it was essential that it should have been made by an instrument in writing executed by the President or the Vice-President and at least two other members of the Committee, and the execution by them should have been attested by the Secretary. If these conditions are not fulfilled, the contract of transfer shall not be binding on the Committee. But it has been contended on behalf of the appellants that the non-compliance with the provisions aforesaid of S.47, quoted above, would not render the contract of transfer of property void but only voidable. In other words, where the acting of the parties have given effect to the transactions, as in the instant cases by delivery of possession of the property by the Committee and payment of the rent 'by' the appellants, the absence of formalities would not render the transactions of no legal effect But it has to be noted that it was not contended on behalf of appellants that the provisions of S.47(3) of the Municipal Act, are not mandatory and are merely directory. Such an argument was not and could not have been advanced, because it is settled law that the provisions of a Statute in those peremptory terms could not but be construed as mandatory.
(9) But the learned counsel for the appellants placed a great deal of reliance on the decisions in the cases of (1871) 6 Ch A 551 and (1848) 116 ER 1144. In the first case, the suit was for specific performance of a contract by the Corporation which was evidenced by a resolution of the Corporation, to let to the plaintiff a piece of land the boundaries of which had not been fully determined. Though there was no contract under seal, Crook in pursuance of the contract built a wall and terrace on parts of the land in question. The Corporation brought a suit for ejectment, and the plaintiff thereupon filed a bill in Chancery for specific performance. It was held by the Lord Chancellor, Lord Hatherley, confirming the decision of the Vice-Chancellor, that though the agreement was not under seal, the corporation, was bound by acquiescence and must perform the agreement to grant the lease. It must be remembered that was a suit to obtain a lease from the grantor, the Corporation, that is to say, it was an action in equity, and the Court of Equity held, in the words of the Lord Chancellor, that "at all events, a Court, of Equity could not allow the ejectment to proceed after the plaintiff had spent so much money on the wall". The decision was, therefore, explicitly based on the doctrine of `Standing by'. In that case there is no reference to any statute, the terms of which could be said to have been infringed. In the second case (1848) 116 ER 1144 again there was no question of the infringement of any mandatory provision of a Parliamentary statute."
35.2 The Court was required to determine whether the provisions of Section 47 of the Municipal Act prevent the Committee from entering into a contract or making a transfer of property without complying with the conditions in that Section.
35.3 The Court pointed out that in England, there is distinction between the contracts made under the Common Law by Municipal Corporations which may not be under seal, and the contract made by the them in pursuance of a statute like the one now under consideration. 35.4 In para -11 the Court pointed out as under :
"It is true that Section 18 contains the power to enter into a contract and to transfer any property held by the Committee, but, Section 47 lays down the essential conditions of the exercise of the powers and unless those conditions are fulfilled, there could be no contract and no transfer of property."
35.5 The Court further pointed out as under :
"The provisions of Section 47 aforesaid are essential ingredients of the power contained in Section 18 of the Act."
35.6 In para -13, the Court pointed out as under :
"Where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provisions of law being mandatory and not directory has to be strictly followed."
35.7 The Court further held that there was no relationship of landlord and tenant between the parties. In view of the aforesaid two decisions, it is very clear that when there is transfer of property, an agreement must be made in the manner as prescribed in the Act and Rules.
35.8 The provisions contained in Section 74(2) of the Act is not excluded at any point of time. In the present case, xerox of the agreement is on the record and it is clear that the same is not as per the mandate of the Act. Therefore, it would not give any right to the respondent no.3.
36. It was submitted that as held by the Supreme Court in case of SUBHASH KUMAR VS. STATE OF BIHAR AND OTHERS reported in A.I.R. 1991 SC P.420, (See G.L.H. 2000(1) VOL.XX(1) Page 337) it is the duty of the Court to discourage the petitions which are filed for the purpose of vindication of personal grudge or enmity and to ensure the course of justice is not obstructed or polluted by unscrupulous litigants by invoking extraordinary jurisdiction of the Supreme Court for personal matters under the garb of the Public Interest Litigation.
It is required to be noted that in the instant case, as indicated earlier, the petitioner at the relevant time, as a Municipal Councillor supported the resolution for allotment of plot to the respondent no.3. After about five years, the Corporation executed a document. The land which was in a residential zone for constructing residential houses, without inviting public tender and keeping aside other claimants, a decision was taken for transferring a plot for the use which was not permissible in a residential zone. As the respondent no.3 failed to carry out its obligation, the petitioners moved the Court that the purpose of allotment of the plot was to establish the press within a reasonable period, but, for more than five years, nothing was done. In our opinion, as respondent no.3 failed to develop the plot as promised, it cannot be said that the petitioner no.1 has any grudge against the respondent no.3 and or the petition is filed for the purpose of vindication of personal grudge or enmity.
37. Other two petitions which are filed against the Sandesh Press Limited for allotment of the land must be allowed for the aforesaid reasons. In view of what we have stated hereinabove, the plot which is handed over to the respondent no.3 in SCA No.723 of 2000 cannot be said to have been vested in the respondent no.3 and peaceful and vacant possession of it shall be handed over to the Municipal Corporation by respondent no.3. So far as the amount is concerned, whatever amount has been paid by the respondent no.3 of SCA No. 723 of 2000, must be returned to it with interest at the rate of 12%. The said amount shall be returned within a period of six weeks. The possession of the said plot as stated above shall be handed over immediately.
38. So far as Sandesh Press Limited is concerned, it has also paid the money, but, plot has not been allotted. Therefore, Sandesh Press Limited is entitled to get the amount which it has paid, with interest at the rate of 12%. From the record, it transpires that the plot was earmarked for public garden and certain part thereof was for residence. There is nothing to indicate that the land was not earmarked for public garden. In view of the T.P.S., the same cannot be used for any other purpose. Considering the Scheme and the provisions of the Development Act, if the land has been allotted for the purpose of parks, playgrounds, gardens, open spaces or for social infrastructure such as school, dispensary, fire brigade, public utility spaces, then the purpose shall not be changed by variation of the scheme for the purpose other than public purpose. Therefore, this is to be kept in mind by the Authority.
39. The petitions stand allowed accordingly with no order as to costs. Rule is made absolute accordingly.
***** Rajendra After the order was pronounced, Mr. H.P. Raval for respondent No.3 in Spl. C.A. No. 723 of 2000 requested that the order passed by us in these matters may be stayed for a reasonable time as he has instructions from his clients that they would like to carry the matter in appeal to the Apex Court.
For the reasons given in the judgment, we do not propose to grant absolute stay of the order but in order to safeguard the interest of the respondent Press, we direct that after receiving the possession from the respondent Press, the Baroda Municipal Corporation shall not transfer, alienate or dispose of the disputed land in favour of anybody for a period of six weeks from today. The Baroda Municipal Corporation is directed to maintain statusquo after receiving the possession for the aforesaid period.