Gujarat High Court
Jamnagar District Development Trust vs Municipal Corporation & on 28 March, 2013
Author: Jayant Patel
Bench: Jayant Patel
JAMNAGAR DISTRICT DEVELOPMENT TRUST....Petitioner(s)V/SMUNICIPAL CORPORATION C/SCA/9709/2000 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9709 of 2000 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ JAMNAGAR DISTRICT DEVELOPMENT TRUST....Petitioner(s) Versus MUNICIPAL CORPORATION & 1....Respondent(s) ================================================================ Appearance: MRS SANGEETA PAHWA FOR M/S THAKKAR ASSOC., ADVOCATE for the Petitioner(s) No. 1 MR DHAWAN M JAYSWAL, LEARNED ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 2 MR AR THACKER, ADVOCATE for the Respondent(s) No. 1 MS BALA R THACKER, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 28/03/2013 ORAL JUDGMENT
The petitioner by this petition had initially challenged the action for quashing and setting aside the inaction on the part of the respondent Corporation in not deciding the plan submitted or sanctioned for construction of the school and it was prayed that the respondent Corporation be directed to decide the application for sanction of the plan for construction of the school. Pending the petition, the petitioner has amended the petition seeking appropriate direction to quash and set aside the order dated 01.12.2000 passed by the respondent Corporation as illegal and arbitrary.
The short facts are that in the Town Planning Scheme No.1 (Jamnagar), one Final Plot No.32 came to be reserved for the purpose of education. The respondent Corporation issued advertisement inviting applications from the public trusts and social organizations, if they were desirous to make construction over the said land for running school which can accommodate about 1200 students. Advertisement was given on 05.10.1988. The petitioner applied in response to the said advertisement for allotment of the plot on 17.02.1989. The General Board of the Corporation passed the resolution for allotment of the plot on lease basis for 49 years for Re.1/- as token rent and additionally Rs.1,00,000/- was to be kept as deposit with the Corporation. It appears that thereafter, as per the petitioner, the amount of Rs.1,00,000/- was deposited on 07.09.1989 and, it is alleged that the possession of the plot was also given by the Corporation to the petitioner. On 28.05.1991, the petitioner received a letter from the respondent Corporation calling upon the petitioner to submit detailed construction plans and as per the petitioner, the construction plans were submitted on 19.06.1991. There was also correspondence for that, but the grievance of the petitioner is that the construction plans were not sanctioned and under these circumstances, the petitioner approached to this Court.
I have heard Mrs. Sangeeta Pahwa for the petitioner, Mr.A.R. Thacker for respondent No.1 and Mr. Dhawan Jayswal learned AGP for respondent No.2.
It appears from the affidavit-in-rely filed on behalf of the Corporation that the Corporation thereafter, had moved the application under Section 79(d) of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the Act ), for approval of the said resolution but such permission was not granted by the State Government vide decision dated 06.08.1992 and the copy of the said decision of the State Government is produced with the affidavit-in-reply filed on behalf of respondent No.1. It also appears that since the Corporation declined the permission pending the petition vide order dated 01.12.2000 on the ground that the permission has not been granted by the State Government under Section 79(d), the proposal for construction cannot be accepted.
As such, if the provisions of Section 79 of the Act are considered, it gives power to the Corporation to dispose of the property belonging to the Corporation. Section 79 of the Act for ready reference reads as under:-
Section
79. Provisions governing the disposal of municipal property.- With respect to the disposal of property belonging to the Corporation other than property vesting in the Corporation exclusively for the purposes of the Transport Undertaking the following provisions shall have effect, namely:-
(a) the Commissioner may, in his discretion, dispose of by sale, letting out on hire or otherwise, any movable property belonging to the Corporation not exceeding in value in each instance five hundred rupees or such higher amount as the Corporation may, with the approval of the [State] Government, from time to time determine, or grant a lease of any immovable property belonging to the Corporation including any right of fishing or of gathering and taking fruit, and the like, for any period not exceeding twelve months at a time:
Providing that the Commissioner shall report to the Standing Committee every lease of immovable property within fifteen days of the grant thereof unless it is a contract for a monthly tenancy or the annual rent thereof at a rack rent does not exceed three thousand rupees;
(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 yar or sell or grant a lease in perpetuity of any immovable property belonging to the Corporation the value or 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;
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 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 purposes 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.
The aforesaid provision shows that the Corporation has power to grant the property on lease basis where the value or the premium does not exceed Rs.50,000/- or the annual rent thereof does not exceed Rs.3,000/-. However, as per clause (d) of Section 79, it has been provided that the consideration for which any immovable or a right belonging to the immovable property sold or leased or otherwise transferred would not to be less than the current market value of such premium or rent or other consideration. By proviso to said Section 79 (d), the departure for the consideration of market value is permissible only when the sanction is granted by the State Government, that too, for a limited purpose of transfer to member of any Scheduled Caste or Scheduled Tribe or any other backward class or a public charitable trust for the purpose of construction or maintenance of a public Hospital. Aforesaid makes it clear that the consideration cannot be less than the market value unless the case is covered by the proviso.
By no stretch of imagination, for an area admeasuring 4543 sq. mtrs. in Jamnagar, the consideration of Re.1/- as rent per year could be said as equivalent of market value, that too, for 49 years. In the considered opinion of the Court, the resolution of the Corporation is hit by the provisions of Section 79(d) of the Act since the consideration is less than the market value. It is not a matter for construction of any Hospital, nor an allotment of the land to any member of Scheduled Caste or Scheduled Tribe or backward class as referred to in the proviso. Even if it is considered for the sake of examination that whether there was any sanction of the State Government or not, then also the sanction has not been granted by the State Government as back as since 06.08.1992 (it is a typographical error and it is stated by Mr.Thacker that the correct date is 16.6.1992).
In view of the aforesaid, it is clear that the so called decision of the Corporation is neither backed by the provisions of the Act nor is even authorised under the Act nor for such purpose permission has been granted by the State Government.
It is an admitted position that the matter has remained at the stage of passing of the resolution and taking decision but the lease deed has not been executed. The Corporation has declined the execution of the lease deed by communicating to the petitioner vide letter dated 01.12.2000 at Annexure-L on the premise that sanction has not been granted by the State Government. In my view when the action of the Corporation was not supported by any law since the consideration was less than the market value and further when sanction has not been granted by the State Government, if the Corporation has declined to execute the lease deed or has declined the grant of construction permission, it cannot be said that such an action is arbitrary or illegal.
The learned counsel for the petitioner lastly contended that the amount of Rs.1,00,000/- which was deposited in the Fixed Deposit Receipt if not returned to the petitioner, the same may be directed to be returned to the petitioner by the Corporation.
Mr. Thacker, learned counsel appearing for respondent No.1 states that if the amount of Rs.1,00,000/- in FDR is not returned, it will be returned. Hence, it is observed and directed that if the amount of FDR is still retained by the Corporation, the same shall be returned to the petitioner since the allotment has not been materialised.
12. In view of the aforesaid observation and discussion and subject to the aforesaid direction, no relief can be granted to the petitioner hence the present petition is dismissed. Rule is discharged accordingly. Considering the facts and circumstances of the case, there shall be no orders as to costs.
(JAYANT PATEL, J.) piyush Page 11 of 11