Madhya Pradesh High Court
V.B.Singh vs Secretary The State Of Madhya Pradesh on 21 October, 2016
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WP-7890-2011 & WP-18866-2012
WP-7890-2011
(V.B. Singh vs State of M.P and another)
AND
WP-18866-2012
(Smt. Sadhna Upadhyay vs State of M.P and another)
21.10.2016.
Shri Mahesh Shukla, learned counsel for the petitioner and
Shri Rahul Choubey, learned counsel for the respondent No.5 in
WP-7890-2011 .
Shri Rahul Choubey, learned counsel for the petitioner in WP-18866-2012.
Shri S.P. Tiwari, learned counsel for the respondent- Municipal Corporation Singrauli.
With consent of learned counsel for the parties, the matter is finally heard.
1. Between 1988 to 1990, Municipal Corporation, Singrauli and the Special Area Development Authority besides constructing 62 residential flats in Navjeevan Vihar in District Singrauli, also constructed 120 lower income group quarters. Sometime in the year 1994-95, the lower income group quarters were sold to the persons belonging to economically weaker of the society. On 17.4.2003, the Municipal Corporation resolved to sell the flats in an open auction.
2. Writ Petition No.28741/2003 was filed by Shivaji Complex :: 2 ::
WP-7890-2011 & WP-18866-2012 Residents' Association. During pendency whereof, fresh resolution was passed on 18.6.2009. In pursuance thereto, auction was held on 3.3.2010. As fairly admitted by the petitioner, he did not participate in the auction held on 3.3.2010. Be that as it may.
3. The resolution dated 18.6.2009 was questioned in Writ Petition No.9443/2009 (PIL). The Public Interest Litigation was dismissed on 9.8.2010. However, it transpires from the order that deliberations were made for amicable settlement, which could not be reached. Yet, while dismissing the PIL, their Lordships were pleased to observe :
"24. However, we are informed by learned senior counsel for the Municipal Corporation, Singrauli that 17 flats are yet to be auctioned. In case, the occupants of the aforesaid flats approach the respondent Corporation for allotment of flats and if the occupants are ready to pay upset price, it would be open to the respondent-Corporation to sell the flats to the persons who are in occupation of the flats at the first instance or to the persons who may be interested in the allotment of the aforesaid 17 flats which are yet to be auctioned."
4. This observation is the starting point for the present writ petition (WP-7890-2011).
5. Petitioner taking cue from Paragraph 24 of WP-9443-2009 (PIL), filed a Writ Petition, being No.2526/2011 for direction to respondent-Municipal Corporation for consideration of claim of the :: 3 ::
WP-7890-2011 & WP-18866-2012 petitioner for sale of Flat No.57. Petitioner contended that Flat No.57 was amongst 57 Flats. The petition was disposed of on 14.2.2016 in the following terms :-
"i. The petitioner shall deposit the amount and shall apply before the Corporation for allotment of flat in which he is residing or amongst 17 flats. The Corporation shall consider the same sympathetically and in view of the fact that the other persons have extended such benefit, if it is found the petitioner is entitled to get, it be given by executing sale-deed in his favour, otherwise appropriate order may be passed after giving an opportunity of hearing. ii. The aforesaid exercise be completed by the Corporation within a period of two months from the date of deposit and moving an application for allotment."
6. Claim of the petitioner was considered and by impugned order-dated 7.4.2011, was turned down in the following terms :
^^Li"V gS fd vH;kosnd tks Lo;a ;kfpdk Øekad 28741@2003 esa ;kfpdkdrkZ Fkk] ml ij ;kfpdk Øekad 28741@2003 esa ekuuh; mPp U;k;ky; }kjk iznRr fu.kZ; fnukad 09-08-2010 ykxw gksrk gSA ,slh fLFkfr esa ,slk izrhr gksrk gS fd ;kfpdkdrkZ us iz'uk/khu vkns'k fnukad 14-02- 2011 izkIr djus gsrq tks ;kfpdk ekuuh; mPp U;k;ky; esa nk;j dh xbZ Fkh ftldk Øekad 2526@2011 gS] izLrqr djrs le; mDr rF; dk mYYks[k ugha fd;k gksxkA ekuuh; mPp U;k;ky; us ;kfpdk Øekad 28741@2003 esa fu.kZ; iznRr djrs gq, ;kfpdk [kkfjt dh vfirq blh lanHkZ esa i`Fkd ls izpfyr tufgr ;kfpdk Øekad 9443@2009 Hkh :: 4 ::
WP-7890-2011 & WP-18866-2012 [kkfjt dh gSA fnukad 03-03-2010 dks uhykeh lEiUu gqbZ fdUrq vH;kosnd Jh oh0ch0flag us ekuuh; mPp U;k;ky; ds funsZ'k ds ckotwn mDr uhykeh esa Hkkx ugha fy;k vFkkZr~ Li"V gS fd os Hkou ysus gsrq bPNqd ugha FksA mDr frfFk dks vk;ksftr vke uhykeh esa Hkkx fy;s cksyhnkjksa o muds }kjk mPpre cksyh jkf'k dh iw.kZ lwph ekuuh; mPp U;k;ky; esa fnukad 09-03-2010 dks izLrqr dh xbZA mDr uhykeh esa 45 ¶ySV uhyke gq, FksA rRi'pkr ekuuh; mPp U;k;ky; }kjk fnukad 09-08-2010 dks fopkjk/khu ;kfpdk funsZ'k ds lkFk fujkd`r dj nh xbZ FkhA mDr vkns'k ds ifjikyu esa iqu% fjDr ¶YkSVksa dh vke uhykeh gsrq frfFk 21-01-2011 fu;r dj lkoZtfud b'rgkj dk izdk'ku djk;k x;k FkkA fu;r frfFk dks vkosnd }kjk uhykeh dk;Zokgh esa Hkkx ugha fy;k x;kA vkosnd }kjk ,d vksj uhykeh esa Hkkx ugha fy;k x;k ogha nwljh vksj vH;kosnd Jh oh0ch0flag }kjk iz'uk/khu vH;kosnu ekuuh; mPp U;k;ky; esa i`Fkd ls ;kfpdk Øekad 2526@2011 izLrqr dj tks funZs'k izkIr fd;k x;k gS mls izLrqr djrs le; fujkd`r ;kfpdk Øekad 28741@03 ftlesa og Lo;a Hkh fiVh'kuj Fkk] ekuuh; mPPk U;k;ky; ds le{k okLrfod rF; dks Nqik;k x;kA izLrqr vH;kosnu ekuuh; mPp U;k;ky; esa izLrqr ;kfpdk Ø- 2526@2011 esa ikfjr vkns'k fnukad 14-02-2011 ds ifjis{; esa izLrqr fd;k x;k gSA vH;kosnd uxj fuxe LokfeRo ds ¶ySV Ø- 57 dk fdjk;snkj gSA e0iz0 vpy lEifRr varj.k fu;e 1994 ds vUrxZr fdlh Hkh vpy lEifRr dk vUrj.k vke uhykeh vFkok izLFkkiuk i)fr ds vykok vU; fdlh i)fr ls fd;s tkus dk izko/kku ugha gSA vkosnd ds }kjk Lo;a nks ckj vke uhykeh esa Hkkx ugha fy;k x;k ,oa vkosfnr ¶ySV Øekad 57 dk vkoaVu vke uhykeh fnukad 03-03-2010 dks fd;k tk pqdk gS ,slh fLFkfr esa vkosnd dks vkoafVr fd;k tkuk fof/k :: 5 ::
WP-7890-2011 & WP-18866-2012 ,oa fu;eksa ds foijhr gksxkA mDr foospuk ds vk/kkj ij vkosnd Jh oh0ch0flag } kjk izLrqr vkosnu i= fnukad 09-03-2011 vLohdkj fd;k tkrk gS rFkk muds }kjk tek fd;k x;k ;wfu;u cSad vkQ bf.M;k dk psd Øekad 0319378 fnukad 09-03-2011 jkf'k #- 2]34]000@& ewyr% okil fd;k tkrk gSA **"
7. Evidently, petitioner did not participate in the auction held on 3.3.2010; whereon, Flat No.57 along with 44 Flats were auctioned and was purchased by Smt. Sadhna Upadhyay w/o T. Upadhyay, the petitioner in WP-18866-2012. That, Flat No.57 was not available for sale to the petitioner. He did not participate in subsequent auction.
8. That, State Government in exercise of the powers conferred by Section 433 read with Section 80 of the Madhya Pradesh Municipal Corporation Act, 1956 has framed the Rules for regulating the transfer of immovable properties viz. Madhya Pradesh Municipal Corporation (Transfer of Immovable Property) Rules, 1994 (for short Rules 1994).
9. Rule 3 of Rules 1994 mandates :
"3. No immovable property which yields or is capable of yielding an income shall be transferred by sale, or otherwise conveyed except to the highest bidder at a public auction or by inviting offer in a sealed cover :
Provided that if the Corporation is of the opinion that it is not desirable to hold a public auction or to invite :: 6 ::
WP-7890-2011 & WP-18866-2012 offers in sealed covers, for such transfer, the Corporation may, with the previous sanction of the State Government, effect such transfer without public auction or inviting offers in sealed cover:
Provided further that the Corporation may with the previous sanction of the State Government and for reasons to be recovered in writing, transfer such immovable property to a bidder other than the highest bidder.
Provided also that in any such transfer by lease, a reasonable premium shall be payable at the time of granting lease and annual rent shall also be payable in addition during the total period of the lease."
10. Allotment in violation of said Rules has been held to be void by a co-ordinate Bench of this Court in Shashi Kuchhwaha vs Municipal Corporation, Satna 2006 (4) MPLJ 225 wherein it is held :-
8. ... Intendment of Rule 3 of the Rules of 1994 is clear, it lays down that there has to be public auction or by inviting of offer in a sealer over. The shop was allotted by a resolution without inviting any competitive offer. It was clearly a case of favouritism.
It passes comprehension how all of a sudden decision was taken to convert an office room (Pump House) of sanitary department of the Municipal Corporation into the shop without putting the matter before Corporation, the Mayor-in-Council in one fine day without following any procedure prescribed under the Rules of 1994 decided to allot the shop to the petitioner. Mayor-in-Council was not competent :: 7 ::
WP-7890-2011 & WP-18866-2012 authority to make allotment as rent was Rs.6000/- per annum @ Rs.500/- per month. Provisions of the Act and Rules were flagrantly violated. The action not only violated section 80 of Municipal Corporation Act but Rule 3 of the Rules of 1994 also, no straight jacket formula can be applied for applicability of principles of natural justice. The action is illegal and void, thus, I find in the instant case no useful purpose is going to be served by directing the Corporation to give opportunity of hearing and thereafter to take a decision. Such an illegality cannot be allowed to be perpetrated for a moment. Giving an opportunity would be an empty formality and would perpetuate illegal action for some more time. Thus, I am not inclined to agree with the submission raised by Shri R.P. Agrawal, Senior Counsel that opportunity of hearing should have been afforded.
9. Petitioner's counsel has relied upon the Madhya Pradesh Municipalities (The Conduct of Business of the Mayor-in-Council/President-in-Council and the Powers and Functions of the Authorities) Rules, 1998, no doubt it has the financial power to deal with the matter of above Rs. One Lakh upto Rs. Ten Lakhs.
Merely conferral of financial powers in the matter exceeding Rs. One Lakh but not exceeded Rs. Ten Lakhs cannot empower the Mayor-in-Council to give go-by the rules of 1994 and provisions of Section 80 of the Act. Thus, resolution was rightly recalled by Mayor-in-Council, it was patently illegal. Apart from that it was condition mentioned in the order of allotment that any time it could be cancelled. It was also mentioned that in case of departmental objection, permission could be cancelled at any time.
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WP-7890-2011 & WP-18866-2012 In view of nature of allotment itself, it is clear that while making allotment it was understood very well that what they were up to."
11. In view whereof, relief sought for by the petitioner in WP- 7890-2011 seeking quashment of order-dated 7.4.2011 cannot be granted, nor a direction can be given to respondents to provide Flat No.57 or any other flat from 17 flats situated at Shivaji Complex, Navjeewan Vihar, District Singrauli.
12. Consequently, WP-7890-2011 fails and is dismissed. Interim order-dated 9.5.2011 stands vacated. Petitioner is directed to vacate the premises i.e. Flat No.57 within a period of thirty days and hand over its vacant possession to respondent-Municipal Corporation, failing which the Corporation is at liberty to get it vacated with the help of police force and hand over vacant physical possession to Smt. Sadhna Upadhyay, petitioner in Writ Petition No.18866/2012.
13. In the result, WP-7890-2011 is dismissed. Whereas, WP- 18866-2012 is disposed of finally in above terms. No costs.
(SANJAY YADAV)
vinod JUDGE