Bombay High Court
Jaikisandas Balchand Pamnani And ... vs Municipal Corporation Of Greater ... on 21 January, 1991
Equivalent citations: AIR1991BOM341, AIR 1991 BOMBAY 341
ORDER
1. This petition under Art. 226 of the Constitution impugns an auction sale in exercise of the power vested in the Municipal Corporation of Greater Bombay vis-a-vis S. 206 of the Bombay Municipal Corporation Act being Bombay Act No. III of 1888 (Act).
2. Property measuring 813.112 sq. mts. and bearing City Survey No. 8A/100 together with the structure thereon, described with greater precision in para 2 of the petition belonged to Balchand M. Pamnani. Petitioners are the sons of the said Balchand who expired on 11-1-1984. Property taxes due on the said property inclusive of and up to 31-3-1982 had been paid. Taxes due as from 1-4-1982 were in arrears for which reason the property was attached u/S.203 of the Act. After the attachment had been effected the Corporation issued a sale proclamation. The advertisement was published in various newspapers of Bombay and the correct translation of that appearing in the 'Bombay Samachar' dated 8-4-1985 is to be found at Ex. J. Therein the particulars of the property to be brought to sale are given out as thus:--
"Land of freehold tenure with building standing thereon situated at the junction of Wadi Bunder Road and Mazgaon Road, Bombay admeasuring 244.91 sq. mts. or thereabout New Survey No. -- cadestreal Survey No. 8A/100 of Mazgaon division and Municipal 'E' Ward No. 7023 (1-4), 7022 (4)(5), Street No. 32, Wadi Bunder Road."
The auction was held and the successful bidder was the sixth respondent having acquired the property at a price of Rupees 70,000/-. Petitioners instituted the present petition on 24-1-1986. The stand taken by them was that the sale suffered from a variety of shortcomings. The only ground taken up at the hearing is that there was a misdescription of the property in the sale proclamation, which had a vital bearing on the price fetched at the auction. This vitiated the sale for which reason the same deserved to be set aside. The BMC and the auction-purchaser both defend the impugned auction.
3. Admittedly the property measures 813.112 sq. mts. It is not admeasuring 244.91 sq. mts. True, Ex. J uses the words equivalent of "thereabout". But this is in no way an approximation to the actual size of the property. In fact, the size of the property given out in the advertisement is about 1/4th of the actual area. Therefore the word for 'thereabout' could not be taken as an approximation of the actual area of the property. Counsel for the Corporation submits that petitioners should be happy for the area sold is only a fraction of the actual size. The question is not of what reaction the petitioners should show, but of how the intending bidders looked upon the proclamation when they read the advertisement in newspapers. Fairly read, the advertisement gave the impression that one whole structure situated at a particular junction stood on land measuring 244.91 sq. mts. It is not as if the Corporation in the advertisement made it clear that they were going to auction only a part or portion of the property. They had the liberty to do so under sub-sec. (2) of S. 206 of the aforementioned Act. This sub-section permits a portion of the immovable property attached to be sold if "the same can be conveniently severed". The advertisement does not indicate that the Corporation was selling a portion of the property because it could be conveniently severed. On the other hand, the intending bidders would get the impression that the entire property attached was of a far lesser area. A material mis-description in a sale proclamation would vitiate the sale. Here, the same has affected that class of bidders who were likely to bid had a correct description of the property been given in the advertisement. Had the Corporation disclosed the true size of the property the bidders would have been those interested in the purchase of large sized properties and they could have been certainly more affluent than those who attended the auction in response to the advertisement. The bidding would have been at a higher price. Counsel for the Corporation argues that a reserve bid had been fixed and this was so done having regard to all the circumstances. The point is not what steps the Corporation took to prevent what it understood to be an under-selling of the property. The question has to be considered from the perspective of the person whose property was being sold. The least such person was entitled to was a fairly accurate description of his property so as to secure the presence of all such persons as would make fair bids of the property regard being had to its size, location and other features. In the instant case, this was not done and the sale stands vitiated.
4. The question now surviving is to work out the equities of the situation. Pursuant to the interim relief granted, petitioners are still in possession of the property and have been recovering rent from the tenants. A sizable portion of the collected rent has gone towards the payment of the property taxes. What remains is arrears -- if any due -- plus penalty and the expenses connected with the sale -- if any. Petitioned shall pay up the same within eight weeks from today. Upon such payment being made the sale in favour of respondent No. 6 shall stand set aside. After the payment has been made petitioners will be at liberty to withdraw whatever sum remains in deposit in the account opened by them pursuant to the order passed on 28-4-1986. The BMC to return the money paid by respondent No. 6 towards acquisition of the title to the property. Rule in these terms made absolute with parties being left to bear their own costs.
Order accordingly.