Madhya Pradesh High Court
Municipal Corporation, Satna vs Badri Prasad And Ors. on 4 January, 2000
Equivalent citations: 2001(4)MPHT387
JUDGMENT S.C. Pandey, J.
1. This is an appeal under Section 100 of the Code of Civil Procedure, filed by the appellant/defendant against the judgment and decree dated 21-3-1990, passed by IInd Additional District, Judge, Satna, in Civil Appeal No. 87-A of 1987, arising out of judgment and decree dated 19-1-1987, passed by IInd Civil Judge Class-I, Satna, in Civil Suit No. 73-A of 1984.
2. Shortly staled, the tacts necessary tor the disposal of this appeal are that the respondent No. 1 filed Civil Suit No. 73-Aof 1984 in the Court of Ilnd Civil Judge, Class I, Satna, claiming that he was entitled to a declaration that he acquired the rights of a lessee in the auction held on 21-5-1984 by the appellant-Municipal Corporation, Satna. The appellant was made defendant No. 1 in the plaint. The State of Madhya Pradesh, the respondent No. 2 in this appeal, was arrayed as defendant No. 2 and Siyasharan, the respondent No. 3 in this appeal, was arrayed as defendant No. 3 in the plaint, in whose favour the suit-shop was allotted by the appellant, on refusal for grant of its sanction by the State Government in favour of the respondent No. 1. It was also claimed by the respondent No. 1 that he be declared as a lessee of the suil-property for a rent of Rs. 150/- per month for a period of 35 months with a right of renewal on payment of increase in rent by 25% of the rent. The respondent No. 1 also sought a mandatory injunction against the appellant as well as the Stale Government for following the conditions of the auction and prayed for declaration that the order of the respondent No. 2, dated 17-7-1984 is illegal and without jurisdiction. The respondent No. 1 also claimed possession from the respondent No. 3 Siyasharan and further claimed that an order of permanent injunction be passed restraining the appellant and the respondent No. 2 from interfering with his possession over the suit property.
3. The respondent No. 1 claimed that he was one of the persons who filled the tender form which was for auction of 56 shops, on 21-5-1984 and deposited the premium in accordance with the terms of the tender. It was also alleged by the respondent No. 1 that the auction was held according to the terms of the tender and he was declared as a successful bidder; and accordingly, the contract was totally completed after the acceptance by the Commissioner, Municipal Corporation, Satna. It was also claimed that the contract having been completed, the Municipal Corporation, Satna allotted the suit-shop to the respondent No. 3, Siyasharan for the reason that allotment of the suit-shop ,in his favour was not sanctioned by the State Government by order dated 17-7-1984. It was claimed by the respondent No. 1 that the order of the State Government was without jurisdiction and, therefore, the cancellation of the allotment was illegal and without the authority of law. It was further claimed that pursuant to the order dated 17-7-1984, grant of lease in favour of respondent No. 3, Siyasharan, made by the Municipal Corporation, Satna, was totally illegal as it was he who was the legal lessee of the suit-shop. Accordingly, the aforesaid reliefs were claimed by the respondent No. 1.
4. The appellant, inter alia, pleaded in its written statement that the auction held by it was subject to the sanction of the Government. Since the sanction of the allotment of the suit-shop to the respondent No. 1 was not granted by the State Government, the appellant had re-auctioned the property and allotted it to the respondent No. 3, Siyasharan.
5. The Trial Court, having framed the relevant issues on the point, after full trial, dismissed the suit filed by the respondent No. 1.
6. In appeal, the judgment and decree of the Trial Court were reversed by the Lower Appellate Court, holding that the respondent No. 1 had a right to obtain possession of the suit-shop and also declaration to the effect that the subsequent auction of the property on 28-8-1984 and the order of the Government dated 17-7-1984 refusing to grant sanction, were invalid.
7. Thereupon, the appellant-Municipal Corporation, Satna, has filed this appeal which was admitted by order of this Court dated 22-4-1991, on the following substantial question of law :--
"Whether, in the facts and circumstances of the case, the mandatory provisions contained in Section 80 (5) of the M.P. Municipal Corporation Act, 1956 gives jurisdiction to the State Govt. to reject the tender offered by the plaintiff and to order fresh auction ?"
8. Section 80of the Municipal Corporation Act, 1956 (henceforth 'the Act') reads as follows :--
"80. Provisions governing the disposal of Municipal property vesting in or under the management of Corporation.-- (1) No streets, nazul lands public places, drains or irrigation channels shall be sold, leased or otherwise alienated, save in accordance with such bye-laws as may be made in this behalf.
(2) Subject to the provisions of Sub-section (I)-
(a) the Commissioner may, in his discretion grant a lease of any immovable properly belonging to the Corporation, including any right of fishing or of gathering and taking fruit, flowers and the like, of which the premium or rent, or both, as the case may be, does not exceed five hundred rupees for any period and exceeding twelve months at a time :
Provided that every such lease granted by the Commissioner, other than the lease of the class in respect of which Standing Committee has by resolution exempted the Commissioner from compliance with the requirements of this proviso, shall be reported by him to the Standing Committee within 15 days after the same has been granted;
(b) with the sanction of the Standing Committee, the Commissioner may by sale or otherwise grant a lease of immovable property including any such right as aforesaid, for any period not exceeding three years at a time of which the premium or rent or both, as the case may be, for any one year does not exceed three thousand rupees;
(c) with the sanction of the Corporation the Commissioner may lease, sell or otherwise convey any immovable property belonging to the Corporation.
(3) The Commissioner may-
(a) in his discretion dispose of by sale, letting out on hire or otherwise, any movable property belonging to the Corporation not exceeding five hundred rupees in value;
(b) with the sanction of Standing Committee, dispose of by sale, letting out on hire, or otherwise any movable property belonging to the Corporation not exceeding five thousand rupees in value;
(c) with the sanction of the Corporation sell, let out on hire or otherwise convey any movable property belonging to the Corporation.
(4) The sanction of the Standing Committee or of the Corporation under Sub-section (2) or Sub-section (3) may be given either generally for any class of cases or specifically in any particular case.
(5) The foregoing provisions of this section shall apply to ever)' disposal of property belonging to the Corporation made under or for the purpose of this Act:
Provided that-
(i) no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudicially affect the purpose of the trust subject to which each property is held;
(ii) no land exceeding twenty-five thousand rupees in value shall be sold or otherwise conveyed without the previous sanction of the Government and every sale, or other conveyance of property vesting in the Corporation shall be deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force."
However, we are concerned in this appeal with interpretation of Section 80 (5) of the Act.
9. It has been argued on behalf of the appellant that the proviso (ii) to Sub-section (5) of Section 80 of the Act provided that no land exceeding Rs. 25,000/- in value could be sold or otherwise conveyed without the sanction of the State Government and, therefore, the order of the State Government dated 17-7-1984 refusing sanction to the auction held in favour of the respondent No. 1 was valid. The Lower Appellate Court was not right in coming to the conclusion otherwise and on this short point this appeal deserves to be allowed.
10. As against this, the learned counsel for the respondent No. 1 argued that the said proviso (ii) to Section 80 (5) of the Act would not be applicable to the facts of this case for the reason that there is no prohibition of leasing out the property without sanction of the State Government. The said proviso is limited to selling of property or otherwise creating its conveyance, that is to say, it relates to absolute transfer and not a transfer by way of lease which is partial transfer of the property in the eyes of law. It has been urged that this inference can be drawn from the proviso (i) to Sub-section (5) of Section 80 of the Act wherein its has been said that no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed. The word 'leased' in proviso (ii) has been deliberately omitted by the Legislature in order to make a distinction that the proviso (ii) to Sub-section (5) of Section 80 of the Act is limited to conveyance which means absolute transfer of the property.
11. It appears to this Court that Section 80 of the Act is of inexhaustive section and deals with the disposal of the Municipal properly which is vested in it or which is under its management. The section makes a distinction between two kinds of property. However, the section is not very happily worded and, there are certain overlapping provisions. Sub-section (1) of Section 80 of the Act deals with streets, lands, public places, drains and irrigation channels and restricts the right of the Municipal Corporation to sell, lease or otherwise alienate the suit property subject to bye-laws and subject to Sub-sections (2), (3) and (4) of Section 80 of the Act. Then Sub-section (5) says that the aforesaid provisions shall apply to every disposal of the properly belonging to the Municipal Corporation made under or for the purpose of the Act, subject to aforesaid two provisos. The plain meaning of main part of Sub-section (5) of Section 80 of the Act is that every properly belonging to the Municipal Corporation shall be sold, leased or otherwise alienated subject to Sub-sections (1), (2), (3) and (4) of Section 80 of the Act and also in accordance with bye-laws framed by the Municipal Corporation. In this case, it is not in dispute nor any substantial question of law has been framed to the effect that while leasing out the property, if there was any violation of any of the provisions of Sub-section (1), (2), (3) or (4) of Section 80of the Act; or of any bye-law framed by the Municipal Corporation. It is not disputed that the auction in favour of the respondent No. 1 was validly done but it had to be cancelled subsequently on account of the fact that the State Government did not grant the sanction. It appears to this Court that the proviso (ii) restricts the powers of the Municipal Corporation to sell or otherwise convey the property if it exceeds Rs. 25,000/-, unless the State Government accords its sanction. Such a restrictive provision has to be strictly construed. In the proviso (ii) the word 'leased' has 5een omitted whereas in proviso (i) the word 'leased' has been specifically used. Similarly, in Sub-section (1) of Section 80 of the Act the word 'leased' has been used alongwith the word 'alienated' to make it more comprehensive, saying that the property could be leased, sold or otherwise alienated subject to Sub-sections (2) and (3) and also subject to bye-laws framed by the Municipal Corporation. Then the question arises why the Legislature did not use the same words in proviso (ii) to Sub-section (5) of Section 80 of the Act. It appears to this Court that this must have been done on purpose because the proviso (ii) to Sub-section (5) of Section 80 of the Act only applied to sale or otherwise conveyance whereby the property is absolutely transferred, and not to lease which is only a partial transfer of an interest in the property for a period given in the lease-deed, or in the agreement to lease. Such a lease is liable to be terminated on conditions mentioned in the lease-deed or by efflux of time. The legislature among other things, expressly restricted the grant of a lease stating in so many words that the properly vesting in trust in Municipal Corporation cannot be leased in a manner which would adversely affect the purpose of trust. Obviously, this proviso is applicable to that property which are vested in the Corporation and its capacity is that of a statutory trustee. The proviso (ii) to Sub-section 5 of Section 80 of the Act, however, deals with these cases where the Municipal Corporation seeks to sell or otherwise convey the property worth more than Rs. 25,000/-. Sale is absolute transfer. The words 'otherwise convey' are used in the same sense implying the transfer absolutely by modes other than sale. The words 'sale or conveyance' used in the aforesaid proviso can be said to he 'a term of art'. They have specific and established meaning. It is clear that the Legislature deliberately omitted the word 'lease' implying thereby that proviso (ii) to Sub-section (5) of Section 80 of the Act would not apply to a lease. Consequently, the argument of the learned counsel for the respondent No. 1 is accepted and it is held that it is not necessary to obtain sanction of State Government in respect of property for which lease is created. The restriction is limited to sale or absolute transfer of the property by any other mode known to law where value of the concerned property exceeds Rs. 25,000/-.
12. For the reasons aforesaid, the substantial question framed by this Court is decided against the appellant and in favour of the respondent No. 1. The appeal fails and it is hereby dismissed accordingly. No costs.