HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition C No 5789 of 2007 AND Writ Petition C No 5844 of 2007
Smt Neru Soni
Smt Vandna Soni
...Petitioners
VERSUS
State of Chhattisgarh & Another
...Respondents
! Shri V.G.Tamaskar, Advocate for the petitioner
^ Shri N N Roy Panel Lawyer for the State respondent No 1, Shri H.B.Agrawal, Senior Advocate with Ms. Pragya Singh, Adv
CORAM: Honble Shri Satish K Agnihotri J
Dated:04/10/2010
:Judgement
PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF
INDIA
O R D E R
(Delivered on 04th day of October, 2010)
Heard.
1. Since both the writ petitions i.e. Writ Petition
(C) No. 5789 of 2007 and Writ Petition (C) No. 5844
of 2007 involve common facts and question of law,
thus, both are being disposed of by this common
order.
2. Challenge in these petitions i.e. Writ Petition
(C) No. 5789 of 2007 (for short `the first petition’)
and Writ Petition (C) No. 5844 of 2007 (for short
`the second petition’) is to the order dated
08.06.2007 (Annexure P/4) passed by the Estate
Officer, Municipal Corporation, Bhilai, District
Durg, whereby allotment of shop bearing No. F/16 in
the first petition and No. F/15 in the second
petition, Shitla Commercial Complex, Bhilai, to the
petitioners on 27.03.2006, were cancelled, and the
petitioners were directed to make an application for
refund of the security deposit and other amount.
3. The indisputable facts, in nutshell, as
projected by the petitioners, in both the writ
petitions are that pursuant to the notice for auction
sale, published in “Dainik Bhaskar”, Raipur Edition,
on 08.03.2006, for sale of shops in Shitla Commercial
Complex, Bhilai, the petitioners participated in the
said auction sale and the petitioners, being the
highest bidders, were allotted shop No. F/16 and
F/15, respectively. A security deposit to the tune of
Rs. 41,825/- (Annexure P/2 in both writ petitions)
was deposited and 1/3rd amount of the final bid to
the tune of Rs. 56,500/- and Rs. 57,000/-
respectively were deposited. After completion of the
auction and deposit of installments, all of a sudden,
the petitioners received the impugned order dated
8.6.2007 (Annexure P/4) before execution of the
agreement, to the effect that that the shops allotted
earlier in auction to them had been cancelled.
Thereafter, respondent-Corporation fixed the date for
re-auction of the shop on 23.08.2007. The petitioners
filed a writ petition being W.P.(C) No. 4982/2007 and
4983/2007 respectively before this Court, which were
dismissed by a common order dated 27.08.2007
(Annexure P/6), on the ground of non-joinder of State
of Chhattisgarh, as a necessary party.
4. The petitioners have preferred the instant
petition impleading State of Chhattisgarh as a
necessary party on the ground that no notice was
given to the petitioners before canceling the
auction sale. However, it was stated that re-auction
fixed on 23.08.2007 (Annexure P/5) for the shops in
question could not take place on account of the
interim order granted by this Court on 05.10.2007 (in
both the writ petitions).
5. Shri Tamaskar, learned counsel appearing for the
petitioners would submit that the contract of sale
was complete when the final bid was accepted by the
respondent No. 2. The same could not have been
cancelled without affording an opportunity of hearing
to the petitioners. In the auction notice, there were
no such terms or conditions which requires approval
of the State Government, after acceptance of the
final bid. Even otherwise, the respondent-Corporation
was competent to lease, sale or otherwise convey the
immovable property belonging to the Corporation to
any other person without subsequent approval of the
State Government.
6. In the written submission, though the point was
not pleaded , however, during the course of argument,
learned counsel for the petitioner developed a new
point that the State Government has no competence to
grant approval as the land in question belong to the
Bhilai Steel Plant (for short `the BSP’) and the
same was transferred to respondent-Corporation, on
lease. Thus, the State could not put any restriction
prescribed in the Chhattisgarh Municipal Corporation
Act, 1956 (for short `the Act, 1956′). Clause (i) of
the proviso to sub-section (5) of Section 80 of the
Act, 1956 clearly prescribes is that the 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 such property is held. The
requirement of sanction of the Government, more so,
previous sanction is only in case of land which is
under the ownership of the Corporation.
7. On the other hand, Shri Agrawal, learned Senior
counsel appearing with Ms. Pragya Singh, counsel for
the respondent-Corporation would submit that once the
petition praying for the same relief has been
dismissed on any ground, may be non-joinder of the
party, the same issue cannot be re-agitated in a
fresh petition. These petitions are barred by
principle of `Res-Judicata’ also. The State
Government is the final authority to grant sanction
and in the case, since sanction was not granted by
the State Government, the sale in favour of the
petitioners cannot be held as complete. Under the
provisions of section 80(5)(ii) of the Act, 1956, it
is provided that no land 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. Secondly, right of the
petitioners arose from a contractual agreement, thus,
writ petition is not maintainable to enforce such
right which had not accrued till date from the
contractual agreement. Both the respondents deny the
statement of the petitioners that the Corporation was
holding the land on lease granted to them by the BSP.
8. Shri Agrawal places reliance heavily on a
decision of the High Court of Madhya Pradesh in
Municipal Corporation, Satna v. Badri Prasad & Others1
and on a decision of a Division Bench of this Court
in Vijay Ratan Lal Rathi & Another v. State of
Chhattisgarh & Others2.
9. Learned counsel appearing for the
State/respondent No. 1would submit that vide clause
13 of the Terms and Conditions of Allotment of Shops
by Auction (Annexure P/7), all the participants
including the petitioners were made aware that after
completion of the auction, the auction would be
subject to sanction/approval of the State Government.
Thus, the right in favour of the successful bidders
would come into existence only after the State
accords sanction.
10. Reliance of the Shri Agrawal on Surguja
Transport Service v. State Transport Appellate
Tribunal, M.P. Gwalior & Others3 which was referred
with approval in Upadhyay & Co. v. State of U.P. &
Others4, is misplaced in the facts of the present
cases as the Supreme Court, in a case, where the
petition was withdrawn without permission of the
Court, and the petitioners re-instituted a fresh
petition, held that second petition is not
maintainable on the basis of public policy as the
same would encourage Bench hunting. But there is no
bar on other remedies like a civil suit or a petition
under Article 32 of the Constitution of India. Filing
of a second petition can also not be held as barred
by principle of res-judicata as the same is
applicable, when case/suit is adjudicated on merit.
In the cases on hand, earlier writ petitions were
dismissed for want of non-joinder of party, though
certain observations were made, but the same were
only to find out asto whether or not, the State
Government was a necessary party. Thus, the objection
of the respondent-Corporation on maintainability of
the instant petitions, are rejected.
11. There is no dispute that in the auction notice
dated 08/09.03.2006 (Annexure P/1), there was no
prescription with regard to subsequent sanction/
approval of the State Government. Clause 4 of the
general terms and conditions of the auction notice
provides that the Commissioner of the Corporatoin is
the final authority to accept the bid of the parties
and it does not prescribe for approval of the State
Government for allotment. Clause 4 of the general
terms and conditions of the auction notice dated
08.02.2006, reads as under:
“mPpre cksyhnkrk dh jkf’k dks Lohd`r
;k vLohd`r djus dk vf/kdkj vk;qDr]
uxj fuxe fHkykbZ dk gksxkA”
12. On going through the Terms and Conditions of
Allotment of the Shops by Auction (Annexure P/7), it
is clear that clause 13 provides for approval of the
State Government for allotment of shops. It is
specifically mentioned in clause 13 that the approval
of the State Government will be sought and only after
approval the highest bidder would acquire the right
of patta on the land. The bidder will not have any
right over the shop/building if the allotment is not
approved by the Government and the bidder shall be
entitled to refund of the amount with interest. No
claim thereof shall be entertained. Clause 13 of the
Terms and Conditions of Allotment of Shops by Auction
(Annexure P/7) reads as under:
“fuxe }kjk cksyh lekIr gksus ds
ckn fu;ekuqlkj jkT; `kklu ls
Lohd`fr izkIr dh tk,xhA Lohd`fr
izkIr gksus ds ckn ;g ekuk
tkosxk dh cksyhnkj ls ml laifRr
ds iV~Vs dk vf/kdkj fu;ekuqlkj
izkIr gksxkA ;fn jkT; `kklu ls
Lohd`fr izkIr ugha gksrh rc rd
cksyhnkj dks lacaf/kr Hkwfe
nqdku@Hkou dk dksbZ vf/kdkj
izkIr ugha gksxk ,oa fcuk C;kt
{kfriwfrZ ds ek jkf’k izkIr djus
dk vf/kdkj gksxk rFkk dksbZ nkok
fuxe }kjk ekU; ugha gksxkA ”
13. Sub-section 5 of Section 80 of the Act, 1956 is
the relevant provision in the case on hand. Clause
(i) of the proviso to Section 80(5) does not admit of
any ambiguity. This clearly provides that any
property vesting in the Corporation shall be leased,
sold or otherwise conveyed in a manner that is likely
to prejudicially affect the purpose of the trust
subject to which such property is held. Thus, it is
clear that if a property in trust is vested in the
Corporation, there is no other restriction except the
conveyance of the property by lease or sale other
otherwise should not be prejudicially affecting the
purpose of the trust. Clause (ii) of the proviso to
section 80(5) prescribes that no land of the
Corporation shall be sold or otherwise conveyed
without the previous sanction of the Government and
further, 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 any other enactment for the time being in
force.
14. Reliance of Shri Agrawal on a decision of a
Division Bench of this Court in Vijay Ratan Lal Rathi
(supra), is not relevant to the facts of the case as
there was no question of cancellation of allotment of
shops in auction purchase.
15. Section 80 of the Act, 1956 is applicable not
only to the property vested in the Corporation but
also to the property which is under the management
of the Corporation. Assuming without holding that the
land was held by the respondent-Corporation on lease,
but the same was under the management of the
Corporation. Thus, the provisions of section 80 would
be applicable to the facts of the present cases.
16. The main plank of the argument of learned
counsel for the petitioner is that the land was held
by the respondent-Corporation on lease granted by the
BSP, fails on a simple ground that neither a transfer
deed indicating transfer of land or any other
document has been produced, particularly in the teeth
of the strong denial of the fact by the respondents.
The BSP is not present to assist the Court in
establishing the averments with regard to nature of
the land, as stated by the petitioners. Thus, any
issue on the above stated basis cannot be adjudicated
upon for want of sufficient materials. This involves
disputed question of facts and the same cannot be
decided in a writ jurisdiction on the basis of
averments made in the pleadings. The competent court
is civil court, having the jurisdiction.
17. In case of Badri Prasad (supra), there was no
consideration firstly with regard to general terms
and conditions of contract and secondly, whether the
terms and conditions of the auction was a part of the
auction notice. Thus, the same is not applicable to
the facts of the instant cases.
18. On the basis of aforestated reasons and
analysis, I am constraint to hold that clause 13 of
the Terms and Conditions of Allotment of Shops by
Auction (Annexure P/7), was a part of the contract
and thus, the auction sale was not complete as
sanction/approval was not accorded to the
petitioners. This is not the case of the petitioners
that the terms and conditions are inconsistent with
the statutory provisions. Thus, no right has accrued
in favour of the petitioners before the sanction/
approval was accorded to the auction sale. However,
it is not clear from the pleadings of the cases asto
whether all the installments have been paid or only
one installment has been paid.
19. As a result, both the writ petitions are
dismissed. The petitioners are entitled to refund of
the security amount as well as other amount which has
been deposited by them, with interest.
20. There shall be no order asto costs.
JUDGE
Amit
HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition (C) No. 5789 of 2007
PETITIONER : Smt. Neru Soni.
VERSUS
RESPONDENT : State of Chhattisgarh &
Another.
A N D
Writ Petition (C) No. 5844 of 2007
PETITIONER : Smt. Vandna Soni.
VERSUS
RESPONDENT : State of Chhattisgarh &
Another.
Post for pronouncement of order on .. day of October,
2010.
J U D G E
