Mulji Kanji Patel vs The State Of Maharashtra, The ...
2002 Latest Caselaw 83 Bom

JUDGMENT

Marlapalle, J.

1. Both these petitions are inter connected and, therefore, they are being disposed of by a common judgment. Brief facts, leading to these petitions, and which are not in dispute, are as under:

2. Under the Integrated Urban Development Project the Municipal Council of Jalna initiated proposal for acquiring the land in Survey Nos. 110, 111, 115 and 116 located on the junction of Aurangabad-Sillod road. Accordingly, the Land Acquisition Officer published notification under section 4(1) of the Land Acquisition Act, 1894 (the Acquisition Act, for short) on 27th January, 1981. Simultaneously, land in City Survey No. 330 falling in Survey No. 110 was also sought tobe acquired and, therefore, Anr. notification under section 4(1) of the Acquisition Act for the said additional land came tobe published on 13th May, 1982. The declaration under section 6 of the Acquisition Act was issued on 26th February, 1982. While this process was going on the Respondent No.6 in Writ Petition No.2023 of 1990 (the tenant, for convenience), who is the Petitioner in Writ Petition No. 2606 of 1990, challenged the acquisition proceedings on the ground that he was a tenant of Plot No. 324 which was part of the land sought tobe acquired. Initially ad-interim stay was granted in his favour but after the Respondents filed their reply the ad-interim stay was vacated. The land acquisition proceedings were concluded by passing an award on 30th March, 1983. On 22nd August, 1983 the tenant approached the Land Acquisition Officer and offered the possession of the Plot No. 324 from City Survey No. 338. Accordingly, possession Panchanama was drawn on 25th August, 1983 and possession was taken over from the tenant on that day itself. The said Panchanama has been signed by the Talathi at Jalna and three other witnesses. The subject plot admeasures 300 Sq. Mtrs.

 3. The land in Survey  Nos.    111  and  116  was divided  into  plots by the Municipal Council after it received the possession of  the  land  from  the  Land Acquisition  Officer  and  it decided to auction these plots so as to raise funds to carry out  the  work  of Integrated Urban  Development  Project.    As the land became the  property  of  the  Municipal  Council,  by virtue of section 88 of the Maharashtra Municipalities Act  (for  short,  the  Municipalities  Act)  the Land Acquisition Officer,  after  passing  the  award,  had disbursed  the compensation amount also to the persons interested, including the tenant. 
 

  4. The Municipal Council invited public bids  for auction  of  the  plots  and  the  Petitioner  in Writ Petition No.  2023 of 1990 (hereinafter referred to as the original bidder, for convenience) participated  in the said bid.   His bid was accepted for plot No.  324 and accordingly he was issued letter dated 11th March, 1985 by the Chief Officer of  the  Municipal  Council, calling  upon  him  to  deposit  the balance amount of Rs.76,000/-.  Accordingly, an amount of  Rs.71,000/was deposited  on 16th March, 1985 and a further amount of Rs.5,000/- was deposited on 5th February, 1986 by  the original bidder.    On  30th December, 1985 the tenant was issued a  letter  by  the  Chief  Officer  of  the Municipal Council informing him that plot No.  324 was allotted to the original bidder and on the said plot a residential  dwelling  was standing which was required tobe removed so as to hand over the possession of  the subject plot  to  the original bidder.  The tenant was called upon to clear the plot by 31st December,  1985. A   copy   of  this  order  was  also  issued  to  the Conservancy  Inspector  and  Tax  Inspector  for   its implementation. 
 

 5. The original bidder approached  the  Municipal Council on remittance of Rs.76,000/- for possession of the subject   plot   but   in-vain.    He,  therefore, addressed an application  to  the  Collector  on  10th January,   1986  pointing  out  that  inspite  of  the requisite amount having been remitted  the  possession of Plot  No.    324  was  not  handed over to him and, therefore,  he  requested  the  Collector   to   issue necessary orders.  By a communication dated 5th March, 1986  the  Collector  called upon the Chief Officer of the Municipal Council to hand over possession  of  the plot  to  the  original  bidder  as  he was successful bidder and he had deposited the entire auction amount, or the consideration amount.   The  Municipal  Council was also called upon to clear the residential dwelling put up  by  the  tenant  on  plot  No.  324 and vacant possession of the plot tobe made over to the  original bidder  as  he  had  a legal right for its possession. There was no legal interference in  handing  over  the plot to  the  original  bidder.  These directions were confirmed and intimated to the  original  bidder  vide letter  dated  10th  March,  1986  by  the  Collector. However, the Municipal Council could not hand over the possession of the subject plot to the original  bidder and, therefore, he sent a telegram to the Collector on 28th April,  1986.    On  the  next day, the Collector called upon the Chief Officer of the Municipal Council to take appropriate steps and hand over the possession of the subject plot to the original bidder.    Inspite of  these  directions  the  original  bidder  did  not receive possession of the subject plot. 
 

 6. It  appears  that the tenant, all of a sudden, submitted a representation to the  Collector  and  the State Government on or about 17th of March, 1988 (that is  after  about  two  years) informing that he was in possession of the subject plot and he was entitled for its possession.  The Collectorate purportedly inquired into this claim and the Tahsildar, Jalna  submitted  a report  on  27th  April,  1988  pointing  out that the subject plot was in possession of the tenant  pursuant to  an agreement of lease for the last about 20 years. The tenants representation was also taken  cognizance of  by  the  Urban  Development  Department and letter dated 11th April, 1988  came  tobe  addressed  to  the Collector as  well  as  the Municipal Council.  On 3rd May, 1988 the Municipal Council submitted a letter  to the  Collector,  Jalna  informing him that the auction money in respect of plot No.  324 and 325 was received and they were allotted to Shri Mulji Kanji  Patel  and Rameshkumar  Karamji Patel respectively but there were some inadvertences in the auction process and on  plot No.    324  the  tenant  had  his  possession  with  a residential dwelling.      The   Municipal    Council, therefore, sought  the  Collectors  guidance.  On 4th May, 1988 the Collector addressed a letter to the Desk Officer informing that the tenant was in possession of the subject land as per the report  submitted  by  the Tahsildar, Jalna.  In view of the rival claims made by the  original  bidder  and  the  tenant  the Collector sought guidance from the State  Government.    Nothing further  happened  for  a period of about one year and the statusquo continued.  Suddenly on 29th  May,  1989 the  Collector,  Jalna addressed a letter to the Chief Officer  of  the  Municipal  Council   directing   the Municipal  Council  to cancel the auction in favour of the original bidder and to refund the  amount  he  had paid to  the Municipal Council.  The Municipal Council was further directed to hand  over  the  plot  to  the tenant by recovering an equivalent amount from him and by signing  an  agreement of lease.  Consequently, the General  Body  of  the  Municipal  Council  passed   a resolution (Resolution  No.   41) on 19th August, 1989 and the President  was  vested  with  the  powers  for disposal of the remaining plots from Survey No.111 and 116, as per rules.  The President immediately issued a letter to  the  tenant  allotting plot No.  324 to him and  called  upon  him   to   remit   an   amount   of Rs.76,000/within one week.  The amount was remitted by the  tenant  on  8th January, 1990 and lease agreement came tobe executed between the Municipal  Council  and the tenant  on  19th January, 1990.  The possession of the plot was handed over to the tenant pursuant to the lease agreement on 15th February, 1990. 
 

 7. In the meantime, the original  bidder  perhaps got  the wind of the Municipal Councils move pursuant to the directions issued by the Collector on 29th May 1989 and, therefore, he submitted a representation  on 18th  August,  1989  to  the Municipal Council for the possession of the subject plot.   He  also  challenged the  resolution dated 19th August, 1989 by approaching the Collector under section 308 of the  Municipalities Act.   On  16th November, 1990 the Collector set aside the resolution.  This order was challenged before  the Divisional  Commissioner  and  Director  of  Municipal Administration at Aurangabad who upheld the said order vide judgment dated 16th December, 1991.    The  order passed  by the Collector, setting aside the resolution of the Municipal Council, has received its finality as it has not been challenged  either  by  the  Municipal Council  or  by  the  tenant  at  any  time after 16th December, 1991 which fact is not in dispute. 
 

 8. The  original bidder also approached the State Government challenging the subsequent allotment of the plot to the tenant and by letter dated 25th September, 1989 the Desk Officer,  in  the  Department  of  Urban Development,  informed  the  Collector that the tenant had no title over the subject plot as he  had  already received the compensation amount pursuant to the award passed  by the Land Acquisition Officer and possession of  the  property  was  handed  over   to   the   Land Acquisition Officer  by  him.  The original bidder had successfully got the allotment of the plot and he  had remitted  the  amount  of Rs.76,000/- way back in May, 1985 itself and, therefore, the plot was required tobe handed over to him by removing the encroachment of the tenant.  A compliance report was directed tobe sent by the Collector.    The  Collector,  therefore,   issued orders   on  18th  November,  1989  calling  upon  the Municipal Council to  cancel  the  allotment  made  in favour  of  the tenant and hand over the possession of the subject plot to the  original  bidder.    He  also directed  the  Chief  Officer to submit the compliance report.  The Municipal Council submitted a  compliance report   to  the  Collector  vide  letter  dated  27th December, 1989/ 4th January, 1990  and  informed  that the possession of the subject plot could not be handed over  to  the  original  bidder  as  the tenant was in possession all along.  The  Collector  approached  the State  Government  vide  his  communication dated 31st March, 1990 and sought guidance.   The  Department  of Urban  Development,  by  communication dated 21st May, 1990, informed the Collector that the  tenant  was  an encroacher  and  he  had no claim on the subject plot. It was further pointed out that once the acquired land vested in favour  of  the  Municipal  Council  it  had become  its  property and it could be disposed of only under  the   provisions   of   section   92   of   the Municipalities Act  and  not  otherwise.    The  State Government  called  upon   the   Collector   to   take appropriate steps to hand over the subject plot to the original  bidder  by  removing the encroachment of the tenant within  15  days.      The   Collector   issued consequential  order dated 1st June, 1990 to the Chief Officer, Municipal Council.    The  Municipal  Council again  expressed  its  inability  by letter dated 22nd June, 1990 to  hand  over  the  subject  plot  to  the original bidder. 
 

 9. It  is  under  these  circumstances  that  the original bidder  filed writ petition No.  2023 of 1990 before this Court on 6th July, 1990 and while granting rule, interim relief in terms of prayer clause (B) was ordered by this Court on 17th July,  1990  and,  thus, the Respondent  No.  6 (the tenant) was restrained, by an order of injunction, from developing,  constructing or improving, in any manner, the subject plot situated in  the Integrated Urban Development Project at Jalna. Pursuant to the said order of injunction the Municipal Council informed the tenant that the  lease  agreement entered  between  him  and  the Municipal Council came tobe cancelled and he was called upon to hand over the possession of the plot within one month failing  which he would  be evicted as an encroacher.  This order has been challenged by the tenant  in  Writ  Petition  No. 2606 of  1990  filed  on  31st  August, 1990.  Interim relief in terms of prayer clause (C) was granted while issuing notice before  admission,  thus,  staying  the impugned orders.      By   further  order  dated  23rd December, 1996 the Municipal Council was  called  upon to  deposit  an  amount of Rs.3,32,000/- in this Court within four weeks.  Petition was admitted and directed tobe heard finally on 9th  of  April,  1997  alongwith Writ Petition No.   2023 of 1990.  The interim relief, relating  to  possession  of  the  subject  plot,  was continued.   The  Petitions could not be heard finally during that last about five years for obvious  reasons namely the monstrous pendency. 
 

 10. We are required to decide, on the backdrop  of the  above  facts, as to who succeeds in acquiring the possession of the subject plot, whether  the  original bidder or  the  tenant.   We have no doubt in our mind that the tenant fails before us  and,  therefore,  the subject  plot  is  required  tobe  handed  over to the original bidder on account of the following grounds. 
 

 11. The  tenant  claims  his  title   through   an agreement  of  lease  purportedly  executed on 25th of August, 1979.  The report submitted by  the  Tahsildar on  27th  April, 1988 to the Collector, Jalna, stating that the tenant was in occupation of the subject  plot for the last 20 years is, therefore, unreliable though it   is  an  admitted  position  that  when  the  land acquisition proceedings were initiated  by  the  State Government,  at the instance of the Municipal Council, the tenant was having some residential dwelling on the subject plot.  The tenant unsuccessfully  came  before this  Court  against  the land acquisition proceedings and on vacating the ad-interim relief, earlier granted in  his  favour,  he  approached  the   Special   Land Acquisition  Officer  on 22nd August, 1983 and offered possession of the plot.    Possession  Panchanama  has been  drawn  on  25th  August, 1983 and admittedly the original owner of the plot Shri Jadhavani Kahami Patel was represented by Shri Kamanibhai  Dhanji  Patel  and possession was  handed over to the Talathi Shri M.  S. Bhogal.  Once the property  was  acquired  and  handed over  to the Municipal Council it stands vested as the property of the Municipal Council and its disposal can be only as per the provisions of  section  92  of  the Municipalities Act.  Subsection (1) of section 92 very specifically states that no council shall transfer any of its immoveable property without the sanction of the State Government.    The allotment of the subject plot to the original bidder was approved by  the  Collector as   well   as  the  State  Government  and  once  the possession  of  the  plot  was  handed  over  and  the original owner as well as the tenant had settled their claim  for  compensation, they remained on the plot as encroachers only.    The  original  landlord  had  not claimed at any time his possession and thus the tenant was  the  encroacher  as  has  been  held by the State Government from time to time.    The  original  bidder certainly  had  a  better  title for possession of the plot as compared to the tenant whose status  was  that of an   encroacher  alone.    The  Municipal  Council, therefore, committed a gross error  in  allotting  the plot  to  the  tenant  on  the  ground  that he was in possession of the same.    The  order  passed  by  the Collector on 29th May, 1989 is illegal. 
 

 12. By resolution  No.   41 passed on 19th August, 1989 the President of the Municipal Council was  given the  authority  for  disposal of the unallotted plots. This resolution has been set aside  by  the  Collector vide  his order dated 16th November, 1990 and the same order has been confirmed by  the  Commissioner.    The order   passed  by  the  Collector  has  received  its finality.  The tenant was allotted  the  plot  by  the President  consequent to the said resolution which was set aside.  When the foundation of the allotment  viz. the resolution does not exist the subsequent documents viz.   the agreement for lease signed on 19th January, 1990 and the possession receipt dated  15th  February, 1990 do  not  remain in force.  In fact, the Collector ought to have waited  for  the  Governments  decision before  he  passed  the order dated 29th May, 1989 and more  so  when  he  had  already  approached  to   the Government  vide his letter dated 4th May, 1988 and he ought to have insisted the Municipal Council  to  hand over the  possession  to  the  original  bidder.   The property of the Municipal Council could not have  been handed  over  to the tenant solely on the basis of the letter of allotment issued by  the  President  on  the basis of the resolution dated 19th August, 1989 as the same  is  contrary  to the provisions of section 92 of the Municipalities Act.  It appears that the Municipal Council as well as  the  Collector  have  handled  the whole issue in a casual manner and without application of  mind  to the legal position regarding the disposal of   the   municipal   council   property   and   more particularly  the  provisions of section 92 (2) of the Municipalities Act and Rule 7 of the 1983 Rules framed thereunder. 
 

 13. Once the tenant had approached before the Land Acquisition Officer to hand over  the  possession  and the possession was taken over, the tenant had no claim except to share the enhanced compensation and he could not,  in  the eyes of law, remain in possession of the plot any time after 25th August, 1983.   The  original bidder  was  successful in the auction and accordingly allotment letter was issued to him on 11th March, 1985 i.e.  after about 1-1/2 years of  the  tenant  handing over  the  possession to the Land Acquisition Officer. The tenant kept quiet for about three years from  11th March, 1985 and he raised his claim for the first time sometime in  March,  1988.   He did not participate in the auction, though such an opportunity was  available to him.    From  March, 1983 to March, 1988 the tenant did not take any steps to agitate  the  issue  of  his title  or  possession  or  any  right  to  retain  the possession on the  subject  plot  and  this  behaviour clearly  goes  to  show that he was aware that all his claims were settled and the possession was taken  over by  the  Land  Acquisition Officer and the land, thus, had vested in favour of the Municipal Council  as  its property.   With the help of the Tahsildar, he appears to have made out some documents, in collusion with the Municipal Council officials and  the  original  bidder was  denied  the  possession  of  the  plot  for years together.  The claim of the tenant for  possession  of the  subject  plot is unsustainable and, therefore, it must fail.  The  State  Government  passed  orders  in favour  of the original bidder on two occasions and it had specifically called upon  the  Collector  to  take steps  to  hand over the possession of the plot to the original bidder, for the reasons elaborately stated in these orders.  These orders indicate  that  the  State Government  had  approved  the  auction  sale  and the allotment of the plot to the original  bidder  in  the said auction. 
 

 14. In the result, Writ Petition No.  2023 of 1990 succeeds and resultantly Writ Petition No.    2606  of 1990 fails.   Rule is made absolute in terms of prayer clauses (C), (D) and (E) in Writ Petition No.  2023 of 1990 whereas rule in Writ Petition No.  2606  of  1990 stands discharged.    The interim order passed in Writ Petition No.  2606 of 1990 also stands vacated.    The tenant  shall  pay costs, quantified at Rs.3,000/- and shall remit the same to the  Registry  of  this  Court within two weeks.  The Municipal Council is at liberty to  withdraw  the  deposit  amount,  with the interest earned thereon.  Possession of the subject plot  shall be  handed  over by the Municipal Council, by removing the encroachment,  if  any,  within  four  weeks  from today, to the bidder.