Bombay High Court
Satish S/O Subhash Patil vs Municipal Council And Anr. on 17 March, 2003
Equivalent citations: (2003) 105 BOMLR 583
Author: D Zoting
Bench: D Zoting
JUDGMENT
D.S. Zoting, J.
1. Heard Mr. P.R. Katneshwarkar, the learned Counsel for the petitioner and Mr. P.M. Shah, the learned Senior Counsel for the respondents.
2. Both the Civil Revision applications are being disposed of by common order as the common question is involved in both the matters.
3. Being aggrieved by the order dated 20th March, 2002, passed by the Civil Judge, Junior Division, Tuljapur, below Exh, 1 in Regular Darkhast Nos. 6/2002 and 7/2002, both the civil revision applications are preferred by the tenants. Respondents constructed shopping complex styled as "Car Parking Mini Shopping Center". There are temporary tin shades on those shop. Respondent Municipal Council passed resolution No. 64 dated 16.9.1998 and decided to auction the shops and accordingly shops were auctioned and the bids of petitioners in respect of the suit shops were accepted by the respondents by executing possession receipts. The respondents proposed one resolution on 30th September, 1999 vide resolution No. 230 and decided to cancel the earlier resolution No. 164, therefore, the petitioners have filed Regular Civil Suits 209/1999 and 210/1999 in the Court of Civil Judge, J. D., Tuljapur, for injunction and for seeking declaration that resolution No. 230 be declared as illegal.
4. In the suits the compromise was arrived at between the parties on 10th March, 2000 and the decree in terms of compromise came to be passed. As per the compromise, the lease of the petitioners over the suit shops was accepted and it was agreed that lease be continued for a period of three years.
5. In both the revision applications, the petitioners have placed reliance on Clause (4) of the compromise decrees. The petitioners have contended that as per the said term, it was also agreed that after completion of the said period of three years, there will be no auction and the petitioners will be continued as a licensee. However, there will be increase in the rent at the rate of 5% for every year. According to the petitioners, in spite of this compromise, the respondents have passed resolution No. 21 dated 16.1.2002 and cancelled the previous resolutions by ignoring the compromise decree and thus the respondents have committed breach of compromise decree and, therefore, the petitioners filed Regular Darkhast No. 6/2002 and 7/2002, in the Court of Civil Judge, J. D., Tuljapur.
6. It is the grievance of the petitioners that the learned Judge did not rely upon the clause No. (4) of the compromise decree and held that the lease of the petitioners is only for three years and thereby rejected the Regular Darkhast Nos. 6 and 7 of 2002 on 10th March, 2002.
7. Clause (4) of the compromise decree shows that the parties agreed that after completion of three years period of the lease, there will be no auction and the petitioners will be continued as lessee subject to the condition that there will be increase in rent at the rate of 5% for every year.
8. For implementing this clause, the petitioners have filed the said Darkhasts. It is to be noted that the respondent is a statutory body. It was the contention of the respondent before the Lower Court that no question, of compliance of Clause (4) of the compromise decree arises in view of the provisions of Section 401 of the Maharashtra Municipal Councils, Nagpur Panchayats and Industrial Townships Act, 1965. Shri P.M. Shah, the learned Senior Counsel appearing on behalf of the respondents relying on the second proviso of Sub-section (1) of Section 401 of the Act, submitted that no Municipal Council can lease out the immoveable property of the Municipal Council for more than three years and if it does so, the prior permission of the Director is required.
The said proviso is as under :-
Section 301(1) subject to the general control of the Council, the Chief Officer may -
(a)...
(b)...
(c)...
(d)...
(e)...
(f)...
Provided that -
(i) if any sanction in the making of any contract is required by this Act, the like sanction shall be obtained for compounding or compromising any claim or demand arising out of such contract;
(ii) if any such suit is in respect of land leased or sold under Sub-section (3) of Section 173, or in respect of any immoveable property sold or leased for a term exceeding three years or otherwise transferred, it shall not be lawful for the Council to compound or compromise in respect of the suit, except with the previous sanction of the Director.
(Emphasis supplied)
9. Plain reading of the second proviso clearly shows that previous sanction of Direct or for the purpose to compound or compromise in respect of a suit pertaining to the lease of property for a term exceeding three years, is required before the said suit is compromised or compounded- It is not disputed that no such previous sanction of the Director as required under those proviso was obtained when the suit was compromised. The effect of it would be that the Clause (4) of the compromise decree for extending the period of lease for indefinite period by simply increasing the rent at the rate of 5% every year would not be binding on the Municipal Council.
10. It is to be noted that there cannot be estoppel against the statute.
11. In this regard, if any authority is needed, it is to be found in M.I. Builders Pvt. Ltd. d. Radhey Shyam Sahu and Ors. .
12. Taking into consideration the legal position, I find that the learned Judge has not committed any error in dismissing the Darkhasts for executing the Clause (4) of the compromise decree, which is against the statutory provisions of Section 401 of the Maharashtra Municipal Councils. Nagar Panchayats and Industrial Townships Act, 1965.
13. The scope of Section 115 of the Code of Civil Procedure. 1908 is very limited. There appears no illegality in the order passed by the learned Judge. The revision applications are devoid of any substance and they deserves to be dismissed at the stage of admission, therefore, both the civil revision applications are dismissed accordingly.
14. The interim relief granting status quo vide order dated 4.4.2002 in C.R.A. No. 254/2002 and dated 17.6.2002 in C.R.A. No. 255/2002, stands vacated.
