Bombay High Court
Shri. Sambhaji Shivaji Patil And ... vs Sangli, Miraj And Kupwad ... on 12 October, 2017
Bench: Vasanti A. Naik
915-WP-1761-16-Jt.doc
Sharayu.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1761 OF 2016
Shri. Sambhaji Shivaji Patil & Ors. ...Petitioners
Versus
Sangli, Miraj & Kupwad Municipal
Corporation & Anr. ...Respondents
----------
Mr. Tejpal Ingale, for the Petitioners.
Mr. A.P. Vanarase, AGP, for the Respondent No. 2-State.
Mr. Sudhir Prabhu, for the Respondent-corporation.
----------
CORAM : SMT. VASANTI A. NAIK &
RIYAZ I. CHAGLA, JJ.
DATE : 12 October 2017
ORAL JUDGMENT : [Per Smt. Vasanti A. Naik J.]
Rule. Rule, made returnable forthwith.
2. The writ petition is heard finally at the stage of
admission with the consent of the learned counsel for the
parties.
3. By this writ petition, the petitioner seeks a direction
915-WP-1761-16-Jt.doc
against the respondent No. 1-Sangli, Miraj and Kupwad
Municipal Corporation to execute the sale deeds in respect of
the shop premises occupied by the petitioners, in pursuance of
its Resolution No. 194 dated 19th November 2005.
4. Twenty eight shops in Sant Dasram Kelkar municipal
market were leased to the petitioners and some others in the
year 2001. The rent of the shops was enhanced by the
corporation from year to year. Since the petitioners claimed to
be small time shop keepers and since they were not able to bear
the burden of the enhanced rent, they offered to purchase the
individual shops at the market rate. On the representation made
by the Petitioners, the municipal corporation passed a resolution
on 19th November 2005 deciding to sell the shops to the
leaseholders at the market rate. It is the case of the petitioners
after the State Government granted approval to the resolution of
the municipal corporation on 15th January 2007, the
corporation executed the sale deeds of the leased shops in
favour of some of the leaseholders on 24th April 2009. It is the
case of the petitioners that though the sale deed was executed in
favour of some of the shop keepers on 24th April 2009, the
municipal corporation did not execute the sale deed of the
leased shops in favour of the petitioners. It is the case of the
petitioner that the representation dated 28 September 2011 was
not answered by the corporation. According to the petitioner,
the petitioners continued to send reminders to the corporation
915-WP-1761-16-Jt.doc
for the execution of the sale deeds of the leased shops in their
favour, but without any success. The petitioner has therefore
filed the instant petition on 21st December 2015 for a direction
against the respondent-corporation to execute the sale deeds of
the leased shops in favour of the petitioners at the market rate at
which the shops were sold to the other leaseholders on 24th
April 2009.
5. Shri. Ingale, learned counsel for the petitioners
submitted that the action on the part of the municipal
corporation in not executing the sale deeds of the shop in favour
of the petitioners while executing the same only for some of the
lease holders on 24th April 2009 is arbitrary and discriminatory.
It is submitted that the petitioners had continuously made
representations to the municipal corporation to sell the shops in
their favour at the rate at which the shops were sold to the other
lease holders on 24th April 2009. It is submitted that the
corporation has now agreed to sell the shops to the petitioners
but at the existing market rate. It is stated that the action on the
part of the corporation of seeking a higher market rate for the
shops is clearly discriminatory as the shops were sold to the
other lease holders on 24th April 2009 at the market rate that
was then in existence.
6. Shri. Prabhu, the learned counsel for the corporation
opposed the prayer made in the petition. It is submitted that the
first representation was made by the petitioners, as belatedly as
915-WP-1761-16-Jt.doc
on 28th September 2011 though the sale deeds were executed
in favour of the several lease holders on 24th April 2009. It is
submitted that though the corporation was ready to sell the
shops to the petitioners at the market rate along with the other
leaseholders to whom the shops were sold on 24th April 2009
the petitioners had not agreed to purchase the same. It is
submitted that in view of the provisions of Section 79(d) of the
Maharashtra Municipal Corporation Act, it would not be
permissible for the municipal corporation to sell the shops to the
petitioners at the market rate of April 2009. The learned counsel
sought for the dismissal of the writ petition.
7. Without adverting to the dispute whether the
petitioners had indeed agreed on 24th April 2009 to purchase
the shop blocks or not, it would be necessary to partly allow the
writ petition and grant some relief to the petitioners. The
representation of the petitioners and the other lease holders that
the shops may be sold to them, was favourably considered by
the municipal corporation and the resolution in that regard was
passed by the corporation on 19th September 2005. The State
Government approved the resolution dated 19th November
2005 by the order dated 15th January 2007. Some of the lease
holders purchased the shops possessed by them and the sale
deeds were executed in their favour on 24th April 2009. The
petitioners must have been surely aware about the sale of the
shops by the municipal corporation in favour of some of the
915-WP-1761-16-Jt.doc
other leaseholders. It is the case of the corporation that the
petitioners made the representation expressing their intention to
purchase the shops only on 28th September 2011. According to
the petitioners, they had made the representation immediately
after the shops were sold to the other leaseholders on 24th April
2009. Be that as it may, the petitioners had not approached a
Court of law for more than six years from the date on which the
shops were sold to the other leaseholders on 24th April 2009. It
is held by the Hon'ble Supreme Court that making of successive
representations is inconsequential as the representations cannot
stop limitation. If the representation of the petitioners was not
favourably considered, the petitioners ought to have approached
this Court within reasonable time from the date on which the
first representation was made. If the representations of the
petitioners were not answered, much less favourably, the
petitioners ought to have filed the writ petition immediately in
the year 2010. The petitioners have however failed to do so and
have filed the writ petition on 21st December 2015.
8. In this background, even if we hold that the
petitioners would also be entitled to purchase the shops like the
other leaseholders that had purchased the same on 24th April
2009, in our view, the petitioners would not be entitled to
purchase the same at the market value, as on 24th April 2009.
The petitioners cannot be permitted to purchase the shops at the
same rate at which the other lease holders has purchased the
915-WP-1761-16-Jt.doc
same, more than eight years earlier. The respondent-corporation
has agreed to sell the shops to the petitioners at todays market
rate. However, since the petitioners had filed the writ petition
on 21st December 2015, it would be necessary in the
circumstances of the case and in the interest of justice to direct
the corporation to consider the market rate of December 2015
for sale of the shops to the petitioners. The corporation should
determine the market value through the town planner or valuer
or in any other manner that is permissible in law. The ready
reckoner may also be considered while determining the market
value. The petitioners may be permitted to tender the
submissions in respect of the market value of the shops, as on
December 2015.
9. Hence, for the reasons aforesaid, the writ petition is
partly allowed. The respondent No. 1- municipal corporation is
directed to execute the sale deeds in respect of the shop blocks
in favour of the petitioners at the market value, as of December
2015, within four months.
10. Rule is made absolute in the aforesaid terms, with
no order as to costs.
[RIYAZ I. CHAGLA J.] [SMT. VASANTI A NAIK, J.]
