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2004(4) Supreme 391
SUPREME COURT OF INDIA
(From Gujarat High Court)
Ashok Bhan and S.B. Sinha, JJ.
Bahadursinh Lakhubhai Gohil -Appellant
versus
Jagdishbhai M. Kamalia & Ors. -Respondents
Civil Appeal No. 32 of 1999
Decided on 17-12-2003
Counsel for the Parties :
For the Appellant : K.N. Bhat, Sr. Advocate, P.H. Parekh and Rohit Alex, Advocates.
For the Respondents : C.A. Sundaram, R.P. Bhatt, Sr. Advocates, Jatin Jhaveri, Abhijat P. Medh, S. Prasad, Ms. Meenakshi Arora, Anshul Singal, George Paulose, Vijay Patel, Himanshu Uppadhaya, P.N. Puri, Ms. H. Wahi, Ms. Archna Palkar, M/s. I.M. Nanavati Associates, Advocates (NP) Advocates.
Held : It is not in dispute that the property in question had vested with the respondent-Corporation. The respondent - Corporation, therefore, could grant a lease in respect of the premise in question in terms of Section 79 of the Bombay Provincial Municipal Corporation Act, 1949 which stands extended to Gujarat. (Para 12)
It stands admitted that Shri Vajubha did not deposit the entire sum of Rs. 360/-. The letter dated 19.2.1952 which was issued acceding to the request of the auction purchaser to the effect that he be granted three months time for making payment of balance sum of Rs. 90/- was a conditional order insofar as while granting such extension, it was stipulated therein that on failure to do the same, the allotment would be cancelled. An order in writing could have been issued cancelling the allotment and forfeiting the amount of Rs. 270/- but once it is held that the said letter dated 19.2.1952 was a conditional one, a fortiorari upon Shri Vajubha s failure to deposit the amount, the allotment stood cancelled. Furthermore, it is not in dispute that for the purpose of demise of a premise for a period exceeding one year, a registered document was required to be executed. In absence of execution of such a registered deed, no title could have passed in favour of the auction purchaser. The statutory requirements for grant of lease must be fulfilled so as to confer a legal right on the property upon the auction purchaser. As the statutory conditions, as contained in Section 79 of the Act as also Section 17 of the Indian Registration Act, were not complied with, there cannot be any doubt whatsoever that Shri Vajubha did not derive any title by reason of said auction or otherwise. (Paras 13 and 14)
The impugned order dated 30th July, 1997 is passed on a lawyer s opinion who in turn has proceeded on the basis that possession had been delivered to Shri Vajubha. The questions of law which had been raised in the public interest litigation were not considered therein. (Para 21)
We, therefore, are of the opinion that as substantial justice has been done, it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India. (Para 30)
JUDGMENT
S.B. Sinha, J.-A public interest litigation was filed by the first respondent herein questioning an action of the respondent - Corporation and its Chairman of the Standing Committee insofar as incorporation of the name of the respondent No. 7 in the municipal register was allowed.
FACT :
2. An auction was held by the respondent No. 3 herein for granting a vacant land and bearing plot No. 2557 admeasuring 90 x 150 feet (1500 square years) for a period of 99 years on or about 7.11.1951. One Shri Vajubha (since deceased), the predecessor in interest of the appellant herein became the highest bidder by offering a sum of Rs. 360/- being the one time premium. The said Shri Vajubha deposited a sum of Rs. 270/- on or about 14.2.1952 and prayed for grant of three months further time for paying the balance sum of Rs. 90/. The respondent No. 3 agreed to the aforementioned offer by a letter dated 19.2.1952 directing that the said amount must be paid within three months in default, the allotment will be cancelled. Admittedly the said amount was not deposited. No rent was also paid by him to the respondent Corporation.
3. One Pandya Minaben Kuberbhai filed a suit in relation to Plot No. 2557 being suit No. 30 of 1990 in the Court of Civil Judge (S.D.), Bhavnagar wherein a written statement was filed by the respondent - Corporation asserting right title and interest as also possession therein.
4. Late Shri Vajubha or the respondent No. 7 herein did not take any step in relation to the land in question either for obtaining possession, payment of balance amount of the auction amount or assessment of municipal taxes. Only upon expiry of about 44 years, the respondent No. 7 wrote two letters dated 25.7.1996 and 31.7.1996 to the Commissioner of the respondent No. 3 to enter his name in the lease register expressing his readiness and willingness to deposit the further sum of Rs. 90/-. The then Home Minister of the State of Gujarat by a letter dated 7.9.1996 instructed the respondent No. 3 herein to incorporate the name of the respondent No. 7 in the lease register. However, the Estate Officer of the respondent No. 3 conveyed rejection of the said applications by a letter dated 26.9.1996. Despite the said rejection, the respondent No. 7 herein by a letter dated 3.10.1996 requested the Chairman, Standing Committee for incorporating his name in the lease register which was rejected by the then Chairman, Mr. Laxman Radheshwar in the following terms:
"It appears from complete examination of papers that claimant Vajubha Hathisinh has not paid amount for the plot he had taken in auction as per the Rules.
It is said that plot No. 2557/A was purchased in 1951 in auction. The claimant was given notice and further time to pay the balance amount but he had not paid the same. Therefore, allotment of plot stands forfeited as per Rules, which he claims after 46 years.
The price of the plot has arisen many times in 46 years and if now the plot is given to the claimant, the Corporation is stand to lose crores of rupees and the Corporation is planning to construct Commercial Complex on this plot. In the circumstances nothing remains to be done and the matter is hereby returned."
5. The said letter was contained in Annexure I to the writ petition and a copy thereof has been produced before us by Mr. Sundaram, the learned senior counsel appearing on behalf of the respondent - Corporation. Prior thereto, it appears that a legal opinion was obtained on the subject matter. It further appears that on 8.7.1997 an election was held for the post of Chairman of the Standing Committee and the respondent No. 5 Mr. Mahpatsingh Gohil was elected. Soon thereafter i.e. on 23.7.1997, an agenda was purported to have been circulated for meeting of the members of the Standing Committee to be held on 25th July, 1997 wherein, however, the proposal for consideration of the applications filed by the respondent No.7 herein did not find place. Despite the same, allegedly a resolution was
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