Judgement

THAKKAR, J. :- This appeal by special leave against the judgment of the High Court of Madhya Pradesh has been preferred possibly on account of some misconception and some misapprehension. The State appears to have been exercised in regard to the question whether the Municipal Corporation can sell open plots of lands which have been vested in it in trust for the "purposes of the M. P. Municipal Corporation Act". In fact, no such point has been decided by the High Court, much less decided against the view canvassed by the State Government. This will be clear from the following passage extracted from the judgment under appeal :-

"In this view of the matter, it is not necessary for us to go into the question of the extent of rights that were conferred under the various statutes relating to these properties on the petitioner, and the effect of subsequent enactments on those rights."

The High Court has in terms made it clear that the question as regards the rights conferred on the Corporation relating to these properties has not been examined. So also in para. 8 the High Court has observed that "the question about the extent of the rights of the Corporation is not necessary to be gone into". It is, therefore, abundantly clear that the High Court has not made any pronouncement as regards the rights of the Municipal Corporation in respect of open plots of lands which have been vested in the Municipal Corporation in trust for the purposes of the Act. All that the High Court has done is that it has passed an order in the following terms :-

"Consequently this petition is allowed and the orders passed by the Collector, Indore, and Commissioner, Indore, on the basis of the Government order, which has been described as instructions, declaring all open lands within the Corporation limits as Nazul lands and directing the petitioner not to deal with or dispose of such lands, and also the orders passed on that basis by the Nazul Officer dealing with those lands, are set aside. Consequently all open lands that vest in the petitioner before these orders were passed shall vest in the petitioner."

The discussion in the judgment goes to show that the said order was passed in the context of the letter addressed by Collector (Shri W. S. Tambe) being D. O. letter dated September 29, 1965, to the Commissioner of the Municipal Corporation (S. C. Dube). The letter in so far as material was in the following terms :-

"My dear Dube.

Please find herewith a copy of Local Govt. (Urban) Deptt. Memo No. 11199/7594/ XVIII-C.I. dated 10-9-1964 a copy of which was sent to you by the SubDivisional Officer, Indore, for information and necessary action vide and No. SDO/I/65 dated 11-2-1965.

2. A perusal of para. 3 will show that the unoccupied lands situated within the Municipal limits do not belong to any urban local body in any absolute right and the lands not specifically vested in any Municipal Council shall continue to be treated as intra Municipal Nazul lands and that the management and control thereof will be that of the State Government in the Survey and Settlement Department.

3. Under these circumstances the sale of land to be held by you on 6-10-65 as per publication of Indore Municipal Corporation Notification No. 119 in the issue dated 26-9-65 of daily newspaper Nai Duniya at page 6, does not appear to be proper. You are therefore requested to examine the matter in the light of the above Government orders and intimate how this sale has been undertaken. It is requested that pending the clarification in the matter, the sale may be withheld."

The Municipal Corporation took an exception to this saying that the Collector had no jurisdiction to direct that the lands would hereafter be managed and controlled by the State Government by addressing such a letter. This again is evident from the grievance made by the Municipal Corporation in its writ petition giving rise to the present appeal. The relevant passage is extracted hereinbelow :-

"There were certain departme