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High Court Of Madhya Pradesh
B. K. Chaturvedi, J.
JUGALKISHORE KABRA - Appellant
Versus
MUNICIPAL COMMITTEE - Respondents
Second Appeal 435 Of 1952
Decided On : 10/30/1957
MUNICIPALITIES - C. P. AND BERAR MUNICIPALITIES ACT, 1922 (II OF 1922) - SECTION 42 - EXCHANGE OF LANDS - SANCTION OF GOVERNMENT - NECESSITY - SECTION 47 - RESOLUTION PASSED IN GOOD FAITH AND WITH DUE CARE AND ATTENTION - SUIT FOR CANCELLATION OF DEED OF EXCHANGE - MAINTAINABILITY.
Fact of the Case:
The plaintiffs, taxpayers of the Piparia Municipality, filed a suit challenging the exchange of a municipal plot with a private individual's plot, alleging it to be unconscionable, unauthorized, and illegal. The trial court and the lower appellate court dismissed the suit, holding that the rate-payers were not entitled to file such a suit, the resolution was passed in good faith, and the bargain was neither unconscionable nor unauthorized or illegal.
Finding of the Court:
The High Court held that the suit was maintainable as the rate-payers had a right to prevent the misappropriation of a rate, which they were compelled to pay, or its application to unauthorized or illegal purposes. The Court further held that the exchange of lands was within the power of the Piparia Municipal Committee as it was done in pursuance of a resolution passed unanimously at a meeting of the Municipal Committee and in accordance with the rules made under Section 42 of the Act. The Court also found that the Government's sanction was not required as there was no evidence to indicate that the property belonged to the Notified Area Committee was ever vested in it by the State.
Issues: 1. Whether the suit filed by the rate-payers was maintainable? 2. Whether the exchange of lands was within the power of the Piparia Municipal Committee? 3. Whether the Government's sanction was required for the exchange of the property?
Ratio Decidendi: 1. The Court held that the suit was maintainable as the rate-payers had a right to prevent the misappropriation of a rate, which they were compelled to pay, or its application to unauthorized or illegal purposes. The Court relied on the principle that a rate-payer has a right to prevent the public body to which he pays the rate from acting contrary to law or contrary to its own charter. 2. The Court held that the exchange of lands was within the power of the Piparia Municipal Committee as it was done in pursuance of a resolution passed unanimously at a meeting of the Municipal Committee and in accordance with the rules made under Section 42 of the Act. The Court found that the Government's sanction was not required as there was no evidence to indicate that the property belonged to the Notified Area Committee was ever vested in it by the State. 3. The Court held that the Government's sanction was not required as there was no evidence to indicate that the property belonged to the Notified Area Committee was ever vested in it by the State.
Final Decision: The High Court dismissed the second appeal, holding that the suit could not have been decreed as the resolution for the exchange of lands was passed in good faith and with due care and attention, and the Government's sanction was not required.
( 1 ) THIS is plaintiffs' second appeal from a decree dated 27-3-1952 passed by the additional District Judge, Narsimhapur, affirming the, decree dated 16-4-1951 of the Civil Judge (Class II), Sohagpur at Narsimhapur, dismissing the plaintiffs' Civil suit No. 63-A of 1949.
( 2 ) THE three plaintiffs-appellants are taxpayers of the Municipality of Piparia. The defendants-respondents are eleven in number. Defendant-respondent 1 is the municipal Committee of Piparia, Tahsil Sohagpur. Defendant-respondent 2 is the nominated President. Defendant-respondent 11 Shri Moolchand Bamoria is the honorary Secretary of the Municipality. Formerly there was a Notified Area Committee, which was converted into a municipality by Gazette Notification on 8-1-1949. Defendants-respondents 3 to 10 were nominated members of the said Municipality. The allegations in the plaint are that by a resolution dated 13-4-1949 the Municipal Committee gave its own Plot no. 39/2, area 3 acres, of mouza Deogaon Piparia to the defendant-respondent no. 11 in exchange for his worthless Plot No. 42/2, area 3 acres in the same mouza. The said transfer of exchange was attacked by the plaintiffs-appellants as unconscionable, unauthorised and illegal, and it was prayed that the deed, executed on 14-4-1949 in accordance with the resolution dated 13-4-1949, be cancelled as invalid and possession of Malik Makbuza field No. 39/2 be restored to the Municipality.
( 3 ) THE trial Court dismissed the suit on the grounds that the rate-payers are not entitled to file such a suit, that the resolution was passed in good faith and that the bargain was neither unconscionable, nor unauthorisd nor illegal.
( 4 ) THE dismissal of the suit on these grounds was upheld by the lower appellate court. In addition to these grounds, it was added by that Court that the suit must also fail on account of want of notice to the respondents 2 to 10 under Section 48 of the C. P. and Berar Municipalities Act, 1922 II of 1922 ).
( 5 ) ALL the three findings are assailed before me by Shri R. S. Dabir, learned counsel for the appellants, and I have no doubt that the attack on the first and third findings is well founded. In Vellayan Chettiar v. Govt. of the Province of madras, AIR 1947 PC 197 (A), it was laid down by their Lordships of the Judicial committee that a notice under Section 80, Civil Procedure Code, is for the protection of the authority concerned; and, if in a particular case, he does not require that notice, he can lawfully waive his right to the notice. This has been followed in Secretary of State v. Sheoramjee, ILR (1949) Nag 875: (AIR 1952, Nag 213) (B ). The same principle would be applicable to a notice under section 48 of the C. P. and Berar Municipalities Act. There was no objection raised in the written statements by any of the defendants about a notice under Section 48, and it should be taken that defendants 2 to 10 waived their right to such a notice.
( 6 ) AS regards the rate-payers' competence to file such a suit, the general rule now is that if a rate-payer's pocket is affected by a decision allowing the misappropriation of a rate, which he is compelled to pay or its application to purposes which are unauthorized or illegal, he is a person who has grounds to say that he is aggrieved by the decision and can come to a Civil Court against the decision. All the relevant rulings on the point have been referred to and discussed in municipal Corporation, Bombay v. Govind Laxman, AIR 1949 Bom 229 (C), and the rule deduced from several cases has been stated thus : Every rate-payer has a right to prevent the public body to which he pays the rate from acting contrary to law or contrary to its own charter. The rate-payer can come to Court by way of a suit, and can also invoke the Jurisdiction of the Court under Section 45, Specific relief Act of 1877.
( 7 ) THE cases reported in Cawashah Bomanji Parakh v. Prafulla Nath Rudra, ILR (1941) Nag 266; (AIR 1941 Nag 364) (D), or
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