1 SA34/94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 34 OF 1994 Bankatlal Dhondiram Ostwal, Age 45 years, Occupation Business and Agriculture, Resident of Siras Marg, Presently at Georai, District Been Appellant V E R S U S 1 Pannalal Madanlal Gangwal, Aged 40 years, Occupation Business, Resident of Georai, District Beed Respondents 2 President, Nagart Parishad, Georai, through its Chief Officer 3 Kantilal Dhondiram Ostwal, Aged 42 years, Occupation Agriculture, Resident of Georao, District Beed. Shri S.C. Bora, Advocate for the appellant Shri V.I. Thole, Advocate for respondent No.1 Shri A.B. Kharosekar, Advocate for respondent No.2 Respondent No. 3 though served, absent CORAM : A.V. NIRGUDE, J. DATED : 20th September, 2011 ORAL JUDGMENT : 1. This second appeal challenges the Judgment and order dated 20th August, 1993, delivered by the Additional District Judge, Beed, in Regular Civil Appeal No. 365 of 1983. 2. When the appeal was admitted, ground Nos. 3 to 5 were mentioned as giving rise to substantial questions of law. Ground Nos. 3 to 5 read as under : “(3) That, the substantial question of law in the present case is as to whether the Municipal Council being statutory body can cancel by Resolutiion, the allotment of plot in favour of the highest bidder in auction held by the Council after following the procedure in that behalf, without notice to the allottee, and if this is so, whether such Resolution is legal and valid. 2 SA34/94 (4) That, admittedly, there is no notice to the Appellant-plaintiff as regards to the action of cancellation of the allotment of the plot and as such, the said Resolution dated 21/01/1972 is null and void and not binding on the Appellant-plaintiff. This aspect of the matter was considered by the trial court but ignored by the lower court resulting in miscarriage of justice. (5) That, it is also established that the auction in question was held on 26/04/1968 wherein, the Appellant was accepted to be highest bidder in respect of plot No. 2 and that on accepting 1/4th amount of total consideration, the Appellant got the possession and that subsequently, in pursuance of the notice dated 08/05/1968 and 03/08/1968 by the Municipal Council, the Appellant had deposited the balance consideration. If these facts are proved beyond doubt on the basis of the record, whether the action of passing the Resolution of cancellation of allotment of plot after a period of about (4) years, that too without notice to the Appellant, can be said to be legal and valid. This is a substantial question of law.” 3. Having gone through the pleading and evidence and after hearing the submissions made by the learned counsel for the parties, I realized that there is hardly any substantial question of law arising in this appeal. The facts leading to this litigation, in short, can be narrated as under : 4. The appellant / plaintiff agreed to purchase a plot of land from Municipal Council, Georai, District Beed, respondent No. 2 sometime in 1970 or so. Respondent No. 1 too agreed to purchase one plot of land from the Municipal Council. These two plots were situated adjacent to each other. The plot agreed to be sold to respondent No. 1 was on the northern side and the plot proposed to be sold to the appellant was on the southern side. It is common ground that after the proposals were made, the Municipal Council did not take further steps for completing the transfer formalities. However, all the persons who were allotted the plots secured 3 SA34/94 possession without obtaining a formal possession receipt. They even made construction on the plots after 1970. It is further common ground that after the announcement of allotment to the appellant and respondent No. 1 and others, the Municipal Council informed the appellant that they would not be able to transfer the plot agreed to be sold to him, because they had proposed to construct a road in its place. They informed him that either he would be offered different plot or he could get the amount, which he had deposited, refunded. To this, the appellant apparently retorted that he would not accept any other plot but the one which was agreed to be allotted to him. He also asserted that he had taken possession of the same. The Municipal Council thereafter did not take any step for refunding the amount to the appellant, neither they initiated any proceeding against him for evicting etc. They admittedly did not offer and allot a different plot to the appellant. The stalemate continued. 5. In the meantime, respondent No. 1 requested the Municipal Council to permit him to raise construction on the plot he was allotted. He proposed to construct one room on the plot which would have entrance on the southern side. The entrance on the southern side would open in the plot that was agreed to be allotted to the appellant. The permission was granted on assumption that on the southern of respondent No.1’s plot, there existed a road. Respondent No. 1 thereafter made construction, and instead of opening one door to the room, he opened as many as three doors opening on the southern side. He even constructed in front of a room a large Ota. It is common ground that this Ota was subsequently removed because admittedly it was an encroachment on the road which was located on the southern side of respondent No.1’s room. After the construction was made, the appellant / plaintiff felt aggrieved and he filed suit seeking mandatory 4 SA34/94 injunction against respondent No. 1 that he should remove the Ota as well as close the doors of his room opening on the southern side. Respondent No. 1 as well as the Municipal Council took a stand that in view of the cancellation of allotment of the plot agreed to be given to the appellant, he has no right to the plot. 6. The crux of the case therefore was, whether due to cancellation of the allotment of plot, the appellant / plaintiff lost right to the plot though he could prove his possession and is unable to prevent respondent No. 1 from using his plot as passage or access? I think this can be said to be a question of law substantial or otherwise in this appeal. 7. While the matter was before the trial Court, the appellant / plaintiff could prove that he also obtained possession of the plot which was allotted to him and the learned Judge of the trial Court held that he could prove his possession. Since he could prove possession of the plot, the learned Judge of the trial Court decreed the suit. The learned Judge of the first appeal Court however dismissed the suit. As said above, the learned Judge of the first appeal Court understood the crux of the case and held that though the appellant could prove that he succeeded in getting possession of the plot, he has no right to it due to the cancellation of allotment of the plot. As mentioned above, the fact that the Municipal Council passed a resolution canceling the allotment of the plot agreed to be given to the appellant / plaintiff is an admitted fact. The question is, what is the effect of such resolution even if the Municipal Council did not evict the appellant / plaintiff? The Municipal Council is the development authority and would decide as to who would get permission for construction and in view of the fact that the Municipal Council is believing that the plot which was agreed to be given to the appellant was later on converted into a road, 5 SA34/94 the appellant / plaintiff would no longer be able to obtain permission from the Municipal Council for development of such plot even though he could show that he was in possession. In view of this, the appellant / plaintiff has lost legal right to the plot though he could show that he had secured possession of the plot initially like all other plot allottees obtained possession of their respective plots. The situation worsened because he admitted in the cross-examination that after filing of the suit he left Georai and started residing at Beed, and about 4-5 years thereafter, his evidence was recorded, in which he admitted that for 4-5 years he has not retained possession of the plot. This clearly establishes that whatever concern the appellant had earlier with the plot agreed to be allotted to him was lost due to passage of time and due to his leaving Georai town as his place of residence. The appellant should therefore fail in this appeal. The second appeal stands dismissed. 8. In view of dismissal of the second appeal, Civil Application No. 409 of 1994 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/sa/34/94/20/9/11ok