^ -.,^^,J ^ INI'MEMl^MCOyRT'OFCMMAT^IStlN^ A1RBIL.ASPUR(C.G.) WRlTPET|TIDN(c)^6i-/.^.2007 (SlngieBench/CivitMatter) PETITIONER: t-<.-' 'SMT.VANDANASONI Aged about40 years .VV/oShriS.K.Soni,< R/o IVIK3 (C) 169, Vaishali Nagar BhilEii.Tah. &Distt.-Durg(C.G.) VERSUS STATEOFCHHATTISGARH Tlirough : Principal SecretaryUrbQn ' Adiriinistratioh Development .' ' ' Y. Gpvt, ofChhattisgarh Mantralaya ^ .. D.K.S. Bhawan, Raipur(C.G.).' ' ?. MUNICIPAL CORPORATlONtHIL.AI; Through: CQmmissiQrierMunicipal'eoi'RoratiQn Bhilai/Tah.&Distt.-Durg.. ,.•f^-!,';. ^..^ PrHTIONUNDERARTICL62260FTHECONg^1-UTI^NQFINE31A ^Wi^ ^^•" •: :."^sy ^\(\.-' -;A" \'lr <^?-">' ^ gESPONDgNt: i •- &c^ .^M^2- .^, v.^ "sC^ _r"%, s t .^y i l ^axass^,^ ^ HIGH CQURT QF CHHAmSGARH AT BILASPUR PETITIONER RESPONDENT Writ Petition CO No. 5789 of2007 Smt. Neru Som. VERSUS State ofChhattisgarh & Another. t-1 ./, PETITIONER RESPONDENT AND Writ Petition fC) No. 5844 of2007 Smt. Vandna Soni. VERSUS State ofChhattisgarh & Another. )«. Post for pronouncement oforder on ..f. day ofOctober, 2010. Sd/- SatishK. Agnihotri Judge l...'-.rfgsfe, % .-^'''' mGHCQURTOF_CHHATnSGARH AT BILASPUR PETITIONER RESPONDENT PETITtONER KESPONDENT Writ Petition (Q No. 5789 of2QQ7 Smt. Nem Soni. VERSUS State ofChhattisgarh & Another. AND Writ Petition (C) No. 5844 of2007 Smt. Vandna Soni. VERSUS State ofChhattisgarh & Another. PETITION UNDERARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri V.G.Tamaskar, Advocate for the petitioner. Shri N.N.Roy, Panel Lawyer for the State/respondent No. 1. Shri H.B.Agrawal, Senior Advooate wifh Ms. Pragya Singh, Advocate for fhe respondent No. 2. ORDER (Delivered on . .^ day of October, 2010) Heard. 1. Since both the writ petitions i.e. Writ Petition (C) No. 5789 of 2007 and Writ Petition (C) No. 5844 of 2007 involve common facts and question of law, thus, both are being disposed of by this common order. 2. Challenge in these petitions i.e. Writ Petition (C) No. 5789 of 2007 (for short 'the first petition') and Writ Petition (C) No. 5844 of 2007 (for short 'the second petition') is to the order dated 08.06.2007 (Annexure P/4) passed by the Estate Officer, Municipal Corporation, Bhilai, District Durg, whereby allotment ofshop bearing No. F/16 in fhe first petition and No. F/15 in the second petition, Shitla Commercial Complex, Bhilai, to the petitioners on 27.03.2006, were cancelled, and the petitioners were directed to make an application for refimd of the security deposit aad other amount. 3. The indisputable facts, in nutshell, as projected by the petitioners, in both the writ petitions are that pursuant to the notice for auction sale, published in "Dainik Bhaskar", Raipur Edition, on 08.03.2006, for sale ofshops in Shitla Coinmercial Complex, Bhilai, the petitioners participated in the said auction sale and the petitioners, being the highest bidders, were allotted shop No. F/16 and F/15, respectively. A security deposit to the tune ofRs. 41,825/- (Annexure P/2 in both writ petitions) was deposited and 1/3 amount of the final bid to the tune of Rs. 56.500/- and Rs. 57,000/- respectively were deposited. After completion ofthe auction and deposit of installments, all ofa sudden, the petitioners received the impugned order dated 8.6.2007 (Annexure P/4) before execution ofthe agreement, to the effect that fhat the shops allotted earlier in auction to them had been cancelled. Thereafter, respondent-Corporation fixed fhe date for re-auction of the shop on 23.08.2007. The petitioners filed a writ petition being W.P.(C) N6. 4982/2007 and 4983/2007 respectively before this Court, which were dismissed by a common order dated 27.08.2007 (Annexure 6. P/6), on the ground ofnon-joinder of State of Chhattisgarh, as a necessary party. The petitioners have preferred the instant petition unpleading State ofChhattisgarh as a necessary party on the ground that no notice was given to the petitioners before canceling the auction sale. However, it was stated that re-auction fixed on 23.08.2007 (Aimexure P/5) for fhe shops in question could not take place on account of the mterim order graated by this Court on 05.10.2007 (in both the writ petitions). Shri Tamaskar, leamed counsel appeariag for the petitioners would submit that the contract of sale was complete when the final bid was accepted by the respondent No. 2. The same could not have been cancelled without affording an opportunity of hearing to the petitioners. In the auction notice, there were no such terms or condifions which requires approval of the State Govermnent, after acceptance ofthe final bid. Even otherwise, the respondent-Corporation was competent to lease, sale or otherwise convey the immovable property belonging to the Corporation to any other person without subsequent approval of the State Govemment. In the written submission, though the point was not pleaded , however, during the course of argument, leamed counsel for the petitioner developed a new point that the State Govemment has no competence to grant approval as the land in question belong to the Bhilaf Steel Plant (for short 'the BSP') and the ; ^^^?7 :^gKS%,. .^.' ^ ^1 ^jj same was transferred to respondent-Corporation, on lease. Thus, the State could not put aay restriction prescribed in the Chhattisgarh Municipal Corporation Act, 1956 (for short 'the Act, 1956'). Clause (i) of the proviso to sub-section (5) of Section 80 of the Act, 1956 clearly prescribes is that the property vesting m the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudicially affect the purpose ofthe tmst subject to which such property is held. The requirement ofsanction ofthe Govemment, more so, previous sanction is only in case of laad which is under the ownership ofthe Corporation. 7. On the other hand, Shri Agrawal, leamed Senior counsel appearing with Ms. Pragya Singh, counsel for the respondent- Corporation would submit that once the petition praying for the same relief has been dismissed on any ground, may be non- joinder of the party, the same issue cannot be re-agitated in a fresh petition. These petitions are barred by principle of tRes- Jtidicata' also. The State Govemment is the final authority to grant saaction and in the case, since sanction was not granted by the State Govemment, fhe sale in favour of the petitioners cannot be held as complete. Under the provisions of section 80(5)(ii) ofthe Act, 1956, it is provided that no land shall be sold or otherwise conveyed without the previous sanction ofthe Govemment aad every sale , or other conveyance of property vesting in the Corpomtion shall be deemed to be subject to the 'A' •I.- conditions and limitations unposed by this Act or by auy other enactment for the time being in force. Secondly, right ofthe petitioners arose &om a contractual agreement, thus, writ petition is not maintamable to enforce such right which had not accrued till date &om the contractual agreement. Both the respondents deny the statement of fhe petitioners that the Corporation was holding the land on lease granted to them by the BSP. 8. Shri Agrawal places reliance heavily on a decision ofthe High Court of Madhya Pradesh in Municipal Corporation, Satna v. Badri Prasad & Others and on a decision of a Division Bench of this Coiirt in Vyay Ratan Lal Rathi & Another v. State of Chhattisgarh & Others^. 9. Leamed counsel appearing for the State/respondent No. Iwould submit that vide clause 13 of the Terms and Conditions of Allotment of Shops by Auction (Annexiu-e P/7), all the participants including fhe petitioners were made aware that after completion ofthe auction, the auction would be subject to sanction/approyal of the State Govemment. Thus, the right in favour of the successful bidders woiild come into existence only after the State accords sanction. 10. Reliance ofthe Shri Agrawal on Surguja Transport Service v. State Transport Appellate Tribunal, M.P. Gwalior & Others ' 2001 (4)MPH 387 2 W.A. No. 326/2010, decided on 17.09.2010. 3 (1987) 1 SCC 5 ^'a "'"sm i? ^ 11. which was referred with approval iii Upadhyay & Co. v. State ofU.P. & Others , is misplaced in the facts ofthe present cases as the Supreme Court, in a case, where the petition was withdrawn without pennission ofthe Court, and the petitioners re-instituted a fresh petition, held that second petition is not mamtainable on the basis of public policy as the same would encourage Bench hunting. But there is no bar on other remedies like a civil suit or a petition under Article 32 ofthe Constitution of India. Filing of a second petition can also not be held as barred by principle of res-judicata as the same is applicable, when case/suit is adjudicated on merit. In the cases on hand, earlier writ petitions were dismissed for want ofnon-joinder of party, though certain observations were made, but the same were only to find out asto whether or not, the State Govemment was a necessary party. Thus, the objection of the respondent- Corporation on maintainability of the instant petitions, are rejected. There is no dispute that in the auction notice dated 08/09.03.2006 (Annexure P/l), there was no prescription with regard to subsequent sanction/ approval of the State ^ Govemment. Clause 4 of the general terms and conditions of the auction notice provides that the Commissioner of the Corporatoin is the final authority to accept the bid ofthe parties and it does not prescribe for approval of the State Govemment (1999)1SCC81 for allotment. Clause 4 of the general tenns and conditions of the auction notice dated 08.02.2006, reads as under: "<3^gcn i1i?fl<;ini ^t ^iftr ^t +<?l<fid w SR^^T w^ w aiRi.bi-i sngqir. -qiR ^Wf fifcfV^ qTT shTT I" 12. On going through the Terms and Conditions of Allotment of the Shops by Auction (Annexure P/7), it is clearthat clause 13 provides for approval offhe State Govemment for allotment of shops. It is specifieally mentioned in clause 13 that the approval ofthe State Govemment will be sought and only after approval the highest bidder would acquire the right ofpatta on the land. The bidder will not have any right over fhe shop/building if fhe allotment is not approved by the Govemment and the bidder shall be entitled to refund of the amount with interest. No claim thereof shall be entertamed. Clause 13 ofthe Terms and Conditions ofAllotment ofShops by Auction (Annexure P/7) reads as under: "f^PPI SNT ?tcft WIFET ^ ^ ^K pt'i)*ll^,tll<( '•ssuv VRR ^ *<)1<^Ri w ^t ^fTTift 1 •t<i1<^Rl w 'ef^ c& ^R ^re 'qpn uii^'ii ^t q1cn<<i'( ^ ^sw wifer ^ TS^ w 3i[6i<bi~( Piiii'^'yi'i iTr<r ?hni ^ift '?i^q- rnwr ^ •t41<i^Ri OTI<T ~-v€s ^tSs tra cRp <f1<?i1<;i't ^ V^^RI v^f y>H/'VR VI Vt^ 31 [£|*1~; VW ^f shrr ipr RFIT siiuT iiiR|i{J?T ^ v ^rRr ml<r ^T^ qn a|Ei<t>N ?MT crair ^t^ W PTTT SRT •VFV T^T ?hlT 1 " 13. Sub-section 5 of Section 80 of the Act, 1956 is the relevant provision in the case on hand. Clause (i) of the proviso to Section 80(5) does not admit of any ambiguity. This clearly provides that any property vesting in the Corporation shall be 14. 15. leased, sold or otherwise conveyed m a manner that is likely to prejudicially affect the purpose of the tmst subject to which such property is held. Thus, it is clear that if a property in tmst is vested m the Corporation, there is no ofher restriction except fhe conveyance offhe property by lease or sale other otherwise should not be prejudicially affecting the purpose of the trust. Clause (ii) of the proviso to section 80(5) prescribes that no land of the Corporation shall be sold or otherwise conveyed without the preyious sanction of the Govemment and further, every sale or other conveyance of property vesting in the Coiporation shall be deemed to be subject to the conditions and limitations imposed by this Act or any ofher enactment for the time being m force. Reliance of Stei Agrawal on a decision of a Division Bench of this Court in Vijay Ratan Lal Rathi (supra), is not relevant to the facts ofthe case as fhere was no question of cancellation of allotment of shops in auction purchase. Secfion 80 of the Act, 1956 is applicable not only to the property vested in the Corporation but also to the property which is under the management af the Corporation. Assuming without holding that fhe land was held by the respondent- Corporation on lease, but the same was under the management . offhe Corporation. Thus, the provisions ofsection 80 would be applicable to the facts offhe present cases. ^ I'- r-^i ^ 1 V --<!<!» 16. The main plank of the argument of leamed counsel for the petitioner is that the land was held by the respondent- Corporation on lease granted by the BSP, fails on a simple ground th^t neither a transfer deed indicating transfer ofland or any other dociunent has been produced, particularly in the teeth ofthe strong denial ofthe fact by the respondents. The BSP is not present to assist the Court in establishing the avennents with regard to nature of the land, as stated by the petitioners. Thus, any issue on the above stated basis cannot be adjudicated upon for want of sufficient materials. This involves disputed question of facts and the same cannot be decided in a writ jurisdiction on the basis of averments made in the pleadings. The competent court is civil court, having thejurisdiction. 17. In case of Badri Prasad (supra), ibste was no consideration firstly with regard to general teniis aad conditions of contract and secondly, whefher the terms and conditions of the auction was a part of the auction notice. Thus, the same is not applicable to the facts ofthe instant cases. 18. On the basis ofaforestated reasons and analysis, I am constraint to hold that clause 13 of the Terms and Conditions of Allotment of Shpps by Auction (Annexure P/7), was a part of the contract and thus, the auction sale was not complete as sanction/approval was not accorded to the petitioners. This is not the case ofthe petitioners that the terms and conditions are inconsistent with the statutory provisions. Thus, no right has .^ ""^l'^ ^ i fc '"S .;" '%£sv^-£!y,/ ^^ -"- ..^ 10 Amit 'v accmed in favour of the petitioners before fhe sanction/ approval was accorded to the auction sale. However, it is not clear from the pleadings of the cases asto whether all the installments have been paid or oiily one insfallment has been paid. 19. As a result, both the writ petitions are dismissed. Ttie petitioners are entitled to refund ofthe security amount as well as other amount which has been deposited by them, with mterest. 20. There shall be no order asto costs. --—-— Sd/- Satish K. Agnihotri Judge