^ HIGH COURT OF CHHATTISGARH AT BtLASPVR Writ Appeal No.326 of 2010 APPELLANTS: Petitioners 1. 2. Vijay Ratan Lal Rathi, aged about 52 years, Son of Shri Ratan Lat Rathi, Partner Prabhat Talkies, Raipur, Resident of Mangi Lal Plot, Amrawati Maharashtra Raj'endra Darbar, Son of Shri Prithvi Raj Darbar, aged about 44 years, Darbar Bhawan, Near Prabhat Talkies, Ganjpara, Raipur (CG) Versus RESPONDENTS: State of Chhattisgarh, Through the Secretary, Department of Town Administration and Urban Development, Mantralaya, D.K.S. Bh^wan, Raipur, (CG) / Munlcrpa^ Corpoiiilm, Ratpyr a body incor|OFg(tetft.t|€^FSectton 7 of Madhyst Pradi^l-v Ni.irwelp^t Corporation Act, 1^®B (tawfng perpetual successi^n aricl coHifn@n seal, having its office af G.E. Road, Raipur (CG) ^ Present: Shri Ashok Jain with Shri A.K. Prasad, Shri S. Dharmadhikari & Shri S.K. Dadsena, couftsel for the appellant. Shri Sumesh Bajaj, Govt. Advocate for the State. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar. JJ. JlTEtoBMENT (17-9-2(^10) \ The following judgment of the Court was>,delivered by. Dhirendra IVIttehra, J. ^l- '^ ^®.:^; 1. The appellants challenged the legality and validity of the order dated 7-8- 2001 (Annexure-P/9) and the order dated 20th March, 2003 (Annexure-P/1) by which the State Government in purported exercise of power under sub- section (5) of Section 80 of the Chhattisggrh Municipal Corporation Act, 1956 (for short 'the Act') has refused to accord sanction in respect of the lease deed executed in favour of the appellants. 2. The order was challenged on the grounds that the same was passed against a person who died during the pendency of the recommendation before the State Government and also on the ground that the impugned order was passed in a review filed by son of Ratan Lal Rathi. The above contentions have been rejected with observations that resolution for grant of l^Se in favour of Ratan Lal Rathi was passed on 3 April, 1987 when he was alive, however, the petitioners/appellants did not take steps to substitute the name of Ratan Lal Rathi before the State Government when the ^aitter was pending for approval and mere mentioning of name of Vijay Ratan Lal Rathi (the present petitioner) in the revisional order does not vitiate the earlier order passed by the State Government. With respect to dispute regarding the fact as to whether the father of the petitioners/appellants was or not assignee, it has been held that the same cannot be decided in the writ petition. The resolution of the Municipal Corporation does not confer any right on the petitioners/appellants, as the same was subject to approval of the State Government, which was ultimately rejected. 3, Learned couns^ foF the appellants yehemently argued t|ia( the Mupicipal ;.:.^:!"i" -i"..... i:: ;^; J:''^ ?;'.:•; L^; ^ '•;' ; '^:: _:1\:'_ Corporation gfahtecl fease tQ^f-IStri .Singhi Dartsar ^ a peribd of 30 y^ars. After his death, his son applied for renewal of tte lease, however, before any order could be passed, he also expired. After the death of Prithvi Singh, the •^^-^ ^ y'^:- .. \ ^....•^^ 1 •^- s ^'. </'./ Municipal Corporation cancelled the lease in favour of late Hari Singh Darbar by giving a notice to Rajendra Kumar in the year 1982 and he was directed to give vacant possession of the land. In these circumstances, a suit for permanent injunction was filed by Rajendra Kumar and an order of temporary injunction was passed in his favour. During the pendency of the suit, an amicable settlement was arrived at between Rajendra Kumar and the Municipal Corporation and the Municipal Corporation agreed to grant fresh lease to Ratan Lal Rathi, who was in possession of the lease land. The suit was withdrawn by Rajendra Kumar and ultimately, the Corporation considered grant of lease to Ratan Lal Rathi. The only ground pressed by the appellants in this writ appeal is that learned Single Judge has not correctly interpreted Section 80(5)(ii) of the Act. The approval of the State Government is required only under Section 80 (5)(ii) ofthe Aci@Ptfy when title is transferred by the Municipal Corporation whereas for grant of te^ise by the Municipal Corporation, approval of the State Government is not necessary. 4. Referring to Section 2 (10) of the Indian Stamp Act, 1899 and Section 80 of the Act, it was argued that it is not necessary to obtain sanction of the State Government. Proviso (ii) to sub-section (5)of Section 80 would not apply to a lease, as restriction is llmited to sale of absolute transfer of the property and it is not applicable to grant a lease by the Corporation. Reliance is placed on judgment of learned Single Judge in the matter of Municipal Corporation, Satna Vs. Badri Prasad and others1. Referring to the decision of the Supreme Court in the matter of Bongaigaon Refinery & Petroehemicals Ltd. and others Versus Girish 1 2001 (4) M.P.H.T. 387 ^ \ '''"^ .1. Chandra Sarma , it was argued thateven if ground taken by the appellant was not canvassed before learned Single Judge, the appellant cannot be estopped from raising the same in writ appeal. 5. On the other hand, Shri Sumesh Bajaj,learned Govt. Advocate would argue that the appellants did not challenge the action of the respondent Corporation in forwarding a lease deed in favour of the appellants as per compromise arrived atbetween the parties for approvalof the State Government. The only relief claimed by the appellants in the writ petition is against the order of Annexure-P/9 & P/1 whereby the State Government has refused to approve the l^ase of the disputed property in favour of the appellants and there was no issue before the learned Single Judge that approval of State Government is not required under the proviso (ii) to sub-section (5) of Section 80 of the Act where the Corporation grants lease and, therefore, the appellants cannot be permitted to raise this ground in writ appeal. Reliance is placed in the matter of South Bengal State Transport Corpn. Vs. Sapan Kumar Mitra and others . 6. Heard learned counsel for the parties, perused the impugned order as also the record ofthe writ petition. 7. From perusal of the record, it appears that during the pendency of the civil suit filed by Rajendra Kumar, a compromise (Annexure-P/2) was arrived at between the Municipal Corporation and Ratan Lal Rathi, the owner of Prabhat Talkies. Thereafter an application under Order 23 Rule 1 CPC was filed and the plaintiff was permitted to withdraw the suit (Annexure-P/4) and 1 as per conditions of the compromise, the Corporation decided to grant lease (2007) 7 Supreme Court Cases 206 ' (2006) 2 Supreme Court Cases 584 "^ 3o ^" of the disputed property in favour of Ratan Lal Rathi for a period of 30 years subject to approval of the State Government (Annexure-P/5). There is no challenge to the resolution dated 3rd April, 1987 of the Corporation in the writ petition. The appellants have impugned the order of the State Government dated 7-8-2001 (Annexure-P/9) by which the State Government has refused to accord approval and also the order dated 20th March, 2003 (Annexure-P/1) whereby their application for reviewing the order of Annexure-P/9 has been rejected. 8. In the matter of Girish Chandra Sarma (Supra), it was argued on behalf of Addjtional Solidtor General that since leaned counsel for the respondents/ writ petitioner had abandoned the plea of perversity before the learned Single Judge, it was not open for learned counsel for the writ petitioner to press again the same before the Division Bench of the High Court. Rejecting the above argument, it has been observed that "Since the writ appeal is in continuation of the original order passed in the writ jurisdiction by the learned Single Judge, it cannot operate as an estoppel against learned counsel for the respondent to press the same. If the finding recorded by the inquiring officer is not sound and it relates to perversity then the appellate court in writ appeal cannot estop the counsel from raisjng the same. More so, the Division Bench after considering the matter has found that the whole approach was perverse because the respondent alone has been made a scapegoat. When the decision of all the three Committees was unanimous, then to take one and put the entire blame on him is definitely perverse approach and the court cannot stand to the technicalities so as to defeat the endsof justice. Thus, the submission of the learned Additional Solicitor General has no merit." ,^^^^:^ 'i., ^€/ :'' -y-:.^l^t^; 3\ 6 9. In the matter of South Bengal State Transport Corpn. (Supra), in a writ petition, the petitioner challenged his removal from service by his employer respondent. Learned Single Judge did not decide the question of removal and remitted the matter to the disciplinary authority for fresh decision. The petitioner preferred an appeal and the Division Bench went into the merits on the question of removal of the petitioner from service and ordered reinstatement with back wages. In these circumstances, it has been observed by the Supreme Court that the Division Bench was not justified to decide the question of removal from service on merits and the order passed by the Division Bench was set aside and the order of learned Single Judge was restored. 10. In the instant case, it is evident that the plaintiffwas permitted to withdraw the suit under Order 23 Rule 1 of the CPC on the basis of compromise arrived at between the parties. In accordance with the conditions of the compromise, the Municipal Corporation passed resolution in the year 1987 and granted lease of the property in favour of the appellants subject to approval of the State Government. The appellants did not challenge the resolution of the Municipal Corporation for a period of 14 years on the ground that the approval of the State Government was not necessary as per proviso (ii) to sub-section (5) of Section 80 of the Act till the year 2001 when approval was denied vide Annexure-P/9. A review petition was filed before the State Government which was rejected in the year 2003 and thereafter writ petition was filed. In the writ petition also, no relief has been claimed against the action of the respondent Corporation in forwarding the lease to the State Government for approval. In these circumstances, the appellants cannot be :^- •3<?- 7 permitted to argue that approval of the State Government was not necessary under proviso (ii) to sub-section (5) of Section 80 of the Act. 11. Section 80 (5)(ii) reads as under:- "(5) The foregoing provisions of this section shall apply to every disposal of property belonging to the Corporation made under or for the purpose of this Act: Provided that - Xxxx xxxx xxxx (ii) no land [value of which may be prescribed] shall be sold or otherwise conveyed without the previolis sanction of the Government and every sale, or other conveyance of properi:y vesting in the CorporationsHsN be deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force." 12. In the matter of Badri Prasad and others (Supra), learned Single Judge of the Madhya Pradesh High Court, while dealing with the sanction of the State Government under proviso (ii) to sub-section (5) of Section 80, held thus:- "The legislature among other things, expressly restricted the grant of a lease stating in so many words that the property vesting in trust is Municipal Corporationcannot be leased in a manner which would adversely affect the purpose of trust. Obviously, this proviso is applicable to that property which are vested in the Corporation and its capacity is that of a statutory trustee. The proviso (ii) to sub-section 5 of Section 80 of the Act, however, deals with these cases where the Municipal Corporgtjpn $eek§ tp sell or otherwise copvey the prpperty worth more ttian ps.25,000/-, Sale js absolute transfer. The words 'otherwj^e convey' are used in the same sense implying the transfer absolutely by modes other than 35 sale. The words 'sale or conveyance' used in the afor^said proviso canbe said to be 'a term of art'. They have specific and established meaning. It is clear that the Legislature deliberately omitted the word 'lease' implying thereby that proviso (ii) to sub-section (5) of Section 80 of the Act would not apply to a lease." 13-The word 'conveyance' has been defined in Section 2 (10) of the Indian Stamp Act, 1899 which reads as under:- "2(10). "Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule [or by Schedule 1-A, as the case may be;]." 14. In the matter of The Official Assignee Madras Vs. Tehmina Dinshaw Tehrani , it has been observed that conveyance includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein by any instrument except a will. 15. Similar view has been taken by the Calcutta High Court in the matter of Jayanta Mohan Chatterjee Vs. Jagat Mohan Chatterjee5. 16. In the matter of Orai Oil Chemicals Pvt. Ltd. Vs. State6, it has been held that an instrument conveying the plants and machineries installed onthe plot alongwith surrendering of plot under lease is a conveyance within the meaning of Section 2(10) of the Indian Stamp Act. 4AIR 1972 Mad 187 5AIR1972Cal88 6AIR1997AII92 _._r_:_-_.._.__..jN ^ 17. We fTave referred the views of the different High Courts on the subject in view of reliance of learned counsel for the appellants on the decision of the Madhya Pradesh High Court in the matter of Badri Prasad and others. 18. However, since the issue was neither raised before the learned Single Judge nor there is any decision by the learned Single Judge on this issue, we are not expressing any opinion on this issue and we dismiss this appeal on the ground that the appellants could not point out any illegality or infirmity in the impugned order. - Sd/- Dhirendra Mishar Judge Sd/- R.N.Chandrakar Judge Barve