AP HIGH COURT OF CHHATTISGARH. BILASPUR 'o APPELLANT: RESPONDENTS: Second ADpealNo.126 of 2007 Sudhir Kumar Versus Municipal Corporation, Durg and another Post for Dronouncement of iudament on 81" September, 2009 Sd/- ,T.P. Sharma Judge \. ' %. A^^~. HIGH COURT OF CHHATTISGARH. BILASPUR Second Appeal No.126 of 2007 5 ^) APPELLANT/: (Plaintiff) RESPONDENTS/: (Defendants) 1. 2. Sudhir Kumar, S/o Champalal Jain, aged about 42 years, R/o Shop No.4, Moti Complex, Durg, Tehsil & Djstt. Durg(C.G.) Versus Municipal Corporation, Durg (C.G.) State of Chhattisgarh, Through Collector, Durg, Distt. Durg (C.G.) {Second appeal under Section 100 of the Code of Civil Procedure, 1908} Present: Mrs. Fouzia Mirza, counsel for the appellant. Mr. Sourabh Sharma, counsel for respondent No.l. Mr. Rajendra Tripathi, Panel Lawyer for the State/respondent N0.2. Sinale Bench: Honrble Mr. T.P. Sharma, J JUDGMENT (Delivered on 8th September, 2009) 1. This second appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment & decree dated 9-1-2007 passed by the 6th Additional DistrictJudge, Durg in Civil Appeal No.l- A/2006 affirming thejudgment &decree dated 26-3-2003 passed by the 3rd Civjl Judge Class-I, Durg in Civil Suit No.5-A/99, whereby learned Civil Judge Class-I has dismissed the civil suit filedon behalf of the appellant herejn for declaration of injunction of the suit property. 2. Judgment & decree are challenged on the ground that both the Courts below havenot considered the material issue of the case that respondent No.l herein has resolved to allot the land in favour ofthe appellant herein which respondent No.l has specifically pleaded in para 4 of its written statement and on the ground of such resolution theappellant is entitled forinjunction & declaration. 3. Brief facts giving rise to filing of this appeal, as claimed by the appellant/plaintiff/are that respondent No.l has sent the proposal of allotment of the disputed land to the appellant videletterdated 16- 5-96 and in cornpliance of such letter, the appellant has deposited ^: 2 ^ j:he required money Rs.33,166/- vide receipt dated 12-6-96. Respondent No.l also resolved to allot the land to the appellant, but subsequently the appellant was notallotted the land. Then, suit for injunction not to allot the land to any person and declaration that it beallotted to theappellant/plaintiff has been filed by the appeltant herein. RespondentNo.l/defendant No.l has pleaded that the Commissioner, Municipal Corporation was not competent to propose or issue any letter for allotment of land without the resolution of the Municipal Corporation. The Municipal Corporation has firstly resolved toallot the land to theappellant, butsubsequently it was rejected. WJthout any approval from the Government, the Municipal Corporation was not competent to resolve or allot the land to the appellant. After affording opportunity of hearing to the parties, learned Civil Judge Class-I has dismissed the claim of the plaintiff and directed for refund of money to the plaintiff. Judgment & decree of the trial Court was challenged before the lower appellate Court and the lower appellate Court has affirmed the judgment & decree of the trial Court. 4. I have heard learned counsel for the parties, perused the impugned judgment & decree and record of the Courts below. 5. Learned counsel for the appellant argued that the Commissioner, Municipal Corporation was competent to allot the land with the sanctionof the Municipal Corporation in accordance with Sectjon 80 (2) (c) ofthe Chhattisgarh Municipal Corporation Act, 1956 (for short 'the Act') and the Commissioner has atlotted the land in terms of Section 80 (2) (c) ofthe Act. 6. On the other hand, learned counsel for respondent No.l opposed the second appeal and argued that under Section 80 (2) (c) of theAct the Commissjoneris competent to allot the land with the sanctionof the Municipal CoFporation. Learned counsel further argued that in accordance with Rule 3 of the Chhattisgarh Municipal Corporation (Transfer of Immovable Property) Rules, 1994 (for short 'the Rules'), no immovable prpperty which yjelds or is capable of yielding an incomeshall be ti-ansferred by sale, or otherwise conveyed except to the highest bidder at a public auction or by inviting offerin a sealed cover. Learned counsel also argued that with the previous sanctjon of the State Government, the Corporation may transfer or otherwise tF" ^ £ convey the property. In accordance with Rule 7 of the Rules, prevjous sanction Qfthe Government is the condition precedent, but in this case, neither previous sanction has been obtajned nor the land was sold or allotted to the bidder at a public auction or by inviting offer in a sealed cover. Any transfer made in contravention of the aforesaid Rules is not permissible under the law. Learned counsel further submits that in absence of any express concluded contract, the appellant is not entitled for any remedy. 7. Section 80 (2) (c) ofthe Actreadsas follows: - "Subject to the provisions of sub-section (1) with the sanction of the Corporation the Commjssioner may lease, sell or otherwise convey any immovable property belonging to the Corporation." 8. The Rules provide the procedure for transfer of immovable property. Rules 3 & 7 of the Rules read as follows: - "3. No immovableproperty which yields or is capable of yieldingan income shall be transferred by sale, or otherwise conveyed except to the highest brdder at a public auctjon or by inviting offer in a sealed coyer: Provided that if the Corporation is of the opinion that it is not desirable to hold a public auction or to invite offers in sealed covers the Corporation may, with the previous sanction of the State Government, effect such transfer without public auction or invjting offersin sealed covers: Provided further that the Corporation may with the prevjous sanction of the State Government and for the reasons to be recorded in writing, transfer any immovable property to a bidder other than the highest bidder: Providecl also that for any such transfer by lease a reasonable premium shall be payableat the time of granting the lease and annual rent shall also be payable in addition during the total period of the lease. 7. For the purpose of proviso (ii) of sub-section (5) of Section 80 nthe value of land exceeding rupees one lakh" is prescribed in case the resolution is passed by the corporation, in this respect the Commissioner shall forwarded the proposal to the State Government with the following informations: - (1) Nature Of the property, i.e. Land, Shop, Buildingetc. •\ (2) Area ofsuch property along with its site plan. ^ -.-•-"r^ .^"'" .€^\ ?: ii^ss:, 1 (3) In case of land is acquired/purchased by the corporation, the purpose for wh.ich it was acquired/purchased be shown. (4) The purpose for which such land/property is earmarked in the city Master-plan. (5) For what purpose the property is being used at present. (6) The purpose for which such property shall be used by the person whose bid/offer has been recommended for acceptance. (7) In case of building/shop, the cost of construction and the date of completion of its construction. (8) The date of publication of notice in the local news papers, and the date of auction sale or the last date fixed forthe receipt of offers, as the case may be. (9) Upset price/market value determjned for Auction/Sale/Sealed Offers. (lO)Condition of Auction Sale Offers. (11)The total number of person participated in the auction sale/the total number of offerers who tendered their offers. (12)The namesof the first two highest bidders/ offerers and the amountof auction sale/offer price as quoted by them." 9. Bofh the parties have not pleaded and proved that any public auction fopk place or offer was invited in a sealed cover. Parties have not pleaded or proved that the StateGovemment hasever approvedor sanctioned for any allotment. The Corporation was not competent to allot any immovable property to the appellant in contravention of Rules 3 & 7 of the Rules. Para 4 of the written statement of respondent No.l reveals that the Municipal Corporation has resolved to allotthe land to the appellant, but para 3 further revealsthat after reconsideration they have cancelled the resolution and it was intimated to the appellant. Ifthe pleadings & evidence ofthe partjes are considered, it is asimple proposal & counter proposal in contraventjon of the Rules, but no concluded contract has been executed. IQ.Munjcipal Corporatipn, Durgis the State within the meaning of Article 12 &f the Constitution of India which reads as follows: - "12.Definition.—Inthis part, unless the context ^ ofherwise .requires, "the State" includes the (^ Soma Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India." ll.In accordance withArticle 299 of the Constitution oflndia, all contracts by the State or its instrumentality shall be express cohtract and any contractin contravention of Article 299 of the ConstitutiQn of India or any implied contract is not binding upon the Government or its instru menta lity. l2.In the present appeal, I do not find any concluded express contract as required under Article 299 of the Constitution of India. The alleged proposal & counter proposal are in contravention of Rules 3 & 7 ofthe Rules. The Court below has rightly dismissed theclaim of the appellant and directed to return the money to the appellant. IS.Consequently, I do not find any substantial question of law for the decision of this appeal. The appeal is, therefore, liable to be dismjssed and it is hereby dismissed. No order as to costs. Sd/- T.P. Sharma Judge