1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.1295 OF 2010 Municipal Council, Parli (V), through its Chief Officer, Taluka Parali (V), District : Beed. Appellant versus 1. Rangnath Rambhau Bansode (Mali), age 53 years, occup. Agril. r/of Parali, District Beed. 2. The State of Maharashtra, through the Collector, Beed. Respondents --------------------------------------------------------- Shri S.P.Shah, Advocate for the appellant. Shri V.D.Salunke, Advocate for Respondent No.1. Shri B.V.Wagh, Assistant Govt. Pleader for Respondent No.2. --------------------------------------------------------- Coram : P.R. Borkar, J. Date : July 26, 2010. ORAL JUDGMENT:- 01. This first appeal is preferred by Municipal Council, Parli-judgment debtor, being aggrieved by the judgment and order of attachment passed by the learned II Adhoc District Judge-2, Ambajogai on 3.12.2009 on application (Exh.59) in L.A.R. Darkhast No.65 of 2008, thereby attaching certain bank accounts of the present appellant. 2 02. Shri S.P. Shah, learned counsel for the appellant has produced a chart giving details of accounts, amounts lying therein, purpose for which account was opened, persons/authorities who have disbursing powers etc. The chart contains all accounts and there is also a column indicating whether particular account is attached or not. It also contains a column whether the amount is received from the State Govt./State Government. The said chart is taken on record and marked by letter "X" for the purpose of identification. 03. Some of the facts giving rise to this appeal need to be stated at this stage. Respondent No.1 is the original claimant whose land ad-measuring 3 acres situated at Parali was acquired by the Government under the provisions of the Land Acquisition Act for the benefit of present appellant-municipal council. Notification under Section 4 of the Land Acquisition Act was issued on 5.2.1982. Final award was passed by the Special Land Acquisition Officer on 13.11.1984, thereby awarding compensation at the rate of Rs.3.64 per square meter. Aggrieved thereby, present respondent No.1- claimant filed L.A.R. No. 1434 of 1987 in the District Court, which was decided by the Reference Court on 1.4.2008 thereby enhancing the rate of compensation from Rs.3.64 ps. per square meter to Rs.30/= per square feet. 3 Being aggrieved by the rate awarded by Reference Court, present appellant filed First Appeal No.194 of 2009. Respondent No.1-claimant also filed appeal feeling compensation awarded by Reference Court to be inadequate and not as per market value. In first appeal No.194 of 2009, present appellant-municipal council filed application i.e. C.A. No. 8897 of 2008 for stay. By order dated 26.3.2009, this court allowed the said application thereby granting stay to the execution of judgment and award passed by the reference court, on condition that the appellant-applicant shall deposit 25 per cent of the award amount within a period of eight weeks. It is admitted position that the said 25 per cent amount was not deposited. It is the case of the present appellant that it had applied for loan to the State Government, however, the said proposal was rejected on some technical ground. Period of 8 weeks given for depositing 25 per cent of the award amount expired on 21.5.2009. 04. The appellant thereafter filed another application i.e. Civil Application No.5113 of 2009 for extension of time and the matter initially came before the vacation judge and then before regular bench. By order dated 1.7.2009, this court rejected prayer for extension of time made in the said C.A. No.5113 of 2009. 4 05. In the meantime, pending above developments in first appeal No.194 of 2009, Respondent No.1-original claimant initiated execution proceedings bearing No.65 of 2008. On 12.11.2009, he filed application (Exh.59) in the said execution proceedings for attachment of various bank accounts in the name of present appellant-municipal council. Present appellant and Respondent no.2-State Govt. were heard on the said application and thereafter the executing court allowed the said application (Exh. 59), thereby ordering attachment of various bank accounts in the name of present appellant-Municipal Council, Parli Vaijanath. The details of those accounts are shown in the chart marked "X" which is referred to above. By application (Exhibit 68) the decree holder (present respondent No.1-claimant) sought directions to various banks to deposit the amount in the executing court and on 11.1.2010, the executing court allowed the said application, thereby directing various banks to deposit the amount in the court. Accordingly the amounts attached were deposited. It is also stated that on 4.2.2010, the State Bank of Hyderabad sanctioned loan to the appellant- municipal council and issued demand draft to be deposited in the court. Present appeal is directed against attachment of various accounts in various banks. 5 06. As regards total 25 bank accounts mentioned in the chart marked "X", it appears that no order of attachment was passed by the executing court in respect of bank accounts at serial Numbers 2,4,10,13,14,15,16,18,20,22 and 23. We, therefore, need not consider those accounts in this second appeal. So, we are concerned only with remaining bank accounts at serial Nos.1,3,5,6,7,8,9,11,12,17,19,21, 24 and 25, details in respect whereof as given in said chart marked "X" are as under: Sr No Account No. and Bank Amt. (Rs.) Scheme Authority which is vested with power Whether attache d or not? Concern ed Govt- Central /State Remarks 1 52071729874 State Bank of Hyderabad 477602 Land Acquisition and Bleaching powder Chief Officer, President and Town Planning Officer Yes State Assistance for acquisition of land from survey nos. 19,20 and 21 for 12M wide road 3 52071725075 State Bank of Hyderabad 4416326 Current Account (O.D.) Chief Officer and President Yes --- This is a loan account. The balance shown is in fact negative balance. 5 52071729513 State Bank of Hyderabad 3512502 11th and 12th Finance Commission A/c. Chief Officer, President and Tahsildar Yes Central Grant from Central Govt. for specified purpose as per the recommenda- tion of 12th Finance Commission 6 52071730335 State Bank of Hyderabad 207669 I.D.S.M.T. A/c. Chief Officer, President and Town Planning Officer Yes Central and State Grant from Central and State Govts. for implementa- tion of the Scheme 7 52071729943 State Bank of Hyderabad 21455 Road Grants A/c. Chief Officer and President Yes State Grant for construction of new roads and for repairs 6 8 50312010000054 IDBI Bank 753302 Scheduled caste habitation development scheme Chief Officer, President and Social Welfare Officer Yes State Grant received for implemen- tation of the scheme 9 50310010005318 IDBI Bank 50927 I.D.S.M.T. Scheme Chief Officer, President and Town Planning Officer Yes Central and State Grant received for implemen- tation of the scheme 11 30363883921 State Bank of India 1565560 Marathwada Statutory Development Corporation Grant Scheme Chief Officer and President Yes State Grant for installation of street lights etc. within city of Parali 12 30287575343 State Bank of India 5534217 Road Grant Chief Officer and President Yes State For Development of Roads 17 11154153290 State Bank of India 170250 Account of Municipal Council Chief Officer and President Yes ----- Account of Municipal Council 19 30197666062 State Bank of India 247027 12th Finance Commission Scheme Chief Officer, President and Tahsildar Yes Central Grant from Central Govt for specified purpose as per recommendati- ons of 12th Finance Comm. 21 11154153278 State Bank of India 911973 Additional Water Supply Scheme Account Chief Officer and President Yes --- --- 24 30296802037 Maharashtra Bank 4274121 Golden Jubilee City Scheme Account Chief Officer, President and Project Officer Yes State Grant received for the implemen- tation of the scheme 25 14665 Maharashtra Bank 855490 Golden Jubilee City Scheme Account Chief Officer, President and Project Officer Yes State Grant received for the implemen- tation of the scheme 07. Heard Shri S.P. Shah learned counsel for the appellant, Shri V.D. Salunke, learned counsel for Respondent No.1 and Shri B.V.Wagh learned counsel for Respondent No.2. 08. Learned Advocate Shri Shah for the appellant has mainly relied upon Section 60 and Rule 46-D of Order 7 XXI of the Code of Civil Procedure, 1908. It is submitted that as per Section 60, the court can attach money, securities, debts belonging to the judgment debtor or over which or profit of which he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf. It argued by Advocate Shri Shah that as stated in the chart marked "X", various bank accounts pertain to amounts sanctioned for different schemes and those are the amounts given to the appellant-municipal council for implementation of various schemes and, therefore, those amounts cannot be said to be belonging to the municipal council or over those amounts the municipal council has disposing power. He, therefore, submitted that attachment of amounts in various accounts shown in the said chart at "X" except accounts at serial Nos. 16 and 17 would not be proper. It is also submitted that as per Rule 46-D of Order 21 of C.P.C. if the debt belongs to some third person or that a third person has a lien, or charge or other interest, upon or in it, the Court may order such third person to be served with notice to appear and state the nature and particulars of his claim. 09. It is argued by Advocate Shri Shah for the appellant that so far as bank accounts at serial Nos. 5, 8 6 and 9 in the chart marked "X" are concerned, those are the grants received by the appellant-municipal council from Central Government for implementation of certain schemes and for the purpose of dues of Respondent No.1, amounts in those two accounts ought not to have been attached. Learned counsel Shri V.D.Salunke submitted that amounts in bank accounts at serial No. 5,6 and 9 in the chart marked "X" being received by the appellant- judgment debtor from the Central Government can not be said to money belonging to Central Govt. or over which Central Govt. has any lien or charge. 10. Learned counsel for the appellant also argued that in respect of many accounts, the powers to operate the account or draw and disburse the amount are vested not only in the Chief Officer or President of the Municipal Council, but also in other officers or authorities of the State Government. For the purpose, he referred to account at serial No.1 in the chart marked "X") which is in respect of land acquisition. The powers to operate the account are vested not only in the Chief Officer and President of the Municipal council but also in the Town Planning Officer. Similarly, bank account at serial No.5 in the said chart can be operated by the Chief Officer of the Municipal Council, its President and also by Tahsildar. Learned counsel also drew my 9 attention to the account at serial No.8 in respect of which powers of operation are vested in the Chief Officer, President of Municipal Council and also the Social Welfare Officer. Therefore, according to the learned counsel for the appellant, such accounts cannot be attached as the power of operation in respect thereof clearly indicates that the money does not belong to municipal council. 11. Shri V.D.Salunke, learned counsel for respondent No.1, submitted that money can be said to be of municipal council where-ever funds are placed at the disposal of the municipal council. Even though purpose of giving such amount or fund may be different, amounts are at the disposal of the municipal council. On the other hand, Shri S.P.Shah, learned counsel for the appellant, submitted that where ever the amounts are to be utilized in a particular way or for a particular purpose, it cannot be said that the municipal council has power of disbursement or disposal in respect of such amounts. He also relied upon various government resolutions produced on record along with civil application No.7521 of 2010. 12. One more development needs to be considered at this stage. Shri Salunke, learned Advocate for Respondent No.1 has placed on record, the certified copy 10 of application dated 24.6.2010 (Exh.68) that was filed by present appellant in the execution proceedings before the District Court. As per the said application, present appellant-applicant had shown readiness to deposit amount to the extent of 25 per cent of the total amount if the accounts attached by the court are released. It is further stated in the application that the applicant- appellant herein assures the court to deposit the remaining amount within 4 to 6 months. Shri V.D.Salunke, learned counsel for respondent no.1-claimant submitted that in fact his client was ready to accept the said proposal given by present appellant-municipal council. But for instructions given to the Advocate of the appellant, he stated that he wanted to argue this appeal on merits and he proceeded with his arguments. 13. So far as account at serial No. 1 in the chart marked "X" is concerned, learned counsel for the appellant fairly stated that it is an account in respect of land acquisition. He drew my attention to the government resolution dated 26.2.2009 at page 13 of civil application No.8481 of 2010 and submitted that the amount of Rs.25.00 lakhs was given for widening of 12 meter road. He also drew my attention to the fact that half of the amount was given as loan and remaining was given as grant. As per paragraph 3 of the said government 11 resolution, the amount was to be utilized for the said work within one year and certificate to that effect was to be produced. Learned counsel also drew my attention to account No.6 in the said chart marked "X", the government resolution regarding which is dated 7.3.2006 at page 19 of civil application No. 8481 of 2010 It is stated that the Director, Town Planning, Government of Maharashtra was the controlling officer in respect of said account. The amount was sanctioned by the Central Government. The learned counsel for the appellant also submitted that various government resolutions placed on record indicate that the amounts were sanctioned for particular purposes and therefore the same could not have been divested for some other purposes. 14. It may be noted that the municipal council is a public body. It is supposed to have its own budget. It is getting grants from both, the State Government and the Central Government, for development and implementation of various schemes in the town. It cannot be said that these are not the funds not made available to the municipal council and in respect of which it has no power of disposal. In the circumstances, I am not satisfied that merely because funds are made available by State Govt. or Central Govt. for various projects, the amounts in various bank accounts attached do not belong to the 12 municipal council or over the same it has no disposing power. I am, therefore, not in agreement with the proposition canvassed by learned counsel for the appellant that the amounts attached do not belong to, or over which the municipal council has no disposing power and, therefore, there is no bar of Section 60 of the C.P.C. as was sought to be argued by learned counsel for the appellant. Definitely, there would have been bar in respect of accounts at serial Nos. 2 and 4 of chart marked "X" in view of clear wording of Section 60 of the C.P.C. However, the executing court has not directed attachment of those two accounts. Same can also be saids regarding account at serial No.13. 15. So far as Rule 46-D of Order XXI of C.P.C. is concerned, it is argued on behalf of the appellant by Advocate Shri S.P. Shah that so far as accounts at serial Nos.5,6 and 9 mentioned in chart marked "X" are concerned, the union government is not a party to the execution proceedings and no notice was given by the executing court to the central government before attachment of accounts at serial Nos.5,6 and 9. Notes in remark columns in respect of said accounts clearly indicate that those are the grants received by the municipal council from the Central Government for particular purposes. So, those are the monies handed over 13 to the municipal council over which it has disposing powers. I am, therefore, not satisfied that there is bar even under Rule 46-D of Order XXI of C.P.C. in respect of those accounts as sought to be contended by learned counsel Shri S.P.Shah for the appellant. Attachment cannot be said to be bad-in-law 16. In the facts and circumstances of the case, this appeal fails and the same, therefore, stands dismissed at admission stage. pnd/FA1295.10 (P.R.BORKAR, J.)