n INT-H^^I<gli^^BRl'©ifHN^TISG^^ l':-;'l;^^!IBtNASNU-Rl:{C.G.y:^^ \ • ' . ' WRlTPETlflON(GySl2<^..2007 (Sjngl^Bench/GivilMatter) ; PETITIONER: ^_// SlVIT.NEERUSONI ^-"^ir AgedaboutSSyears f^.^^^^^^^ ^ '^^•••^'^' ^^^ •••:^\>v" ^y '^_..^ RESPONDENT ^M .^ p^' ^ 2, R/o MIG,(C) 166, Vaishali Nagar t( Tah. & Distt- Durg (C.G.) VERSUS JSTATEOFCHHATTISGARHANDANOTHER Through : Prineipal Secretary Urban Adttiinistration Development ; Govt. QfShhattisgarhMantralaya D.K.S. Bhawan,Raipur(C.©i).^^^^^^^^^^^^^^^ MUNICIP^LC<^l:^RA'l-|j63N^l-l|l..^l ;ThrdUgti: Comrtiission^igrai.iniisipal Coi-poration Bhilai, Tah. & [Sistt.- DurgS < - m PET)yi©NUND£^AFtlri(Sl-E2260FTHE<X)NSfl r EB'nBP HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENT WritPetition (QNo. 5789 of2007 Smt. Neru Soni. VERSUS State ofChhattisgarh & Another. APA ^ PETITIONER RESPONDENT AND • Writ Petition (QNo^5844of2QQ7 Smt. Vandna Soni. VERSUS State ofChhattisgarh & Another. M Post for pronouncement oforder on ..Y. day ofOctober, 2010. Sd/- Satisb K. Agnihotri Judge 'f '!a ::i® s HIGH CQURTQF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENT WritPetition(C') . 5189_of2007 Smt. Nem Soni. VERSUS State ofChhattisgarh & Another. 'w. t' PETITIONER RESPONDENT AND Writ Petition (C) No. 5844 of2007 Smt. Vandna Soni. VERSUS State ofChhattisgarh & Another. PETITION UNDERARTICLE 226 OF THE CONSTITUTION OF INDIA SB:Jion!bl^ShnSatishK,AgnihQtrL 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 Advocate with Ms. Pragya Singh, Advocate for the respondent No. 2. ORDER (Delivered on .Wt:d&y of October, 2010) Heard. 1. Since both the wit petitions i.e. Writ Petition (C) No. 5789 of 2007 and WritPetition (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, r- Municipal Corporation, Bhilai, District Durg, whereby allotment of shop bearing No. F/16 in the 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 refund of the security deposit and 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 Conunercial 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 amoimt of the final bid to the tune of Rs. 56,500/- and Rs. 57,000/- respectively were deposited. After completion of the auction and deposit of installments, all of a sudden, the petitioners received the impugned order dated 8.6.2007 (Annexure P/4) before execution ofthe agreement, to the effect that that the shops allotted earlier in auction to them had been cancelled. Thereafter, respondent-Corporation fixed the date for re-auction of the shop on 23.08.2007. The petitioners filed a writ petition being W.P.(C) No. 4982/2007 and 4983/2007 respectively before this Court, which were dismissed by a conunon order dated 27.08.2007 (Annexure 6. P/6), on the ground of non-joinder of State of Chhattisgarh, as a necessary party. The petitioners have preferred the instant petition impleading State ofCUhattisgarh 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 (Annexure P/5) for the shops in question could not take place on account of the interim order granted by this Court on 05.10.2007 (in both tiie writ petitions). Shri Tamaskar, leamed counsel appearing for the petitioners would submit that the contract of sale was complete when the final bid was accepted by the respondent No. 2. Ttie 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 conditions which requires approval of the State Govemment, after acceptance of the fmal bid. Even otherwise, the respondent-Corporation was competent to lease, sale or ofherwise 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 Bhilai Steel Plant .(for short 'the 5>SP') and the same was ta-ansferred to respondent-Corporation, on lease. Thus, the State could not put any restriction prescribed in the CKhattisgarh 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 in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner fhat 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 land 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 'Res- Judicata' also. The State Govemment is the fmal authority to grant sanction and in the case, since sanction was not granted by the State Govemment, the sale in favour of the petitioners canuot 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 and every sale , or other conveyance of property vesting in the Corporation shall 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. Secondly, right of the petitioners arose from a contractual agreement, thus, writ petition is not maintainable to enforce such right which had not accmed till date from the contractual agreement. Both the respondents deny the statement of the 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 Madliya Pradesh in Municipal Corporation, Satna v. Badri Prasad & Others and on a decision of a Division Bench ofthis Court in Vijay 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 (Annexure P/7), all the participants includmg the petitioners were made aware that after completion ofthe auction, the auction would be subject to sanction/approval of the State Govemment. Thus, the right in favour of fhe successful bidders would 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. GwaSior & Others ' 2001 (4)MPH 387 2 W.A. No. 326/2010, decided on 17.09.2010. 3 (1987) 1 SCC 5 ^^.s's^ ::;i"^»i?'7—.^'-•' % ,; -> '""i 1 ^ ^•^.,-y / ^ . y^-.'-.;.— • _^ 11. which was referred with approval m 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 permission of the Court, and the petitioners re-instituted a fresh petition, held that second petition is not maintainable 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 fhe 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 fmal authority to accept the bid ofthe parties and it does not prescribe for approval of the State Govemment (1999) 1 SCC 81 €.. for allotonent. Clause 4 of the general terms and conditions of the auction notice dated 08.02.2006, reads as uader: "'.iTOidi ^1cn<;idi ^t ^rftr ^t •^\4>fi 'v sf^fsijsi w^ q»r arfa^R aii^cM. '•PR PFTT ftai^ cpT ?hn i" 12. On going through the Tenns and Conditions of Allotment of the Shops by Auction (Annexure P/7), it is clearthat clause 13 provides for approval ofthe State Govemment for allotment of shops. It is specifically 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 the shop/building if the allotment is not approved by the Govemment and the bidder shall be entitled to refimd of fhe amoimt with interest. No claim thereof shall be entertained. Clause 13 ofthe Tenns and Conditions ofAllotment ofShops by Auction (Annexure P/7) reads as under: "PFPT gm qtcft WTT<T ?t4 ^ ^K Pl't|*11j,'HI'< VSSf ^TRFT -^ '^^RT TTP<T ^St ulllj'n ] '^^RT 1TTCT "gt^ ^ ^R ^I? ilPIT ^TT^TT ^t ^(.niiK ^ ^^r wRa ^ w^ w siSRiR F\<iw^'u\'i W Shni Vfit '?1w4 ^TRFT ^ ^t^Rr qrcr :-i€f ?t(ft ^ra cre «i1cn<;i< v) <i<i'16)d »ipr ^FT/'TO^T W cpt^ 3l|6|*l< T1TCT ;I^f Shn ^ ft^IT aiTuf yRlijRF ^ ~w ^rRr HTCT ^T^ cpT SlRraiR 'gtV ^faTT cpt^ ^rar pripT gy^ •qpq ^S ?NT 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 fhat any property vesting in the Corporation shall be '^ '^ /•e 1. ^ ""^^* -<'~ 14. 15, leased, sold or otherwise conveyed in a maimer that is likely to prejudicially affect the purpose of the trust subject to which such property is held. Thus, it is clear that if a property in trust is vested in the Corporation, there is no other restriction except the conveyance ofthe property by lease or sale ofher otherwise should not be prejudicially affecting the purpose of the tmst. Clause (ii) ofthe proviso to section 80(5) prescribes that no land of the Corporation shall be sold or otherwise conveyed without the previous sanction of the Govemment and further, every sale or other conveyance of property vesting in the Corporation shall be deemed to be subject to the conditions and limitations imposed by this Act or any other enactment for the time being in force. Reliance of Shri Agrawal on a decision ofa Division Bench of this Court in Vijay Ratan Lal Rathi (supra), is not relevant to the facts ofthe case as there was no question of cancellation of allotment ofshops in auction purchase. Section 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 of the Corporation. Assuming without holding that the land was held by the respondent- Corporation on lease, but the same was under the management ofthe Corporation. Thus, the provisions ofsection 80 would he applicable to the facts ofthe present cases. "s1 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 that neither a transfer deed indicating transfer ofland or any other document has been produced, particulariy in the teeth ofthe strong denial ofthe fact by the respondents. The BSP is not present to assist the Court in establishing the averments 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 fhe basis of averments made in the pleadings. The competent court is civil court, having thejurisdiction. 17. In case of Badri Prasad (supra), there was no consideration firstly with regard to general tenns and conditions of contract and secondly, whether 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 elause 13 of the Terms and Conditions of Allotment of Shops by Auction (Annexure P/7), was a part of the contract and thus, fhe auction sale was not complete as sanction/approval was not accorded to the petitioners. This is not the case of the petitioners that the terms and conditions are inconsistent with the statutory provisions. Thus, no right has 10 accrued in favour of the petitioners before the 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 only one installment has been paid. 19. As a result, both the writ petitions are dismissed. The petitioners are entitled to refimd 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 Amit