Case: THE MUNICIPAL COMMITTEE, BARWALA, DISTRICT HISAR, HARYANA THROUGH ITS SECRETARY/PRESIDENT Vs. JAI NARAYAN AND COMPANY &amp; ANR

sewers, cesspools or elsewhere or deposited in places fixed by the committee under section 152; (e) all public lamps, lamp-posts, and apparatus connected therewith or appertaining thereto; (f) all land or other property transferred to the committee by the State Government or acquired by gift, purchase or otherwise for local public purposes; (g) all public streets, not being land owned by the State Government, and the payments, stones and other materials thereof, and also trees growing on, and erections, materials, implements, and things provided for, such streets; (h) Shamlat Deh. (2) Where any immovable property is transferred otherwise than by the sale by the State Government to a committee for public purposes, it shall be deemed to be a condition of such transfer, unless specially provided to the contrary, that should the property be at any resumed by the State Government the compensation payable therefor shall, notwithstanding anything to the contrary in the Land Acquisition Act, 1894, in no case exceed the amount, if any, paid to the State Government for the transfer together with the cost or the present value, whichever shall be less of any buildings erected or other works executed on the land by the committee. 62. Inventory and map of municipal property.—(1) The committee shall maintain an inventory and a map of, all immovable property of which the committee is proprietor, or which vests in it or which it holds in trust for the State Government. (2) The copies of such inventory and map shall be deposited in the office of the Deputy Commissioner and such other officer or authority as the State Government may direct and all changes, made therein shall forth with be communicated to the Deputy Commissioner or other officer or authority. 21. Clause 61(1)(h) of the 1973 Act is the subject matter of challenge in another appeal before this Court whereas clauses (a) to (g) except clause (f) deal with the public utility services. The clause (f) deals with, the land or other property transferred to the Committee by the State Government or acquired by gift, purchase or otherwise can be utilised only for local public purposes. 22. In terms of Section 62 of the 1973 Act, the Municipal Committee is required to maintain an inventory and map of all immovable property of which the Committee is the proprietor or which vests in it or which it holds in trust for the State Government. In the absence of nature of land as to whether it is a land owned by the Municipality and is not vested with the Municipality in terms of Section 61 of the Act, no direction by the courts could have been granted. It has not come on record as to whether such land was vesting with the Municipal Committee or that it was not mentioned in the list of inventories of the properties of Municipal Committee. We find that Municipal Committee was remiss in defending its property as a custodian of public property. 23. Section 245 of the 1973 Act falling in Chapter XII (Control) empowers the Deputy Commissioner or any other officer not below the rank of Assistant Commissioner by a general or special order to carry out the functions assigned therein. The Deputy Commissioner has a power to suspend any resolution or order of Committee under Section 246. Any action taken by the Deputy Commissioner under Sections 246, 247 or 248 of the 1973 Act is to be reported to the Commissioner. 24. Section 250 of the 1973 Act confers power with the State Government to issue directions for carrying out the purposes of the Act. The said provision reads thus: 250. Power of State Government to give directions.—The State Government may issue directions to any committee for carrying out the purposes of this Act and in particular with regard to— (a) various uses to which any land within a municipal are may be put; (b) repayment of debts and discharging of obligations; (c) collection of taxes; (d) observance of rules and bye-laws; (e) adoption of development measures and measures for promotion of public safety, health, convenience and welfare; (f) sanitation and cleanliness; (g) establishment and maintenance of fire-brigade. 25. It is in pursuance of the powers conferred on the State Government, a message was conveyed on 12.9.1994 on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. The learned trial court has discarded such communication for the reason that such communication has not been proved as per the provisions of the Indian Evidence Act, 1872. It may be stated that the State or the Deputy Commissioner was not impleaded as a party to the civil suit filed. In fact, the objection raised was that the State has not been impleaded as a party. Such communication has been produced by the Municipal Committee when the Committee examined Shri Mahavir Singh, Secretary as DW-1 and Shri Sandeep Kumar, Building Inspector as DW-2. Such communication has come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts have been regularly performed. The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record. 26. Thus, since direction issued by the State Government is in terms of Section 250 of the 1973 Act, the Deputy Commissioner was bound to seek approval of the State Government. The binding nature of such instructions is evident from the fact that the Deputy Commissioner has sought approval from the State Government when a communication to this effect was addressed on 10.1.2007. 27. In view of the above, we find that the plaintiff has been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We have heard learned counsel for the parties and find that the decree passed by the three courts below, to say the least, is a perverse reading of the provisions of law as well as the factual position.The communication dated 10.1.2007 (Ex P-34) referred to by the plaintiff is not the communication by the Deputy Commissioner to the Municipality or to the plaintiff that the sale stands confirmed. In fact, it is an inter-departmental communication with no endorsement of the copy of the said communication to the plaintiff. Thus, the reliance of the plaintiff on the communication dated 10.1.2007 (Ex.P/34) is not helpful to the argument raised by him as it is the inter-departmental communication from the Deputy Commissioner to the Director, Urban Local Body Department to seek approval but in the absence of any approval granted, no right would accrue.11. Therefore, no concluded contract ever came into force. Reference may be made to the judgment of this Court reported as Haryana Urban Development Authority & Ors. v. Orchid Infrastructure Developers Private Limited (2017) 4 SCC 243,  wherein this Court held as under:13. Firstly, we examine the question whether there being no concluded contract in the absence of acceptance of bid and issuance of allotment letter, the suit could be said to be maintainable for the declaratory relief and mandatory injunction sought by the plaintiff. The plaintiff has prayed for a declaration that rejection of the bid was illegal. Merely by that, plaintiff could not have become entitled for consequential mandatory injunction for issuance of formal letter of allotment. Court while exercising judicial review could not have accepted the bid. The bid had never been accepted by concerned authorities. It was not a case of cancellation of bid after being accepted. Thus even assuming as per plaintiffs case that the Administrator was not equipped with the power and the Chief Administrator had the power to accept or refuse the bid, there had been no decision by the Chief Administrator. Thus, merely by declaration that rejection of the bid by the Administrator was illegal, the plaintiff could not have become entitled to consequential relief of issuance of allotment letter. Thus the suit, in the form it was filed, was not maintainable for relief sought in view of the fact that there was no concluded contract in the absence of allotment letter being issued to the plaintiff, which was a sine qua non for filing the civil suit.14. It is a settled law that the highest bidder has no vested right to have the auction concluded in his favour. The Government or its authority could validly retain power to accept or reject the highest bid in the interest of public revenue. We are of the considered opinion that there was no right acquired and no vested right accrued in favour of the plaintiff merely because his bid amount was highest and had deposited 10% of the bid amount. As per Regulation 6(2) of the Regulations of 1978, allotment letter has to be issued on acceptance of the bid by the Chief Administrator and within 30 days thereof, the successful bidder has to deposit another 15% of the bid amount. In the instant case allotment letter has never been issued to the petitioner as per Regulation 6(2) in view of non-acceptance of the bid. Thus there was no concluded contract.......It has been held by the Constitution Bench in a judgment reported as Bachhittar Singh v. State of Punjab AIR 1963 SC 395  that merely writing something on the file does not amount to an order. It was held as under:10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh............... Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the order of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh (AIR 1961 SC 493  at page 512] :xxx xxx xxx11. We are, therefore, of the opinion that the remarks or the order of the Revenue Minister, PEPSU are of no avail to the appellant.14. Furthermore, this Court in a judgment reported as Union of India v. Avtar Singh (1984) 3 SCC 589  held that letter does not records the decision of the Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act 1954, so as to be a decision by the Central Government. It was observed as under:19. .…..Therefore the High Court was clearly in error in treating the letter of Shri Dube dated May 31, 1963 as a decision of the Central Government in exercise of the power conferred by Section 33. There was no reason for decision nor any occasion for the Central Government to exercise power under Section 33 and therefore, it is not possible to agree with the High Court that the letter records the decision of the Central Government under Section 33. If the letter of Shri Dube is not a decision of the Central Government under Section 33 of the Act, as a necessary corollary, the impugned decision must be treated as one rendered for the first time in exercise of the revisional power under Section 33 and therefore, it cannot be said to be one without jurisdiction. In this view of the matter, the appeal will have to be allowed.16. This Court in a judgment reported as State of Uttaranchal v. Sunil Kumar Vaish (2011) 8 SCC 670  held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under:24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493 , Bachhittar Singh v. State of Punjab AIR 1963 SC 395 , State of Bihar v. Kripalu Shankar (1987) 3 SCC 34,  Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84,  Sethi Auto Service Station v. DDA (2009) 1 SCC 180  and Shanti Sports Club v. Union of India (2009) 15 SCC 705) .17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law.18. The suit was not maintainable for the reason that there was no vested right with the plaintiff to claim such a decree merely on the basis of a participation in the public auction. Secondly, even if the plaintiff had any right on the basis of an auction, he could at best sue for specific performance of the so-called agreement. In Orchid, the plaintiff had sought decree of declaration and of consequential mandatory injunction. This Court held that such suit was not maintainable as no concluded contract came into existence by merely submitting the highest bid. In these circumstances, suit for mandatory injunction was not maintainable.19. It is to be noted that though the plaintiff had served a notice on 14.9.2006, but still the suit was filed in the year 2011 in respect of the auction conducted in the year 1999. The suit for mandatory injunction was filed on or after 13.6.2011, i.e., more than 12 years after the auction was conducted on 23.3.1999. Therefore, even the suit for specific performance was barred by limitation as such suit, even if maintainable, could be filed within three years of the auction being conducted in terms of Article 54 of the Schedule to the Limitation Act, 1963. The suit for injunction was filed beyond the period of limitation and was not properly constituted. The courts have not examined such aspect as was expected to examine legally.22. In terms of Section 62 of the 1973 Act, the Municipal Committee is required to maintain an inventory and map of all immovable property of which the Committee is the proprietor or which vests in it or which it holds in trust for the State Government. In the absence of nature of land as to whether it is a land owned by the Municipality and is not vested with the Municipality in terms of Section 61 of the Act, no direction by the courts could have been granted. It has not come on record as to whether such land was vesting with the Municipal Committee or that it was not mentioned in the list of inventories of the properties of Municipal Committee. We find that Municipal Committee was remiss in defending its property as a custodian of public property.25. It is in pursuance of the powers conferred on the State Government, a message was conveyed on 12.9.1994 on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. The learned trial court has discarded such communication for the reason that such communication has not been proved as per the provisions of the Indian Evidence Act, 1872. It may be stated that the State or the Deputy Commissioner was not impleaded as a party to the civil suit filed. In fact, the objection raised was that the State has not been impleaded as a party. Such communication has been produced by the Municipal Committee when the Committee examined Shri Mahavir Singh, Secretary as DW-1 and Shri Sandeep Kumar, Building Inspector as DW-2. Such communication has come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts have been regularly performed. The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record.26. Thus, since direction issued by the State Government is in terms of Section 250 of the 1973 Act, the Deputy Commissioner was bound to seek approval of the State Government. The binding nature of such instructions is evident from the fact that the Deputy Commissioner has sought approval from the State Government when a communication to this effect was addressed on 10.1.2007.27. In view of the above, we find that the plaintiff has been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder.