Supreme Court of India
BAHADURSINH LAKHUBHAI GOHILversusJAGDISHBHAI M. KAMALIA AND ORS.
- Citation
- 2003 INSC 728
- Decided
- 17 December 2003
- Disposal
- Dismissed
- Bench
- ASHOK BHAN
Holding
The conditional allotment was cancelled for non‑payment, no title passed, and the corporation’s order to incorporate the name and lease the plot was ultra vires; the High Court’s judgment was upheld.
Summary
An auction was held by the Bombay Provincial Municipal Corporation (then Gujarat) in 1951 for a 99‑year lease of a vacant plot. The highest bidder, Shri Vajubha (predecessor of the appellant), paid only part of the premium and was given a three‑month extension to pay the balance, with a condition that failure would cancel the allotment. He never paid the balance, nor took possession or paid rent, and after about 44 years applied to have his name entered in the lease register; a new chairman later passed a resolution to do so and ordered recovery of the balance and lease to him, after which he transferred the land to the appellant. A public‑interest litigation challenged this order and the Gujarat High Court quashed the resolution, directing the corporation to take possession. On appeal, the Supreme Court held that the conditional allotment had been cancelled, the statutory requirements of Section 79 of the Bombay Provincial Municipal Corporation Act and Section 17 of the Registration Act were not complied with, and the corporation’s order was ultra vires; consequently the High Court’s decision was affirmed and the appeal dismissed.
Issues considered
- The conditional allotment was cancellable for non‑payment of the balance premium.
- Whether the corporation had authority to incorporate the bidder's name in the lease register after 44 years of default.
- Whether the Chairman of the Standing Committee could review or reverse the Commissioner’s order.
- Whether the High Court erred in quashing the corporation’s resolution and order.
- Whether the Supreme Court should entertain the appeal under Article 136.
Legislation cited
Subjects
auctionmunicipal corporationleaseconditional allotmentcancellationpublic interest litigationultra viresadministrative lawSection 79Section 17possessiontitleArticle 136statutory authorityadverse possession
Judgment
BAHADURSINH LAKHUBHAI GOHIL A
v.
JAGDISHBHAI M. KAMALIA AND ORS.
DECEMBER 17, 2003
[ASHOK BHAN AND S.B. SINHA, JJ.] B
Bombay Provincial Municipal Corporation Act, 1949-Section 79-
Auction by Municipal C01poration-Grant of lease of vacant plot for 99
years-Payment ofpart premium-Allotment subject to deposit of balance
amount within time specified otherwise to be cancelled-Auction-pur-. C
chaser neither paying balance .amount nor rent nor taking steps for
obtaining possession-However, after 44 years seeking incorporation of
his name in lease register-Also willing to deposit the amount-Chairman
rejecting the same-However, newly elected Chairman passing resolution
in the meeting for incorporation of his name-Order issued for reco~e1y D
of balance amount and leasing out land to the purchaser-Purchaser
thereafter transferring the land-Public Interest Litigation questioning
action of Corporation-High Court quashing the resolution and allowing
the petition-Justification of-Held... By passing order of recovery of
balance amount and leasing out the land public interest given a complete
go-by and valuable public property doled out at the behest of those who E
are duty bound to protect the same thus, order of High Court justified and
is not a fit case for "xercise of discretionary jurisdiction under Article
136-Constitution of India, 1950 Article 136.
Administrative Law : F
Malatide-Presumption of-When act~on is taken in undue haste
malafide can be presumed.
Decision when ultra vires-When it is taken by statutory authority
at the behest or on suggestion of person who has no statutory role to play. G
Municipal Corporation held auction for granting vacant plot of
land. Respondent No. 7-predecessor-in-interest of appellant being
highest bidder was allotted land for period of 99 years. He deposited
part-premium and was granted extension of three months for making H
1023
1024 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R..
A payment which was subject to the condition that on failure to do so
it will be cancelled. Respondent No. 7 did not deposit the bal~nce
amount nor rent nor municipal tax nor took any steps for obtaining
possession. Meanwhile, P filed suit in relation to the plot and respond-
ent-Corporation asserted right, title, interest as also possession in itself.
B After expiry of 44 years respondent No. 7 made applications to the
Commissioner of Municipal Corporation to enter his name in lease
register on deposit of balance amount. Chairman of Standing Commit-
tee rejected the application. But soon after the election of new
Chairman, resolution was passed to incorporate the name of respond-
ent No. 7 in lease register even though proposal for considering
C respondent No. 7's application was not included in the agenda and also
the respondent No. 7 did not move any fresh application. Thereafter,
order was issued for recovery of the balance amount with interest and
to lease out the land to respondent No. 7. Respondent No. 7 then
transferred the land to the appellant for a sum of Rs. 4 lacs. Respondent
D Nos. 1 and 2 filed public interest litigation questioning the incorporation
of respondent No. 7's name in municipal register by respondent-
Corporation. High Court quashed the resolution and allowed the
petition. Hence the present appeal.
Appellant contended that the High Court com"mitted a manifest
E
error in passing the impugned judgment without hearing the appel-
lant; and that as the Competent Authority for good and valid reasons
accepted the balance money and entered the name of the respondent
No. 7 in the lease register, the High Court should not have interfered
therewith.
F
Respondent contended that having regard to the provisions of
Section 17 of the Registration Act, no title passed on to respondent
No. 7; that the finding of the High Court to the effect that no possession
was delivered to the highest bidder or to his successors interest being
G a finding of fact, no interference therewith by this Court is warranted;
that the applications having been rejected by the respondent-Corpo-
. ration as also by the Chairman, Standing Committee, the new incum-
bent of the said office could not have considered the matter afresh in
absence of any statutory power to review the said orders; and that the
H applications, if construed to be applications for grant of fresh lease, the
B.L. GOHIL v. J.M. KAMALIA 1025
provisions of Section 79 of the Bombay Provincial Municipal Corpo- A
ration Act, 1949 were required to be complied which having not been
done, the orders impugned in the writ petition are wholly illegal and
without jurisdiction.
Dismissing the appeal, the Court
B
HELD: 1.1. In the instant case, allotment order was a conditional
one, afortiorari upon respondent No. 7's failure to deposit the amount,
the allotment stood cancelled. (1034-FI
1.2. The statutory conditions for grant of lease under Section 79 of C
the Bombay Provincial Municipal Corporation Act as also Section 17 of
Registration Act, were not complied with, therefore, respondent No. 7
did not deriYe any title by reason of said auction or otherwise.
[1034-G-H)
Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. D
Sipahi Singh and Ors., AIR (1977) SC 2149, referred to.
1.3. It cannot be said that the order directing recovery of the
balance amount with 24% interest and to lease out plot of land was
passed upon obtaining ·a legal opinion and keeping in view the fact that
possession had rightly or wrongly been delwered. Furthermore, it is E
difficult to believe in the peculiar facts and circumstances of the case
that possession of the plot in question had been handed over to
respondent No. ~. [1035-E-G)
1.4. If possession of the plot had been delivered, the respondent- F
Corporation was bound to prepare document in respect thereof
whereof at least a receipt was required to be obtained from the auction
purchaser showing that such possession had been delivered, the date
on which the same was done could have been found out from the
records of the municipal corporation. No such document exi::ts. No
document showing exercise of any act of possession or payment of G
ground rent has been produced. Also there is no noting in the file to
that effect even though noting in the file would not confer any right
upon a person. Only because, an Officer in one of the correspondence
had mentioned that possession had lJeen delivered, the same, could not
have been ar.~epted as a sacrosanct. [1036-B-DI H
1026 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R.
A Bachhittar Singh v. State of Punjab and Anr., AIR (1963) SC 395,
referred to.
1.5. There was absolutely no reason as to why only a few weeks
before the purported transfer made in favour of appellants, respondent
B No. 7 would file applications praying for entering his name in the lease
register and showing his readiness and willingness to deposit the balance
amount. Respondent No. 7 would have pleaded acquisition of title by
adverse possession as also waiver of the balance amount. [1036-E-F)
1.6. The Chairman of the Standing Committee does not have any
C power to review the order passed by the Commissioner or his pred-
ecessor in interest nor there exists any provision for appeal against the
· orders of Com~issioner or the Corporation. A change in the opinion
came into being only upon change in the holder of the office and that
too within a few days. Not only the matter had not been admittedly
D placed on the agenda of the meeting, the same was considered showing
undue haste. (1036-G-H; 1037-D-E)
Dr. S.P. Kapoor v. State of Himachal Pradesh and Ors., AIR (1981)
SC 1281, referred to •
.E 1.7. If any decision is taken by a statutory authority at the behest
or on the, suggestion of a person who has no statutory role to play, the
same would be ultra vires, In the instant case, the purported transaction
effecting transfer of property by respondent No. 7 in favour of
appellants for Rs. four lakhs is a pointer to the fact that such action
F was taken at the behest of appellants. By reason of the impugned order,
public interest has been given a complete go-by and a valuable public
property was doled out at-the behest of those who are duty bound to
protect the same. [1037-G-H; 1037-C-D; 1038-A-B)
G Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (1961)
SC 16 and Mohinder Singh Gill and Anr. v. The Chief Election Commis- · ·
sioner, New Delhi and Ors., [1978) 1 SCC 405, relied on.
Bangalore Medical Trust v. B.S. Muddappa ai1d Ors., [1991} 4 SCC
H 54, referred to.
B.L. GOHIL v. J.M. KAMALIA [SINHA, .I.) 1027
1.8. Regarding the grievance of appellant of being heard, the counsel A
have been heard at great length. Further, the order impugned in the writ
petition was passed in favour of respondent No. 7 who was present in the
Court. Also, the then authorities of Municipal Corporation supported ·
the order impugned in the writ applications. Also, the appellants were
given notice but despite knowledge of the pendency of the writ petition, B
chose not to appear before the High Court. (1038-D-E)
2. As substantial justice has been done. it is not a fit case where
this Court should exercise its discretionary jurisdiction under Article
136 of the Constitution. [1038-E-F)
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 32 of 1999.
From the Judgment and Order dated 26.3.98 of the Gujarat High
Court in S.C. Appln. No. 7699 of 1997.
D
K.N. Bhat, P.H. Parekh and Rohit Alex for the Appellant.
C.A, Sundaram, R.P. Bhatt, Jatin Jhaveri, Abhijat P. Medh, S. Prasad,
Ms. Meenakshi Arora, Anshul Singal, George Paulose, Vijay Patel,
Himanshu Uppadhaya, P.N. Puri, Ms. H. Wahi, Ms. Archna Palkar and
Mis. l.M. Nanavati Associates (NP) for the Respondents. E
The Judgment of the Court was delivered by
S.B. SINHA, J. : A Public interest litigation was filed by the first
respon~ent herein questioning an action of the respondent-Corporation and F
its chafrman of the Standing Committee insofar as incorporation of the
name of the ·respondent No. 7 in the municipal register was allowed.
FACT:
An auction was held by the respondent No. 3 herein for granting a G
vacant land and bearing plot No. 2557 admeasuring 90 x ISO feet (1500
square yards) for a period of 99 years on or about 7.11.1951. One Shri
Vajubha (since deceased), the predecessor in interest of the appellant herein
became the highest bidder by offering a sum of Rs. 360 being the one time
premium. The said Shri Vajubha deposited a sum of Rs. 270 on or about H ·
1028 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A 14.2.1952 and prayed for grant of three months' further time for paying
the balance sum of Rs. 90. The respondent No. 3 agreed to the
aforementioned offer ·by a letter dated 19.2.1952 directing that the said
amount must be paid'within three months in default, the allotment will be
cancelled. Admittedly the said amount was not deposited. No rent was also
B paid by him to the respondent Corporation.
One Pandya Minaben Kuberbhai filed a suit in relation to Plot No.
2557 being suit No. 30 of 1990 in the Court of Civil Judge (S.D.).
Bhavnagar wherein a written statement was filed by the respondent -
Corporation asserting right title and. interest as also possession therein.
c Late Shri Vajubhai or the respondent No. 7 herein did not take any
step in relation to the land in question either for obtaining possession,
payment of balance amount of the auction amount or assessment of
municipal taxes. Only upon expiry of about 44 years, the respondent No.
7 wrote two letters dated 25.7.1996 and 31.7.1996 to the Commissioner
D of the respondent No. 3 to enter his name in the lease register expressing
his readiness and willingness to deposit the further sum of Rs. 90. The then
Home Minister of the State of Gujarat by a Jetter dated 7.9.1996 instructed
the respondent No. 3 herein to incorporate the name of the respondent No.
7 in the register. However, the Estate said applications by a
E lettl!r dated 26.9.1996. Despite the said rejection, the respondent No. 7
herein by a letter dated 3.10.1996 requested the Chairman, Standing
Committee for incorporating his name in the lease register which was
rejected by the then Chairman, Mr. Laxman Radheshwar in the following
terms :
F "It appears from complete examination of papers that claimant
Vajubha Hathisinh has not paid amount for the plot he had taken
in auction as per the Rules.
It is said that plot No. 2557I A was purchased in 1951 in
auction. The claimant was given notice and further time to pay
G the balance amount but he had not paid the same. Therefore,
allotment of plot stands forfeited as per Rules, which he claims
after 46 years.
The price of the plot has arisen many times in 46 years and
if now the plot is given to the claimant, the Corporation is stand
H
B.L. GOHIL v. J.M. KAMALIA [SINHA, J.] 1029
to. lose crores of rupees and the Corporation is planning to A
construct Commercial Complex on this plot. In the circumstances
nothing remains to be done and the matter is hereby returned."
The said letter was contained in Annexure I to the writ petition and
a copy thereof has been produced before us by Mrs. Sundaram, the learned
senior counsel appearing on behalf of the respon1er:t-Corporation. Prior B
thereto, it appears that a legal opinion was obtained on the subject matter.
It further appears that on 8. 7. l 997 an election was held for the post of
Chairman of the Standing Committee and the respondent No. 5 Mr.
Mahpatsingh Gohil was elected. Soon thereafter i.e. on 23.7.1997, an
agenda was purported to have been circulated for meeting of the members C
of the Standing Committee to be held on 25th July, 1997 wherein, however,
the proposal for consideration of the applications filed by the respondent
No. 7 herein did not find place. Despite the same, allegedly a resolution
was passed to incorporate the name of the respondent No. 7 in the lease
register; pursuant whereto and in furtherance whereof, the respondent D
No. 3 herein issued an office order on 30th July, 1997 directing recovery
of a sum of Rs. 90 with 24% interest thereon from the respondent No. 7
and to lease out the plot ofland to him subject to the following conditions:
"l. The applicant, has to pay the whole of the amount remaining
due together with penal interest at the rate of24% within 15 days. E
2. The final decision in Civil Suit No. 30/90 will be binding.
3. The allotment on lease for 99 years is made for the residential
purpose only and all its conditions shall be agreeable and binding F
to the applicant.
4. Shall have to complete all the proceedings in order to bring his
name on record."
It is not in dispute that at least two members of the Standing G
Committee demanded cancellation of the said Resolution on the ground
that the said resolution did not find place in the agenda nor had it been
discussed or approved by the Standing Committee. It does not appear that
any decision had been taken thereupon. In the meanwhile the respondent
No. 7 herein allegedly transferred the said land to the appellants herein for H
1030 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A a sum of Rs. 4 lakhs. The public interest litigation was thereafter filed by
the respondent Nos. l and 2. In the said writ petition, the appellants herein
were impleaded as a party respondents. ·
PUBLIC INTEREST LITIGATION :
B In the said writ petition, the respondent No. 3 filed a counter-affidavit
supporting the case of the respondent No. 7 wherein inter alia it was
alleged that the impugned decision had been taken keeping in view the fact
that the possession of the plot was handed over to the respondent No. 7.
The respondent Nos. l and 2 filed an ·affidavit of service stating that
C appellant herein refused to accept the same. The appellant, however, wrote.
a letter to the Registrar, High Court that he did not receive the notice and
his letter should be placed on record before the Court.·
The matter was taken up for hearing with the consent of the parties
and by reason of the impugned judgment dated 26j. l 998, the writ petition
D wru: allowed by a Division Bench holding :
"In the above-referred circumstances, we are of the view that the
impugned order dated 30th July 1997 passed by the respondent
Corporation and Resolution No. 185 passed by the Standing
E Committee on 25th Juiy, 1997 are illegal and unjust and they are
hereby quashed and set aside. As the said resolution is quashed
and set aside, as a consequences thereof, legal heirs of late Shri
Vajubha shall not get any right in respect of the land in question
and their names, if entered in the register of lease maintained by
the Corporation, shall be deleted from the lease register and no
F agreement of lease in respect of the land in question shall be
entered into by the Corporation with the heirs of late Shri
Vajubha; Needless to say that respondent No. 6 shall not get any
right in respect of the land in question as the legal heirs of late
I Shri Vajubha are not having any right in respect of the land in
G question and, therefore, they could not have transferred or as-
signed any right to respondent No. 6 in respect of the land in
question. The Corporation shall forthwith do the needful to take
actual possession of the land if the possession has been given to
anyone. The Corporation shall also see that nobody puts up any
H construction on the land in question."'
B.L. GOHIL v. J.M. KAMALIA [SINHA, J.] 1031
It was further directed : A
"Looking to the fact that the property belonging to the Corpora-
tion has been attempted to be disposed of against the interest of
the Corporation in an improper and unjust manner, we direct
respondent No. 4 to look into the matter and initiate appropriate B
proceedings against the concerned Councillors of the Corporation
under provisions of the Bombay Provincial Municipal Corpora-
tions Act, 1949. It is hoped that an appropriate decision to initiate
action shall be taken within three weeks from the date of receipt
of the order by respondent No. 4."
c
FINDINGS OF THE HIGH COURT :
The High Court considered the matter at great length. It called for and
perused the records maintained by the respondent No. 3. It was held that
late Shri Vajubha did not make.any payment during the extended period D
of three months, although, in a letter written by the Chief Officer of the
Municipality, a reference had been made to the effect that Shri Vajubha
was given possession of the plot on the condition that he would make
payment to the remaining amount of premium within three months from
16th February, ~952. The High Court called for and perused the records
of the matter; but observed that nothing existed on record as to on what E
date the purported possession had been delivered and in relation thereto
not only no document existed but also no office note in the record disclosed
the factum of handing over the possession. It was held that :
(i) Shri Vajubha had not been in actual possession of the plot F
in question and the plot was lying open;
(ii) the name of Shri Vajubha was not entered into the lease
register nor any deed of lease was executed in his favour;
(iii) even in Regular Civil Suit No. 30 of 1990, the respondent- G.
Corporation claimed right title interest and possession in
itself;
(iv) the Panchnama date 30th July, 1996 discloses that the plot
in question was an open land and there were babul trees H
1032 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A standing on the unused plot with heaps of earth;
(v) the respondent-Corporation acted against its own interest by
passing the impugned order;
(vi) it also did not take into consideration the value of the land
B in question which was approximately one crore;
(vii) the Councillors who are holders of public offices were
bound to act as trustees of the Corporation; and
C (viii) the writ petitioners had locus standi to maintain the writ
petition.
SUBMISSIONS :
Mr. K.N. Bhat, the learned counsel appearing oA behalf of the
D appellant in assailing the judgment of the High Court would submit :
(i) The High Court committed a manifest error in passing the
impugned judgment without hearing the appellant.
(ii) As the Competent Authority for good and valid reason
E accepted the balance money and entered the name of the
respondent No. 7 in the lease register, the High Court should
not have interfered therewith.
(iii) As the writ petition does not disclose violation of any
F substantive or procedural law, nor the impugned judgment
disclosed any, it cannot be sustained.
(iv) The High Court committed a manifest error in exercising its
power of judicial review keeping in view the fact that its
jurisdiction is limited to enquire into the existence of any
G error in the decision making process and not on merit
thereof.
Mr. Sundaram, on the other hand, would submit that :
H (i) Having regard to the provisions of Section 17 of the
B.L. GOHIL v. J.M. KAMALIA [SINHA, J.) 1033
Registration Act, no title passed on to Shri Vajubha or the A
respondent no. 7 herein;
(ii) the finding of the High Court to the effect that no possession
was delivered to the highest bidder or to his successors
interest being a finding of fact, no interference therewith by B
this Court is warranted :
(iii) the applications dated 25.7. I 996 and 3 I .7. I 996 having been
rejected by the respondent-Corporation by an order dated
26.9.1996 as also by the Chairman, Standing Committee in
tenns of the report dated 30th June, 1997, the new incumbent C
of the said office could not have considered the matter afresh
in absence of any statutory power to review the said o.rders:
(iv) the applications dated 25.7.1996 and 31.7.1996, if construed
to be applications for grant of fresh lease, the provisions of D
Section 79 of the Bombay Provincial Municipal Corporation
Act, 1949 were required to be complied with, which having
not been done, the orders impugned in the writ petition are
wholly illegal and without jurisdiction.
OUR FINDINGS : E
It is not in dispute that the property in question had vested with the
respondent-Corporation. The respondent-Corporation, therefore, could
grant a lease in respect of the premise in question in terms of Section 79
of the Bombay Provincial Municipal Corporation Act, 1949 which stands F
extended to Gujarat. Section 79 of the said Act reads thus:
"with respect to the disposal of property belonging to the Corpo-
.ration other than property vestl,1g in the Corporation exclusively
for the purposes of the Transport Undertaking the following G
provisions shall have effect, namely :
(a) ***
(b) with the sanction of the Standing Committee the Commis-
sioner may dispose of by sale, letting out on hire o_r · H
1034 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A otherwise any moveable property belonging to the Corpora-
tion, of which the value dos not exceed five thousand rupees:
and may with the like sanction grant a lease of any immov-
able property belon~ing to the Corporation, including any
such right as aforesaid, for any period exceeding one year
or sell or grant a lease in perpetuity of any immovable
B
property belonging to the Corporation the value of premium
whereof does not exceed fifty thousand rupees or the
annual rental whereof does not exceed three thousand
rupees;
C (c) ***
(d) the consideration for which any immovable property or any
right belonging to the Corporation may be sold, leased or
otherwise transferred shall not ~ less than the current
market value of such premium, rent or other consideration;"
D
It stands admitted that Shri Vajubha did not deposit the entire sum
of Rs. 360. The letter dated 19.2.1952 which was issued acceding to the
request of the am:tion purchaser to the effect that he be granted three
months' time for making payment of balance sum of Rs. 90 was a
E conditional order insofar as while granting such extension, it was stipulated
therein that on failure to do the same, the allotment would be cancelled.
As order in writing could have been issued cancelling the allotment and
forfeiting the amount of Rs. 270 but once it is held that the said letter dated
19.2.1952 was a conditional one, afortiorari upon Shri Vajubha's failure
F to deposit the amount, the allotment stood cancelled.
Furthermore, it is not in dispute that for the purpose of demise of a
premise for a period exceeding one year, a registered document was
required to be executed. In absence of execution of such a registered deed,
no title could have passed in favour of the auction purchaser. The statutory.
G requirements for grant oflease must be fulfilled so as to confer a legal right
on the property upon the auction purchaser. As the statutory conditicms,
as contained in Section 79 of the Act as also Section 17 of the Indian
Registration Act, were not complied with, there cannot be any doubt
whatsoever that Shri Vajubha did not derive any title by reason of said
H auction or otherwise.
B.L. GOHIL v. J.M. KAMALIA [SINHA, J.] 10~5
This Court in The Bihar Eastern Gangetic Fishermen Co-operative A
Society Ltd. v. Sipahi Singh and Others, AIR (1977) SC 2149 in
relation to a grant made under Article 299 of the Constitution of India
observed:
"8. Re : Contention 1 : It is now well settled that the provisions B
of Article 299 of the Constitution which are mandatory in
character require that a contract made in the exercise of the
executive power of the Union or of a State must satisfy three
conditions viz. (I) it must be expressed to be made by the President
or by the Governor of the State, as the case may be; (ii) it must
be executed on behalf of the President or the Governor, as the case C
may be, and (iii) its execution must be by such person and in such
manner as the President or Governor may direct or authorise.
Failure to comply with these :.:onditions nullifies the contract and
renders it void and unenforceable. (See decisions of this Court in
State of Bihar v. Mis. Karam Chand Thapar & Brothers Ltd., D
[1962] l SCR 827 : AIR (1962) SC 110 : (l 962) 2 SCJ 17, Bikhraj
Jaipuria v. Union of India, [1962] 2 SCR 880: AIR (1962) SC
113 : (1962) 2 SCJ 479 and State of West Bengal v. Mis. B.K.
Monda! & Sons, [1962] Supp 1 SCR 876 :AIR (1962) SC 779."
E
This Court clearly held that ifthe said conditions are not fulfilled, the
question of raising any plea of estoppel would not arise. The submission
of Mr. Bhat to the effect that the orders impugned in the writ application
dated 30th July, 1997 was passed upon obtaining a legal opinion and
keeping i!l view the fact that possession had rightly or wrongly been
delivered cannot be accepted. Apart from the fact that the: reasons assigned F
by the High Court are valid and cogent, it is difficult to believe in the
peculiar facts and circumstances of the case that possession of the plot in
question had been handed over to Shri Vajubha. In the Panchnama
prepared on 30th July, 1996 it was stated :
G
"In the aforesaid plot of panchnama, thorn trees are standing and
heap of stone of waste land and heap of waste clay are· laying,
which, as stated by the holder of plot No. 2556 was laid by them.
No any kind of temporary or permanent, incomplete or matured
constructure is there in the said plot. In the surrounding of the said H
1036 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A plot, except on side of plot No. 2556, no compound wall or wire
fencing or hedge of thorn is there/placed/made."
It would be beyond anypody's imagination that a person who has
obtained possession of the plot would not use the same for any purpose
B whatsoever. Furthermore, no document showing exercise of any act of
possession or payment of ground rent has been produced.
In an:y event, the statutory authorities are bound to pass orders in
writing. If possession of the plot had been delivered, the respondent -
Corporation was boul'ld to prepare document in respect thereof wherefor
C at least a receipt was required to be obtained from the auction purchaser
showing that such possession had been delivered. If the possession had
been delivered, the date on which the same was done could have been
found out from the records of the municipal corporation. As noticed by
the High Court, rio document exists. Even no noting in the file to that effect
D has been made. Only because an Officer in one of the correspondence had
mentioned that possession had been delivered, the same, in our opinion,
as has rightly been held by the High Court, could not have been accepted
as a sacrosanct.
Furthermore, there was absolutely no reason as to why only a few
E weeks before the purported transfer made in favour of the appellants herein
the r~spondent No. 7 would file two applications praying for entering his
name in the !'ease register and showing his readiness and willingness to
deposit a sum of Rs. 90. If the contention of the said respondent was to
be accepted, he would have pleaded acquisition of title by adverse
p possession as also waiver of this aforementioned sum of Rs. 90.
It is further beyond anybody's imagination as to how despite rejection
of said applications by the respondent~Corporation as also the Chairman
of the Standing Committee by orders dated 26.9.1996 and 30.6.1997
respectively, without any fresh application as also fresh materials, the
G matter could have been again placed before the Standing Committee.
Admittedly, the Chairman of the Standing Committee does not have any
power to review the order passed by the Commissioner or his predecessor
in interest nor there exists any provision for appeal against the orders of
the Commissioner or the Corporation. The least it was expected of the
H Corporation that the n::spondent No. 7 would file a fresh application brining
B.L. GOHIL v. J.M. KAMALIA [SINHA, .T.] 1037
on records some new facts. A
The impugned order dated 30th July, 1997 is passed on a lawyer's
opinion who in turn has proceeded on the basis that possession had been
delivered to Shri Vajubha. The questions of law which had been raised in
the public interest litigation were not considered therein.
B
The basic legal premise that even a noting in the file would not confer
any right upon a person, as adumbrated by this Court in Bachhittar Singh
v. State of Punjab and Another, AIR (1963) SC 395 was not taken note.
In the instant case there does not exist even any noting, nor any other
document showing delivery of possession. c
The purported transaction effecting transfer of the prope1ty by the
respondent No. 7 in favour of the appellants for a sum of Rs. four lakhs
also is a pointer to the fact that such action was taken at the behest of the
appellants.
D
The. impugned order was preceded by a direction of the Home
Minister on 7.9.1996. A charge in the opinion came into being only upon
•
change in the holder of the office and that too within a few days. Not only
the matter had not been admittedly placed on the agenda of the meeting
dated 25.7.1997, the same was considered showing undue haste. E
In Dr. S.P. Kapoor v. State of Himachal Pradesh and Others, AIR
(1981) SC 2181, this Court held that when a thing is done in a post-haste
manner, mala fide would be presumed stating :
"33. The post-haste manner in which these things have been done F
on 3.11.1979 suggests that some higher-up was interested in
pushing through the matter hastily when the regular Secretary,
Health the Family Welfare was on leave."
It is also well-settled that if any decision is taken by a statutory G
authority at the behest or on the suggestion of a person who has no statutory
role to play, the same would be ultra vires. (See Commissioner of Police,
t Bombay v. Gordhandas Bhanji, AIR ( 1952) SC 16 and Mohinder Singh
Gill and Another v. The Chief Election Commissioner, New Delhi and
Others, (1978] 1 sec 405. H
1038 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A It is, therefore, not a case where the High Court can be said to have
committed an error in entertaining the public interest litigation. In our
opinion, it has rightly been held that by reason of the irrtpugned order,
public interest has been given a complete go-by and a valuable public
property was doled out at the behest of those who are duty bound to protect
B the same.
In Bangalore Medical Trust v. B.S. Muddappa and Others, [1991] 4
SCC 54 this Court held that an open space reserved for public park in terms
of development scheme cannot be converted into a civil amenity site for
the purpose of hospital/nursing home and allotted to a private person or
C body of persons for that purpose. Discretion, this Court pointed out; must
be exercised objectively, rationally, intelligibly, fairly and non-arbitrarily.
So far as the grievance of Mr. Bhat to the effect that the appellant
had not been given an opportunity of being heard is concerned, suffice it
D to point out that we have ourselves heard the learned counsel at great
length. Furthermore, the order impugned in the writ petition was passed
in favour of the respondent No. 7 who was present in the Court.
Furthermore, even the then authorities of the respondent No. 3 also
supported the orders impugned in the writ applications. The appellants
E herein were given notice but despite knowledge of the pendency of the writ
petition, chose not to appear before the High Court despite the same.
We, therefore, are of the opinion that as substantial justice has been
done, it is not a fit case where this Court should exercise its discretionary
jurisdiction under Article 136 of the Constitution of India.
F
This appeal is, therefore, dismissed without any order as to costs.
N.J. Appeal dismissed.
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