Gopal Sodani vs Municipal Council, Manasa

The petitioner has filed the present petition being aggrieved by resolution dated 18.9.2017 and order dated 1.3.2018 passed by Chief Municipal

Officerf, Municipal Council, Manasa, District Neemuch.

Facts of the case, in short, are that the Municipal Council, Manasa allotted shop No.1 situated at Ground Floor of the building constructed by

Municipal Council, Manasa, to one Ramesh Samdani after due auction proceedings held in the year 1965-66. A registered lease-deed was executed

between them. Thereafter, by an agreement dated 30.10.1978, Ramesh Samdani gave half Southern part of the shop to Arjun Samdani. Later on, a

written agreement was also executed between them on 24.2.1985. In pursuant to the aforesaid agreement, Arjun Samdani applied for transfer of the

said half portion of the shop and consequently, a lease-deed dated 10.4.1989 was executed in favour of Arjun Samdani in respect of said half portion

of shop No.1 by Municipal Council. The Chief Municipal Officer vide Certificate dated 1.12.1999 has certified that the name of Arjun Samdani has

been mutated in the record.

According to the petitioner, Arjun Samdani has sold leasehold rights of the said shop to him and thereafter, he filed an application dated 3.7.2014

before the respondent. The application of the petitioner was considered by the Municipal Council and vide Resolution No.1038 dated 22.7.2014 it was

decided to mutate the said shop No.2 in the name of the petitioner in the Municipal record. Later on, the respondent Council decided to reconstruct the

entire building, therefore, notice was issued to the present petitioner to vacate the shop in question. The petitioner has agreed to vacate the shop and

an agreement dated 17.8.2016 to the said effect was executed between the petitioner and Municipal Council with a condition that after reconstruction

of the building, the possession of one shop will be handed over to him within 15 months. Said agreement was also got registered by the petitioner.

Ramesh Samdani approached the Collector u/s. 323 of the M.P. Municipalities Act, 1961 alleging that the respondent Municipal Council has

wrongly passed the resolution in favour of the present petitioner in respect of half portion of shop No.1 and prayed for setting aside the allotment made

in favour of Arjun as well as allotment in favour of present petitioner. The Collector vide order dated 18.4.2017 came to the conclusion that he is not

having any authority u/s. 323 of the Act of 1961, but directed the Chief Municipal Officer to conduct an enquiry and place the matter before the

Municipal Council and if it is found that the mutation is illegal, then the proceedings for cancellation of allotment be initiated.

On the basis of order of the Collector, the Municipal Council considered the entire matter in its meeting held on 22.12.2017 and found that the shop

in question was never allotted to Arjun Samdani, therefore, he had no right to sale the rights to the present petitioner, hence the allotment in favour of

the present petitioner is also illegal. On the basis of said resolution, vide order dated 1.3.2018, the allotment in favour of the petitioner has been

cancelled. Hence, the present petition before this Court.

After notice, the respondent filed the return by raising a preliminary objection that the writ petition suffers from mis-joinder of parties as Ramesh

Samdani is a necessary party and behind his back, no order can be passed by this Court. The petitioner is having an alternate remedy against the

Resolution dated 22.12.2017. On merit, it is submitted that the shop in question was given on lease to Ramesh Samdani by way of auction proceedings

and as per the terms and conditions of the lease-deed, he had no right or authority to transfer the same without permission of the Municipal Council.

The shop in question was given on rental basis to Ramesh Samdani who has wrongly sub-letted to Arjun Samdani, who later on sold the same to the

present petitioner. Under M.P. Municipalities (Transfer of Immovable Properties) Rules, 1966, no immovable property of the Municipal Council can

be transferred, leased out or sold except to the highest bidder in a public auction. Ramesh Samdani has already filed a civil suit, which is pending for

adjudication, in which the present petitioner is also a party, hence no interference is called for by this Court and the petition is liable to be dismissed.

I have heard Shri A.K. Sethi, learned senior counsel appearing for the petitioner, and Ms. Archana Kher, learned counsel appearing for the

respondent at length and perused the material available on record.

The respondent, Municipal Council, Manasa issued an advertisement dated 24.3.1969 for grant of Shop No.1 to 4 on lease up to 31.3.1972 by way

of auction. Ramesh Samdani was declared as a successful bidder and the shop No.1 was given to him on lease. Thereafter, he gave half portion of

the said shop to Arjun Samdani and an agreement to the said effect was executed. He also gave consent for mutation in the name of Arjun Samdani.

A registered agreement dated 10.4.1989 was executed between Arjun Samdani and respondent Municipal Council in respect of half portion of the

shop No.1. Thereafter, Arjun Samdani has sold the same to the present petitioner, who applied for mutation. The petitioner applied for recording his

name as a tenant. Vide order dated 22.7.2014, the Chief Municipal Officer has granted permission to record the name of the petitioner as a tenant and

the petitioner was permitted to occupy the shop in question as a tenant. Vide agreement dated 17.8.2016, the petitioner handed over the possession of

the shop in question to the respondent Municipal Council. In the said agreement it is specifically mentioned that the proceedings are being undertaken

under the Amended Property Transfer Rules of 1966. The petitioner was granted right of re-entry and bear the construction cost @ 15%. Later on,

Ramesh Samdani made a complaint to the Collector and the Collector has found that he cannot pass any order u/s. 323 of the Act of 1961, however,

he directed the Chief Municipal Officer to take action in respect of cancellation of the resolution in favour of the petitioner. The order of the Collector

was placed before the Municipal Council in the meeting held on 22.12.2017 and the Municipal Council recorded virtually the same finding as was

given by the Collector and allotment of shop in question was found in favour of Ramesh Samdani. But till today, no order has been passed in favour of

Ramesh Samdani by Municipal Council.

The petitioner alone is not solely responsible for all these developments, but the respondent Municipal Council is also equally responsible. Initially,

the respondent Municipal Council permitted Arjun Samdani to continue in possession and thereafter permitted the present petitioner to occupy the shop

in question as a tenant. The name of petitioner was recorded as a tenant and an agreement also executed with him and he was given the right of re-

entry alone.

Ramesh Samdani has already filed the civil Suit against the respondent Municipal Council, Arjun Samdani and the present petitioner and the said

civil suit is still pending before the Civil Judge, Class-II, Manasa, District Neemuch. He has sought decree of declaration in respect of the shop in

question. The relief claimedi n the civil suit is reproduced below :

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2-- ;g ?kksf""krfd;ktkosfdoknhx.kviuhiwoZnqdku ds fookfnrvk/ksHkkxdksokfilizkIrdjus ds vf/kdkjhgSA

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4- oknhx.k dk okn O; izfroknhx.k ls fnyk;ktk;sA

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In the aforesaid civil suit, Ramesh Samdani is seeking declaration to the effect that resolution dated 17.7.2014, 22.7.2014 in favour of the present

petitioner are illegal and void. He has also sought possession and permanent injunction against defendant No.1 in respect of future allotment. The

respondent Municipal Council has also filed the written statement in the said suit.

Against the resolution passed by the Municipal Council, the petitioner is not having remedy of appeal under the Act of 1961. The only remedy

available to the present petitioner is to file a civil suit or a writ petition before this Court. Since the petitioner has not impleaded Ramesh Samdani and

Arjun Samdani in this petition, therefore, no relief can be granted to him. The petitioner is already one of the defendant in the suit filed by Ramesh

Samdani in which he is seeking declaration that the resolution passed in favour of the present petitioner is illegal and void, though it has been cancelled

by the impugned resolution.

As stated above, the conduct of the respondent Municipal Council is also required to be examined because the Municipal Council had approved the

induction of ArjunSamdani as well as the present petitioner by way of the resolution and the disputed questions of facts are involved in this case. The

execution and validity of agreement dated 17.8.2016 between the petitioner and the Municipal Council is also involved. Since one civil suit has already

been filed and the same is pending, therefore, all the issues involved in this petition are liable to be decided in the said civil suit.

In the given facts and circumstances of the case, as narrated above, the petition deserves to be and is hereby allowed. The impugned resolution

passed by the respondent Municipal Council, Manasa, District Neemuch dated 22.12.2017 so also the impugned order dated 1.3.2018 passed by the

Chief Municipal Officer, Municipal Council, Manasa, District Neemuch are hereby made subject matter of pending Civil Suit. Parties in the Civil Suit

are permitted to amend their pleadings and the trial Court is also permitted to add or reframe the issues to do the complete justice between the parties.

At this stage, Shri Sethi, learned senior counsel appearing for the petitioner, submits that the respondent Municipal Council has reconstructed the

building and shops and as per agreement dated 17.8.2017 and 22.7.2014, the petitioner is entitled to have a right of re-entry and to get the possession

of the shop in question.

Ms. Kher, learned counsel appearing for respondent, opposed the prayer by submitting that the construction of the building has not been completed

so far and the petitioner is not entitled to obtain possession in view of the Amended Rules of 1966.

In the considered opinion of this Court, let the Civil Court decide the issue as to who is entitled to obtain possession during pendency of the civil

suit so that the respondent Municipal Council may not suffer revenue loss.

In view of the foregoing, this petition stands partly allowed to the extent indicated above.

 No order as to costs.