Nagar Palika Parishad vs Babulal and Others

N.K. Mody, J.

Being aggrieved by the judgment and decree dated 26.10.99 passed by Additional District Judge, Sheopurkalan in Civil Appeal No. 4-A/99 whereby the judgment and decree passed in Civil Suit No. 227-A/ 88 by 3rd Civil Judge Class - II Sheopurkalan has been confirmed, the present appeal has been filed, which has been admitted by this Court on 7.2.2003 on the following substantial question of law:

Whether courts below were justified in granting decree for specific performance on oral contract ignoring the principles laid down in Section 109 and 111 of Madhya Pradesh Municipal Corporation Act, 1961 and rules made thereunder ?

Whether oral assurance from the officers of Municipal council can be enforced through court ?

The short facts of the case are that Narayanlal predecessor-in-title of the respondent filed suit for specific performance on oral contract on 15.3.1978 alleging that he was in occupation of the plot since last 25 years and was carrying his business. On 2.8.75 the then President and Vice President and Chief Municipal Officer asked to him that they want to construct Pakka Shop, therefore, he should remove his shop. It was alleged in the suit that there was assurance that after construction, shop will be given to him. It was alleged that upon assurance shop was removed. Further case of the appellant deceased Narayanlal was that on 25.8.75 vide resolution No. 78 respondent appellant resolved that the land reserved for shop shall be constructed on Nalla near the hospital and Rs. 2000/- (Rs. Two Thousand) were demanded as advance. It was also alleged that it was decided that the shop keeper who were in occupation and were removed will be entitled for shop. It was alleged that on 16.10.76 a sum of Rs. 2000/- was deposited by deceased Narayanlal. Shops were constructed but instead of allotting shop to the deceased Narayanlal near hospital the shop was allotted to him behind Library. It was alleged that deceased Narayanlal refused to take shop as it was not on main road. It was prayed that a decree for specific performance be passed to the effect that shop No. 25 or 26 below the hospital be allotted to him or any big shop be allotted.

The suit was contested by the defendants appellants. It was denied that any assurance was given by the defendants appellants. It was not disputed that an amount of Rs. 2000/- (Rs. Two Thousand) only was deposited. However, it was alleged that in the application itself deceased Narayanlal has mentioned that he is ready to take any shop whichever is allotted to him. It was prayed that suit be dismissed.

On the basis of pleadings of the parties learned trial court framed issues, recorded evidence and decreed the suit. The decree was also confirmed in appeal.

Learned counsel for the appellant submits that from the bare reading of the plaint it is clear that there is no agreement in writing between the parties. It is also submitted that the appellant has examined Gulabchand Rahi the then Chief Municipal Officer, who has specifically stated that neither any agreement had taken place nor any assurance was given. It is submitted in the application Ex. P/3 that it was mentioned by the deceased Narayanlal that any shop allotted to him shall be accepted to him. Learned counsel submits that as per Sub Section (2) (c) of Section 109 of M.P. Municipalities Act, 1961 which shall be referred hereinafter as Act no streets, lands, public places, can be leased out sell or otherwise convey any immovable property belonging to the council. It is submitted that in view of this any agreement could have been made by the appellant by way of making assurance.

Shri Ashish Saraswat, learned counsel for the appellant placed reliance on a decision in the case of Shajuddin and Others Vs. Nagar Palika Parishad and Another, , wherein this Court has held that as per Section 110 of the M.P. Municipalities Act, 1961 only the Municipal Council is competent to enter into a contract and that too in writing. It was further observed that Nagar Palika is a public body and none except the Council is competent to enter into a contract.

Further reliance has been placed on a decision of this Court in the matter of Hari Ram Vs. Nagar Palika Prashashak, , wherein this Court has held that in absence of formal agreement Municipal Council is not bound to execute sale-deed.

It is submitted that in view of the aforesaid provision of law, learned court below has committed error in granting decree in favour of the plaintiff respondent.

From the perusal of the record, it is evident that except application Ex.P/3 there is nothing on record on the basis of which it can be said that the appellant has assured in any manner to the deceased Narayanlal for allotment of a particular shop. In the application Ex.P/3 it is mentioned that shop situated at any place allotted to him is acceptable. Since there is no agreement in writing between the parties, therefore, it cannot be said that at any point of time there was any oral agreement between the parties for allotment of shop. In view of this appeal is allowed. Judgment and decree passed by the Court below is set aside.

However, it is made clear that since predecessor-in-title of respondent has deposited Rs. 2,000/- (Rs. Two Thousand) only with the appellant and if no shop is allotted then the same be refunded to the respondent along with interest at the rate of 6% per annum from the date of deposit.

With the aforesaid, this appeal allowed and judgment and decree passed by the Court below is set aside.

No order as to costs.

C.C. as per rules.