Sanna Hutchamma vs State of Karnataka and Others

Rama Jots, J.—This writ appeal is presented by the appellant against, the order of the learned single Judge dismissing her writ petition in which she had challenged the order of the State Government confirming the order of the Deputy Commissioner made under S. 306 of the Karnataka Municipalities Act, 1964 (the Act for short) suspending the resolution of the Town Municipal Council, Turuvekere, dated 30-4-1957 by which a site was granted in favor of one T.K.Siddppa who sold the same in the year 1961 to the appellant.

The facts of the case in brief are as follows : --

A site measuring 12'' X 95'' was granted to one Didapper by the resolution of the T.M.C., Turuvekere on 30-4-1957 at the rate of four annas (25 pause) per square yard (vide Annexure-A). Pursuant to the resolution, the value of the site payable by the said Didapper was calculated at Rest. 37/1- and the said amount was remitted to the T.M.C., Turuvekere by T. K. Didapper, (Annexure B). The chat of the site was also changed in -the name of T. K. Didapper on 3-11-1957. Since then the said Didapper had been paying tax in respect of the said site and the adjacent house to the T.M.C.

By a registered sale deed dated 18-121961, the said T. K. Didapper sold his house together with the vacant site aforesaid for a sum of Rest. 2,500/- to the appellant. Thereafter, the chat in respect of this property was changed in favor of the appellant. A building was also constructed on the said site by the appellant after securing the license by the T.M.C. After all this, in the year 1971, respondent 4 made a petition to the Deputy Commissioner, Tumkur District, Tucker, requesting him to suspend the resolution of the T.M.C., dated 30-4-1957 granting the site in favor of T. K. Didapper. The Deputy Commissioner, being of the opinion that the grant of the site in favor of T. K. Didapper by the T.M.C., Turuvekere, was in contravention of law, passed an order suspending the resolution in exercise of the powers under S. 306 of the Act which came .into force on 1-4-1965 (about 8 years after the site was granted) and in terms of sub-sec. (2) of S. 306 he made a report to the Government. the Government confirmed the order of the Deputy Commissioner by its order dated 13-10-1976. It also directed that this site and another site which is said to have been disposed of by the same resolution, should be sold in public auction. The legality of the said order was challenged by the appellant in the writ petition.

The learned Judge was of the view that as the disposal of the site by the Municipal Council was in contravention of S. 38(2 ) of the Town Municipalities Act, 1951 which was then in force, suspension of the resolution under S. 306 of the Act, which was similar to S. 199 of the 1951 Act, was valid and accordingly he dismissed the writ petition. Aggrieved by the said order, the appellant has presented this writ appeal.

The plea of the appellant is as follows : -

The appellant is a bona fide purchaser for value of the property in question, the site had been granted by the Municipal Council at the rate of four annals per square yard in the year 1957. The total value of the site was only Rest. 37/-. The grantee T. K. Didapper had remitted the said amount and thereafter his name was entered as khaddar in the relevant register of the Municipal Council. Tax had been collected. He was put in possession of the site. Thereafter, the appellant purchased the said property in the year 1961 along with the adjacent house and thereafter the chat was changed to her name, and she also constructed a house after securing license from the Municipal Council. The transfer of the site was not in contravention of S. 38(2) of the Act of 1951.

As the value of the site granted in favor of T. K. Didapper was less than Rest. 2000/- no sanction of the Government was necessary as provided under S. 38(2) of the Act of 19.51 and no registration was also necessary for the reason that the value of the site was less than Rest. 100/-.

In any event, the power conferred either under S. 199 of the 1951 Act or under S. 306 of the Act of 1964 was a power to suspend the execution of a resolution when it was about to be implemented, therefore, when the resolution of the T.M.C., Turuvekere, had been implemented as early as in 1957, there was nothing to suspend after 14 years and, therefore, the order of the Deputy Commissioner suspending the resolution and the order of the Government confirming the order of the Deputy Commissioner were outside the purview of S. 199 of the 19.51 Act and S. 306 of the 1964 Act.

Further though S. 199 of the 1931 Act or S. 306 of the 1964 Act does not prescribe any period within which the power can be exercised, it must be exercised within a reasonable time. The power cannot be exercised after a long lapse of time when the parties have proceeded on the basis that the resolution of the Municipal Council was lawful and acted upon such resolution as in the present case particularly after the building has been constructed oil the site after securing the license from the Municipal Council.

In our view, the appellant has to succeed on the last submission made on her behalf. The power conferred under S. 199 of the Act of 1951 and under S. 306 of the Act of 1964 is to suspend the execution of a resolution of a Municipal Council which means that it should not be permitted to be implemented. In the nature of things, it is an emergency power conferred on the authorities to prevent the local authorities functioning under the Act from exceeding their powers. Therefore, if in a case a resolution has already been implemented, the power of suspension cannot be exercised at all. The question whether a resolution has already been implemented is, however, a question of fact. As far as this case is concerned, there can be no doubt at all for, the reason that after the Municipal Council passed. the resolution on 30-4-1957, the grantee deposited the value of the site on 15-3-1957, and the chat -was changed to his name on 3-11-1957 and he continued to pail the tax on the basis that he had become tile owner''s of the property and he sold the property for valuable consideration by I registered sale deed dated 18-12-1961 anew, thereafter the appellant''s name was entered as Khatedar respect of the site in question on the basis of the aforesaid sale deed and she secured the license and has constructe6 the house, the photograph of which produced at Annexure-G. In fact, in the impugned order itself, the Government bas stated that the house has already been, constructed. Therefore, in our pinhole there was nothing to suspend as the! resolution had been fully implemented more than 12 years before the date on which Deputy commissioner purported to exercise powers under S. 306 of the Act, though) several Deputy Commissioners, who had been m-charge of the District. during the long period had not thought fit to exercise the powers under S. 199 of the 1951, Act o-,., under S. 306 of the 1964 Act.

The last submission of the appellant that the powers must be exercised within a reasonable fine is also well founded. In the nature of things, the power conferred under S. 199 of 1951 Act and tinder S. 306 of the Act are intended to be exercised within a reasonable time so as to prevent a municipal Council from implementing its order or resolution. No doubt, there is no period of limitation fixed under Ss. 199 and 306. But having regard to the very nature of the power conferred, it has got to be exercised within a reasonable time. Otherwise, if the power were to be exercised after long lapse of time, it might result in manifest injustice to the party concerned as has happened in, this case. In this behalf, the ratio of the judgment of the Supreme Court in the case of The State of Gujarat Vs. Patil Raghav Natha and Others, in the context of the exercise of power of revision under S. 65 of the Bombay Land Revenue Code is apposite to this case. The relevant portion of the judgment reads

"The question arises whether the Commissioner can revise an order made S. 65 at any time. It is true that there is no period of limitation prescribed under S. 211, but it seems to us plain that this power nuts be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised."

As held by the Supreme Court in the above case, though the power of revision was conferred on the authority without, specifying any period of limitation, it must be exercised within a reasonable time. Having regard to the nature of the power conferred. under S. 199 of the 1951 Act and S. 306 of the law Act, the said principle applies to this case with greater force as it is a power to suspend a resolution of a Municipal Council viand prevent its implementation. In the present case, the power was exercised under corresponding provision of the new Act after 14 years after the date of grant and after the grant was implemented and the house was constructed. Therefore, the impugned orders were manifestly unjust and unreasonable.

There is also force in the contention of the appellant that as the value of the site in a small Talk place like Turuvekere was not much in the year 1957, the Municipal Council considered that it was not necessary to secure the approval to the Government before granting, it and further as the value was less than Rs.100/- registration was not com-pulsar. However ,it is unnecessary to express any definite opinion about these questions for the reason that the power of suspension under S. 306 of the Act could not have been exercised at this distance time and after the resolution had been implemented.

In the result, we make the following

ORDER

The writ appeal is allowed. In reversal of the order of the learned single Judge, the writ petition is allowed. The order of the State Government dated 13th Oct., 1976 (Annexure-H) and the order of the Deputy Commissioner dated 16-7-1973 are set aside. No costs.

Appeal allowed.