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TMI Blog2003 (12) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 requirements for grant of lease must be fulfilled so as to confer a legal right on the property upon the auction purchaser. As the statutory conditions, 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 auction or otherwise. In any event, the statutory authorities are bound to pass orders in writing. If possession of the plot had been delivered, the respondent - Corporation was bound to prepare document in respect thereof wherefor 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, no document exists. Even no noting in the file to that effect has been made. Only because an Officer in one of the correspondence had men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed 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 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. 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 of the respondent No. 3 to enter his name in the lease register expressing his readiness and willingness to deposit the further sum of ₹ 90. The then Home Minister of the State of Gujarat by a letter dated 7.9.1996 instructed the respondent No. 3 herein to incorporate the name of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 a sum of ₹ 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 : 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, 1952. The High Court called for and perused the records of the matter; but observed that nothing existed on record as to on what 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 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-Corporation claimed right title interest and possession in itself; (iv) the Panchnama date 30th July, 1996 disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng not been done, the orders impugned in the writ petition are wholly ill legal and without jurisdiction. OUR FINDINGS : 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 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 vesting in the Corporation exclusively for the purposes of the Transport Undertaking the following 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 or 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 belonging 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 property belonging to the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President or the Governor, as the case 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 conditions nullifies the contract and renders it void and unenforceable. (See decisions of this Court in State of Bihar v. M/s. Karam Chand Thapar Brothers Ltd., [1962] l SCR 827 : AIR (1962) SC 110 : (1962) 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. M/s. B.K. Mondal Sons, [1962] Supp l SCR 876 : AIR (1962) SC 779. This Court clearly held that if the 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 in view the fact that possession had rightly or wrongly been delivered cannot be accepted. Apart from the fact that the reasons assigned 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Corporation that the respondent No. 7 would file a fresh application brining on records some new facts. 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. 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. The purported transaction effecting transfer of the property by the respondent No. 7 in favour of the appellants for a sum of Rs. four lakhs also is a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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