THE MUNICIPAL COMMITTEE, BARWALA, DISTRICT HISAR, HARYANA THROUGH ITS SECRETARY/PRESIDENT versus JAI NARAYAN AND COMPANY & ANR on 29 March 2022

[2022] 16 S.C.R. 897

THE MUNICIPAL COMMITTEE, BARWALA, DISTRICTHISAR, HARYANA THROUGH ITS SECRETARY/PRESIDENT

v.

JAI NARAYAN AND COMPANY & ANR.

(Civil Appeal No. 2222 of 2022)

MARCH 29, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Haryana Municipal Common Lands (Regulation) Act, 1974:s. 5 read with s. 10(2)(e) 2 - Haryana Municipalities Managementof Municipal Properties and State Properties Rules, 1976 – r. 2(3),2(4) – Auction sale – Inter-departmental communication and/or thenotings on the file – Relevance of – Respondent filed suit formandatory injunction to execute a sale deed on the ground that heis a bonafide purchaser on basis of the auction and is in possessionas owner of the suit land – Case of the Municipal Committee that itis unable to execute the sale deed without proper sanction of thecompetent authority-State Government – Trial court decreed in favorof the respondent – Said order upheld in the first and second appeal– In appeal before this Court, case of the Municipal Council thatthe auction conducted in which the respondent was the highest bidderwas not approved by the State Government, and that till such timethe auction is confirmed, it would not confer any equitable andlegal right to the respondent; and it would be only after the–confirmation of sale and the letter accepting the bid is issued Held: Sub-rule (ii) of r. 2(3) contemplates that no sale by auctionwould be valid until it has been confirmed by the DeputyCommissioner – Communication referred to by the respondent isnot the communication by the Deputy Commissioner to theMunicipality or to the respondent that the sale stands confirmed –It is an inter-departmental communication with no endorsement ofthe copy of the said communication to the respondent – Inter-departmental communication and/or the notings on the file are notthe decisions of the State – Thus, the letter seeking approval of theState Government by the Deputy Commissioner is not the approvalgranted by him, which could be enforced by the plaintiff in thecourt of law – Suit was not maintainable since there was no vested

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Aright with the respondent to claim such a decree merely on the basisof participation in the public auction; and even if the respondenthad any right on the basis of an auction, he could at best sue forspecific performance of the so-called agreement – Respondent wasgranted decree for mandatory injunction not only beyond the periodof limitation but also in contravention of the statute and the rulesBframed thereunder – Judgment and decree passed by the courtsbelow are set aside – Respondent is in possession, which is foundto be illegal and without the authority of law – Municipality wouldtake possession forthwith – Auction amount would stand forfeitedtowards the damages for the illegal occupation of the land for moreCthan 20 years since the date of auction in contravention of law.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 The Haryana Municipalities Management ofMunicipal Properties and State Properties Rules, 1976contemplates two acts to be completed by the DeputyDCommissioner, one of which is approval of conduct of sale whichwas granted on 25.10.1995. Thus, there is compliance as far asclause (i) of Rule 2(3) of the 1976 Rules is concerned. The otherimportant provision is sub-rule (ii) of Rule 2(3) of the 1976 Ruleswhich contemplates that no sale by auction shall be valid until itEhas been confirmed by the Deputy Commissioner. Thecommunication dated 10.1.2007 (Ex P-34) referred to by theplaintiff is not the communication by the Deputy Commissionerto the Municipality or to the plaintiff that the sale standsconfirmed. In fact, it is an inter-departmental communication withno endorsement of the copy of the said communication to theFplaintiff. Thus, the reliance of the plaintiff on the communicationdated 10.1.2007 (Ex.P/34) is not helpful to the argument raisedby him as it is the inter-departmental communication from theDeputy Commissioner to the Director, Urban Local BodyDepartment to seek approval but in the absence of any approvalGgranted, no right would accrue. [Para 10][903-C-F

1.2 The letter seeking approval of the State Governmentby the Deputy Commissioner is not the approval granted by him,which could be enforced by the plaintiff in the court of law. [Para17][908-C-D]

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MUNICIPAL COMMITTEE, BARWALA, DIST. HISAR, HARYANA THR.ITS SECRETARY/PRESIDENT v. JAI NARAYAN AND COMPANY

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1.3 The suit was not maintainable for the reason that therewas no vested right with the plaintiff to claim such a decree merelyon the basis of participation in the public auction. Secondly, evenif the plaintiff had any right on the basis of an auction, he could atbest sue for specific performance of the so-called agreement.[Para 18][908-D-E]

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1.4 The plaintiff has been granted decree for mandatoryinjunction not only beyond the period of limitation but incontravention of the statute and the rules framed thereunder.The judgment and decree passed by the courts below are setaside. The plaintiff is in possession, which is found to be illegaland without the authority of law. The Municipality shall takepossession of land forthwith and furnish compliance report withinthree months. The amount of Rs.15,76,150/- shall stand forfeitedtowards the damages for the illegal occupation of the land formore than 20 years since the date of auction in contravention oflaw. [Paras 27 and 28][912-D-E]

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Rajender Parshad & Ors. v. State of Haryana & Ors,AIR 1980 P&H 37; State of Punjab & Ors. v. MeharDin, 2022 SCC OnLine SC 250 ; Bachhittar Singh v.State of Punjab, AIR 1963 SC 395 : [1962] Suppl.SCR 713 ; Union of India v. Avtar Singh (1984) 3 SCC589 : [1984] 3 SCR 391; State of Orissa and Others v.Mesco Steels Limited and Another (2013) 4 SCC 340 :[2013] 2 SCR 245; Haryana Urban DevelopmentAuthority & Ors. v. Orchid Infrastructure DevelopersPrivate Limited (2017) 4 SCC 243: [2017] 1 SCR 847-referred to.

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Case Law Reference

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 2222of 2022.

From the Judgment and Order dated 01.05.2018 of the High Courtof Punjab and Haryana at Chandigarh in R.S.A. No.1213 of 2018.

Parveen Kumar Aggarwal, Abhishek Grover, Sanjay Jain, Advs.Bfor the Appellants.

Sanchar Anand, Anant Kumar Vatsya, Shiv Kumar, DevendraSingh, Advs. for the Respondents.

The Judgment of the Court was delivered by CHEMANT GUPTA, J.

1. The Municipal Committee, Barwala[1] is in appeal against thejudgment dated 1.5.2018, whereby its second appeal was dismissed arisingout of a suit for mandatory injunction to execute a sale deed in respectof land measuring 55 kanals 5 marlas sought by the respondent-plaintiff.

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2. The respondent-plaintiff claimed title and possession on thebasis of an open auction conducted by the Sub-Divisional Officer, Hisaron 23.3.1999 @ Rs.2,32,000/- per acre after sanction was granted forauction of the land in question on 25.10.1995. The total sale considerationcomes out to be Rs.15,76,150/- which was deposited with the MunicipalECommittee. The plaintiff thus claimed that he is a bonafide purchaserand is in possession as owner of the suit land. He deposited the remainingconsideration after adjusting an amount of Rs.4,10,000/- which wasalready deposited with the Municipal Committee.

3. The plaintiff asserts that the Municipal Committee had passedFa resolution on 1.5.2002 to get the sale deed executed and registered.Since the sale deed was not executed, the plaintiff had allegedly serveda registered notice dated 14.8.2006 which was made the cause of actionto file the civil suit for mandatory injunction on 13.6.2011.

4. In the written statement filed by the Municipal Committee, it Ghas been admitted that the property was put to auction after obtainingpermission from the Deputy Commissioner. However, the possessionof the plaintiff was said to be illegal possession. It was pleaded that theMunicipal Committee is unable to execute the sale deed without propersanction of the competent authority i.e., Government of Haryana.

H1 For short, the “Municipal Committee”

MUNICIPAL COMMITTEE, BARWALA, DIST. HISAR, HARYANA THR.ITS SECRETARY/PRESIDENT v. JAI NARAYAN AND COMPANY[HEMANT GUPTA, J.]

5. The learned trial court decreed the suit vide judgment and decreedated 9.3.2016 after giving findings on the following issues framed inview of the pleadings of the parties:

“1. Whether the plaintiff is entitled to a decree for mandatoryinjunction as prayed for?

2. Whether the suit is not maintainable due to non-joinder ofnecessary parties?

3. Whether the plaintiff has not come to the Court with cleanhand and suppressed the material facts?

4. Whether the plaintiff has no locus standi to file the presentsuit?

5. Relief.”

6. Aggrieved against the judgment and decree of the trial court,the Municipal Committee filed the first appeal which was dismissed on5.9.2016. The second appeal was also dismissed vide impugned judgmentdated 1.5.2018.

7. Before this Court, learned counsel for the appellant argued thatthe auction conducted in which the plaintiff was the highest bidder wasnot approved by the State Government. The Ex.P/34 is a communicationaddressed by the Deputy Commissioner to the Director Local Bodies toseek approval of the property put to auction. However, there was noapproval by the State Government of the auction once conducted infavor of the plaintiff. It was contended that till such time the auction isconfirmed, mere fact that the plaintiff was the highest bidder would notconfer any equitable and legal right to him. It is only after the confirmationof sale and the letter accepting the bid is issued, the plaintiff could claimany enforceable right. It was thus contended that the plaintiff is inunauthorized and illegal possession of the property. It was contendedthat the approval of sale of the property by public auction itself does notamount to confirmation of the auction, therefore, in the absence ofconfirmation of sale by the State Government, the plaintiff would not getany right over the property. It was also argued that the plaintiff in hiscounter affidavit before this Court relied upon Section 5 read with Section10(2)(e) of the Haryana Municipal Common Lands (Regulation) Act,

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A1974[2] read with Rule 2(4) of the Haryana Municipalities Managementof Municipal Properties and State Properties Rules, 1976[3], though the1974 Act has been declared unconstitutional by the Full Bench of Punjab& Haryana High Court in Rajender Parshad & Ors. v. State of Haryana& Ors.[4]. Even the First Appellate Court and Second Appellate Courthave referred to the 1974 Act while dismissing the appeals filed by theBMunicipal Committee.

8. When the appeal came up for hearing before this Court on14.3.2022, attention of the counsel for the plaintiff was drawn to the FullBench judgment of Punjab & Haryana High Court in Rajender Parshaddeclaring the 1974 Act as illegal. Therefore, vesting of land to shamilatCdeh on the strength of the aforesaid statute itself was not tenable.However, Mr. Sanchar Anand, learned counsel for the plaintiff submittedthat it is not the case that the property vested with the Municipality onthe strength of the 1974 Act. It was argued that the property was put toauction after previous approval of the Deputy Commissioner and laterDvide Ex.P/34, the sale stands confirmed. Therefore, once the plaintiffhas been found to be the highest bidder and sale has been confirmed bythe Deputy Commissioner, the plaintiff has been rightly granted decreefor mandatory injunction.

9. We have heard learned counsel for the parties and find that theEdecree passed by the three courts below, to say the least, is a perversereading of the provisions of law as well as the factual position. Rule 2 ofthe 1976 Rules has to be referred to appreciate the present dispute. Itreads as thus:

“2. Procedure for alienation. – (1) A municipal committee proposingFto alienate permanently or for a term exceeding ten years anyland or other immovable property of which it is the owner shallapply to the Deputy Commissioner for sanction.

(2) An application under sub-rule (1) shall be accompanied by aplan of the proposed property to be alienated together with aGstatement in Form A appended to these rules.

(3) The Deputy Commissioner shall record an order on theapplication, - 2 For short, the “1974 Act”

3 For short, the “1976 Rules”

H4 AIR 1980 P&H 37

MUNICIPAL COMMITTEE, BARWALA, DIST. HISAR, HARYANA THR.ITS SECRETARY/PRESIDENT v. JAI NARAYAN AND COMPANY[HEMANT GUPTA, J.]

(i) sanctioning it (subject to such conditions, if any, as he thinksfit); or

(ii) refusing to sanction it; provided that no sale by auction shallbe valid, until it has been confirmed by the Deputy Commissioner.

(4) When the Deputy Commissioner has accorded sanction to asale by auction, the Form A aforesaid shall in due course be re-submitted to him with the details regarding the auction shown inForm B. The Deputy Commissioner shall thereon either confirmthe sale or refuse to confirm it. If the Deputy Commissionerrefuses to confirm the sale, the same shall be void.”

10. The 1976 Rules contemplates two acts to be completed bythe Deputy Commissioner, one of which is approval of conduct of salewhich was granted on 25.10.1995. Thus, there is compliance as far asclause (i) of Rule 2(3) of the 1976 Rules is concerned. The other importantprovision is sub-rule (ii) of Rule 2(3) of the 1976 Rules whichcontemplates that no sale by auction shall be valid until it has beenconfirmed by the Deputy Commissioner. The communication dated10.1.2007 (Ex P-34) referred to by the plaintiff is not the communicationby the Deputy Commissioner to the Municipality or to the plaintiff thatthe sale stands confirmed. In fact, it is an inter-departmentalcommunication with no endorsement of the copy of the saidcommunication to the plaintiff. Thus, the reliance of the plaintiff on thecommunication dated 10.1.2007 (Ex.P/34) is not helpful to the argumentraised by him as it is the inter-departmental communication from theDeputy Commissioner to the Director, Urban Local Body Departmentto seek approval but in the absence of any approval granted, no rightwould accrue. The communication is inter alia to the following effect:

“3. Hence while confirming sale of Municipal Committee landmeasuring 54 Kanal & 7 Marla comprised in Khasra No. 517 and518, conducted on 23.03.1999 by open auction/bid to the maximumsuccessful bidder of this land @ Rs.2,32,000/- (Rupees Two LacsThirty Two Thousand) per acre, which has been accepted by SubDivisional Office and Head Municipal Committee Barwala, youare requested to please issue Ex-post facto approval so that thesale deed of the land in the name of the purchaser M/s Jai Narain& Company may be got done by the Municipal CorporationBarwala.”

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A11. Therefore, no concluded contract ever came into force.Reference may be made to the judgment of this Court reported asHaryana Urban Development Authority & Ors. v. OrchidInfrastructure Developers Private Limited[5], wherein this Court heldas under:

B“13. Firstly, we examine the question whether there being noconcluded contract in the absence of acceptance of bid andissuance of allotment letter, the suit could be said to be maintainablefor the declaratory relief and mandatory injunction sought by theplaintiff. The plaintiff has prayed for a declaration that rejectionof the bid was illegal. Merely by that, plaintiff could not haveCbecome entitled for consequential mandatory injunction for issuanceof formal letter of allotment. Court while exercising judicial reviewcould not have accepted the bid. The bid had never been acceptedby concerned authorities. It was not a case of cancellation of bidafter being accepted. Thus even assuming as per plaintiff’s caseDthat the Administrator was not equipped with the power and theChief Administrator had the power to accept or refuse the bid,there had been no decision by the Chief Administrator. Thus,merely by declaration that rejection of the bid by the Administratorwas illegal, the plaintiff could not have become entitled toconsequential relief of issuance of allotment letter. Thus the suit,Ein the form it was filed, was not maintainable for relief sought inview of the fact that there was no concluded contract in theabsence of allotment letter being issued to the plaintiff, whichwas a sine qua non for filing the civil suit.

14. It is a settled law that the highest bidder has no vested right toFhave the auction concluded in his favour. The Government or itsauthority could validly retain power to accept or reject the highestbid in the interest of public revenue. We are of the consideredopinion that there was no right acquired and no vested rightaccrued in favour of the plaintiff merely because his bid amountGwas highest and had deposited 10% of the bid amount. As perRegulation 6(2) of the Regulations of 1978, allotment letter has tobe issued on acceptance of the bid by the Chief Administratorand within 30 days thereof, the successful bidder has to depositanother 15% of the bid amount. In the instant case allotment letter MUNICIPAL COMMITTEE, BARWALA, DIST. HISAR, HARYANA THR.ITS SECRETARY/PRESIDENT v. JAI NARAYAN AND COMPANY[HEMANT GUPTA, J.]

has never been issued to the petitioner as per Regulation 6(2) inview of non-acceptance of the bid. Thus there was no concludedcontract....”

12. In State of Punjab & Ors. v. Mehar Din[6] this Court observedthat State or authority which can be held to be State within the meaningof Article 12 of the Constitution is not bound to accept the highest tenderof bid. It was held as under:

“18. This Court has examined right of the highest bidder at publicauctions in umpteen number of cases and it was repeatedly pointedout that the State or authority which can be held to be State withinthe meaning of Article 12 of the Constitution, is not bound to acceptthe highest tender of bid. The acceptance of the highest bid orhighest bidder is always subject to conditions of holding publicauction and the right of the highest bidder is always provisional tobe examined in the context in different conditions in which theauction has been held. In the present case, no right had accruedto the respondent even on the basis of statutory provisions asbeing contemplated under Rule 8(1)(h) of Chapter III of theScheme of Rules, 1976 and in terms of the conditions of auctionnotice notified for public auction.”

13. This Court has also considered that the inter-departmentalcommunication and/or the notings on the file are not the decisions of theState. It has been held by the Constitution Bench in a judgment reportedas Bachhittar Singh v. State of Punjab[7] that merely writing somethingon the file does not amount to an order. It was held as under:

“10. The business of State is a complicated one and has necessarilyto be conducted through the agency of a large number of officialsand authorities. The Constitution, therefore, requires and so didthe Rules of Business framed by the Rajpramukh of PEPSUprovide, that the action must be taken by the authority concernedin the name of the Rajpramukh. It is not till this formality is observedthat the action can be regarded as that of the State or here, by theRajpramukh. ................. Indeed, it is possible that after expressingone opinion about a particular matter at a particular stage a Ministeror the Council of Ministers may express quite a different opinion, 6 2022 SCC OnLine SC 250

7 AIR 1963 SC 395

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Aone which may be completely opposed to the earlier opinion. Whichof them can be regarded as the “order” of the State Government?Therefore, to make the opinion amount to a decision of theGovernment it must be communicated to the person concerned.In this connection we may quote the following from the judgmentof this Court in the State of Punjab v. Sodhi Sukhdev Singh (AIRB1961 SC 493 at page 512] :

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11. We are, therefore, of the opinion that the remarks or the orderof the Revenue Minister, PEPSU are of no avail to the appellant.”

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14. Furthermore, this Court in a judgment reported as Union ofIndia v. Avtar Singh[8] held that letter does not records the decision ofthe Central Government under Section 33 of the Displaced Persons(Compensation and Rehabilitation) Act 1954, so as to be a decision bythe Central Government. It was observed as under:

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“19. .…..Therefore the High Court was clearly in error in treatingthe letter of Shri Dube dated May 31, 1963 as a decision of theCentral Government in exercise of the power conferred by Section33. There was no reason for decision nor any occasion for theCentral Government to exercise power under Section 33 andEtherefore, it is not possible to agree with the High Court that theletter records the decision of the Central Government under Section33. If the letter of Shri Dube is not a decision of the CentralGovernment under Section 33 of the Act, as a necessary corollary,the impugned decision must be treated as one rendered for thefirst time in exercise of the revisional power under Section 33 andFtherefore, it cannot be said to be one without jurisdiction. In thisview of the matter, the appeal will have to be allowed.”

15. In a judgment reported as State of Orissa and Others v.Mesco Steels Limited and Another[9], this Court held that the High Courtwas in error in proceeding on an assumption that a final decision hadGbeen taken and in quashing what was no more than an inter-departmentalcommunication constituting at best a step in the process of taking a finaldecision by the Government. It was held as under:

8 (1984) 3 SCC 589H9 (2013) 4 SCC 340

MUNICIPAL COMMITTEE, BARWALA, DIST. HISAR, HARYANA THR.ITS SECRETARY/PRESIDENT v. JAI NARAYAN AND COMPANY[HEMANT GUPTA, J.]

“20. On the contrary, the issue of the show cause notice settingout the reasons that impelled the Government to claim resumptionof a part of the proposed lease area from the respondent-companyclearly suggested that the entire process leading up to the issue ofthe show cause notice was tentative and no final decision on thesubject had been taken at any level. It is only after the Governmentprovisionally decided to resume the area in part or full that a showcause notice could have been issued. To put the matter beyondany pale of controversy, Mr. Lalit made an unequivocal statementat the bar on behalf of the State Government that no final decisionregarding resumption of any part of the lease area has been takenby the State Government so far and all that had transpired till datemust necessarily be taken as provisional. Such being the casethe High Court was in error in proceeding on an assumptionthat a final decision had been taken and in quashing whatwas no more than an inter-departmental communicationconstituting at best a step in the process of taking a finaldecision by the Government. The writ petition in that viewwas pre-mature and ought to have been disposed of as such.Our answer to question No. 1 is accordingly in the affirmative.”

16. This Court in a judgment reported as State of Uttaranchal v.Sunil Kumar Vaish[10]held that a noting recorded in the file is merely anoting simpliciter and nothing more. It merely represents expression ofopinion by the particular individual. By no stretch of imagination, suchnoting can be treated as a decision of the Government. It was held asunder:

“24. A noting recorded in the file is merely a noting simpliciter andnothing more. It merely represents expression of opinion by theparticular individual. By no stretch of imagination, such notingcan be treated as a decision of the Government. Even if thecompetent authority records its opinion in the file on the merits ofthe matter under consideration, the same cannot be termed as adecision of the Government unless it is sanctified and acted uponby issuing an order in accordance with Articles 77(1) and (2) orArticles 166(1) and (2). The noting in the file or even a decisiongets culminated into an order affecting right of the parties only A

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Awhen it is expressed in the name of the President or the Governor,as the case may be, and authenticated in the manner provided inArticle 77(2) or Article 166(2). A noting or even a decision recordedin the file can always be reviewed/reversed/overruled oroverturned and the court cannot take cognizance of the earliernoting or decision for exercise of the power of judicial review.B(See State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493,Bachhittar Singh v. State of Punjab AIR 1963 SC 395, State ofBihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan HousingBoard v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Stationv. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union ofCIndia (2009) 15 SCC 705).”

17. Thus, the letter seeking approval of the State Government bythe Deputy Commissioner is not the approval granted by him, whichcould be enforced by the plaintiff in the court of law.

18. The suit was not maintainable for the reason that there wasDno vested right with the plaintiff to claim such a decree merely on thebasis of a participation in the public auction. Secondly, even if the plaintiffhad any right on the basis of an auction, he could at best sue for specificperformance of the so-called agreement. In Orchid, the plaintiff hadsought decree of declaration and of consequential mandatory injunction.EThis Court held that such suit was not maintainable as no concludedcontract came into existence by merely submitting the highest bid. Inthese circumstances, suit for mandatory injunction was not maintainable.

19. It is to be noted that though the plaintiff had served a notice on14.9.2006, but still the suit was filed in the year 2011 in respect of theFauction conducted in the year 1999. The suit for mandatory injunctionwas filed on or after 13.6.2011, i.e., more than 12 years after the auctionwas conducted on 23.3.1999. Therefore, even the suit for specificperformance was barred by limitation as such suit, even if maintainable,could be filed within three years of the auction being conducted in termsof Article 54 of the Schedule to the Limitation Act, 1963. The suit forGinjunction was filed beyond the period of limitation and was not properlyconstituted. The courts have not examined such aspect as was expectedto examine legally.

20. Section 61 of the 1973 Act deals with vesting of the propertywith the Municipal Committee and how the property can be utilized.HSections 61 and 62 read thus:

MUNICIPAL COMMITTEE, BARWALA, DIST. HISAR, HARYANA THR.ITS SECRETARY/PRESIDENT v. JAI NARAYAN AND COMPANY[HEMANT GUPTA, J.]

“61. Property vested in committee.—(1) Subject to any specialreservation made or to any special conditions imposed by the StateGovernment, all property of the nature hereinafter in this sectionspecified and situated within the municipality, shall vest in and beunder the control of the committee, and with all other propertywhich has already vested or may here after vest in the committee,shall be held and applied by it for the purposes of this Act, that isto say,—

(a) all public town-walls, gates, markets, stalls, slaughter houses,manure and night-soil depots and public buildings of everydescription which have been constructed or are maintained out ofthe municipal fund; (b) all public streams, springs and works for the supply, storageand distribution of water for public purposes, and all bridges,buildings, engines, materials and things connected therewith orappertaining thereto, and also any adjacent land, not being privateproperty appertaining, to any public tank or well;

(c) all public sewers and drains, and all sewers, drains, culvertsand water-courses in or under any public street or constructed byor for the committee alongside any public Street, and all works,materials and things appertaining thereto; (d) all dust, dirt, dung, ashes, refuse, animal matter or filth orrubbish of any kind or dead bodies of animals collected by thecommittee from the streets, houses, privies, sewers, cesspools orelsewhere or deposited in places fixed by the committee undersection 152; (e) all public lamps, lamp-posts, and apparatus connected therewithor appertaining thereto; (f) all land or other property transferred to the committee by theState Government or acquired by gift, purchase or otherwise forlocal public purposes; (g) all public streets, not being land owned by the StateGovernment, and the payments, stones and other materials thereof,and also trees growing on, and erections, materials, implements,and things provided for, such streets; A

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A(h) Shamlat Deh.

(2) Where any immovable property is transferred otherwise thanby the sale by the State Government to a committee for publicpurposes, it shall be deemed to be a condition of such transfer,unless specially provided to the contrary, that should the propertyBbe at any resumed by the State Government the compensationpayable therefor shall, notwithstanding anything to the contrary inthe Land Acquisition Act, 1894, in no case exceed the amount, ifany, paid to the State Government for the transfer together withthe cost or the present value, whichever shall be less of anybuildings erected or other works executed on the land by theCcommittee.

62. Inventory and map of municipal property.—(1) The committeeshall maintain an inventory and a map of, all immovable propertyof which the committee is proprietor, or which vests in it or whichit holds in trust for the State Government.

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(2) The copies of such inventory and map shall be deposited inthe office of the Deputy Commissioner and such other officer orauthority as the State Government may direct and all changes,made therein shall forth with be communicated to the DeputyCommissioner or other officer or authority.”

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21. Clause 61(1)(h) of the 1973 Act is the subject matter ofchallenge in another appeal before this Court whereas clauses (a) to (g)except clause (f) deal with the public utility services. The clause (f)deals with, “the land or other property transferred to the Committeeby the State Government or acquired by gift, purchase or otherwiseFcan be utilised only for local public purposes.”

22. In terms of Section 62 of the 1973 Act, the Municipal Committeeis required to maintain an inventory and map of all immovable propertyof which the Committee is the proprietor or which vests in it or which itholds in trust for the State Government. In the absence of nature of landGas to whether it is a land owned by the Municipality and is not vestedwith the Municipality in terms of Section 61 of the Act, no direction bythe courts could have been granted. It has not come on record as towhether such land was vesting with the Municipal Committee or that itwas not mentioned in the list of inventories of the properties of Municipal H

MUNICIPAL COMMITTEE, BARWALA, DIST. HISAR, HARYANA THR.ITS SECRETARY/PRESIDENT v. JAI NARAYAN AND COMPANY[HEMANT GUPTA, J.]

Committee. We find that Municipal Committee was remiss in defendingits property as a custodian of public property.

23. Section 245 of the 1973 Act falling in Chapter XII (Control)empowers the Deputy Commissioner or any other officer not below therank of Assistant Commissioner by a general or special order to carryout the functions assigned therein. The Deputy Commissioner has apower to suspend any resolution or order of Committee under Section246. Any action taken by the Deputy Commissioner under Sections246, 247 or 248 of the 1973 Act is to be reported to the Commissioner.

24. Section 250 of the 1973 Act confers power with the StateGovernment to issue directions for carrying out the purposes of the Act.The said provision reads thus:

“250. Power of State Government to give directions.—The StateGovernment may issue directions to any committee for carryingout the purposes of this Act and in particular with regard to—

(a) various uses to which any land within a municipal are may beput; (b) repayment of debts and discharging of obligations;

(c) collection of taxes;

(d) observance of rules and bye-laws;

(e) adoption of development measures and measures for promotionof public safety, health, convenience and welfare; (f) sanitation and cleanliness; (g) establishment and maintenance of fire-brigade.”

25. It is in pursuance of the powers conferred on the StateGovernment, a message was conveyed on 12.9.1994 on behalf of theDirector, Local Bodies, Haryana to all the Deputy Commissioners of theState of Haryana that no municipal property will be sold without theprior approval of the Government. The learned trial court has discardedsuch communication for the reason that such communication has notbeen proved as per the provisions of the Indian Evidence Act, 1872. Itmay be stated that the State or the Deputy Commissioner was notimpleaded as a party to the civil suit filed. In fact, the objection raisedwas that the State has not been impleaded as a party. Such communication AB

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Ahas been produced by the Municipal Committee when the Committeeexamined Shri Mahavir Singh, Secretary as DW-1 and Shri SandeepKumar, Building Inspector as DW-2. Such communication has come onrecord from the official source which would carry presumption ofcorrectness under Section 114 of the Indian Evidence Act, 1872 that theofficial acts have been regularly performed. The original record wasBnot necessarily required to be proved by summoning the Governmentofficials as such document was produced by the officials of the MunicipalCommittee from the official record.

26. Thus, since direction issued by the State Government is interms of Section 250 of the 1973 Act, the Deputy Commissioner wasCbound to seek approval of the State Government. The binding nature ofsuch instructions is evident from the fact that the Deputy Commissionerhas sought approval from the State Government when a communicationto this effect was addressed on 10.1.2007.

27. In view of the above, we find that the plaintiff has been grantedDdecree for mandatory injunction not only beyond the period of limitationbut in contravention of the statute and the rules framed thereunder.

28. Consequently, the appeal is allowed. The judgment and decreepassed by the courts below are set aside. The plaintiff is in possession,which is found to be illegal and without the authority of law. TheEMunicipality shall take possession of land forthwith and furnishcompliance report within three months. The amount of Rs.15,76,150/-shall stand forfeited towards the damages for the illegal occupation ofthe land for more than 20 years since the date of auction in contraventionof law.

F

Nidhi Jain and Amarendra Kumar

Appeal allowed.

G

H