Morbi
Nagarpalika Vs. Bhavanbhai Khodabhai Patel & ANR. Etc. [2009] INSC 1536 (4
September 2009)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NOS.6053-6054 OF 2009 (Arising out of
S.L.P. (C) Nos.29342-29343 of 2008) Morbi Nagarpalika ...Appellant(s) Versus
Bhavanbhai Khodabhai Patel & Anr. Etc. ...Respondent(s) O R D E R Leave
granted.
The then
Administrator of Morbi Nagar Palika sold land measuring 158.50 sq. meter to the
respondents sometime in June, 1986. After the elected body took over the reins
of the Nagar Palika (hereinafter referred as `the appellant'), respondent No.1
was directed not to raise construction on the land in question because it was
felt that the transaction made by the then Administrator was contrary to law and
against the interest of the appellant.
Respondent
No.1 challenged the action of the appellant in R.C.S. No.301/1986 and sought a
declaration that the appellant has no right, power and authority to interfere
with his use and occupation of the land. He also prayed for grant of perpetual
injunction to restrain the appellant from interfering with his possession over
the suit land. The appellant also filed Civil Suit No.44/1988 for declaring the
sale deed executed in favour of respondent No.1 as nullity.
By common
judgment dated 28.1.2002, the trial Court decreed the suit filed by respondent
No.1 and dismissed the one filed by the appellant. Civil Appeal Nos.9/2002 and
10/2002 filed by the appellant were dismissed by Joint District Judge, Fast
Track Court No.10, Morbi vide its judgment dated 15.11.2006 The appellate
judgment was confirmed by the High Court by dismissing the second appeals
preferred by the appellant by observing that no substantial question of law is
involved therein.
We have
heard learned counsel for the parties. In our opinion, the High Court was not
justified in holding that no substantial question of law was involved in the
second appeals. A careful scrutiny of the record shows that in the appeal filed
against the judgment and decree of the trial court, the appellant had
questioned the sale effected by the then Administrator in favour of respondent
no.1 on the ground that in view of Section 263(2)(c) of the Gujarat
Municipality Act, 1963, the suit land vested in the State Government and the
Administrator had no jurisdiction to sell the same to respondent No.1 and that
too by private negotiations. The same questions were also raised before the
High Court in the second appeal filed under Section 100 of the Code of Civil
Procedure. The lower appellate Court did consider and negatived those pleas,
but the High Court did not even advert to the same and dismissed the second
appeals by making a cryptic observation that no question of law arises for
consideration.
In our
view, the following substantial questions of law were involved in the second
appeals:
...3/- -
3 - "(1) Whether the property vested in the Municipality shall, during the
period of supersession, vest in the State Government and the Administrator was
not authorized to sell the same; and, (2) Whether the Administrator could sell
the municipal property by private negotiation?"
As the
aforesaid two questions of law arise in the second appeals, we are of the view
that the matter deserves to be remanded to the High Court for fresh disposal of
the second appeals.
Accordingly,
the appeals are allowed, impugned order rendered by the High Court is set aside
and the matter is remitted to the High Court to frame the aforesaid two
substantial questions of law in the second appeals and, thereafter decide the
same.
Needless
to say that this order shall not preclude the High Court from framing any other
substantial question of law, if, in its opinion, such a question of law arises
in the second appeals.
......................J. [B.N. AGRAWAL]
......................J. [G.S. SINGHVI]
New Delhi,
September 04, 2009.
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