Judgment:
K. Sreedhar Rao, J.
History of the litigation:
1. These appeals are filed against the judgment and decree passed in R.S.A. No. 2 of 2000 on the file of Civil Judge (Senior Division), Ranebennur arising out of the judgment and decree passed in O.S. No. 17 of 1983 on the file of First Additional Munsiff Ranebennur. The appellant in R.S.A. No. 425 of 2003 is the second defendant in the suit. The appellant in R.S.A. No. 569 of 2003 is the first defendant in the suit. The first respondent is the plaintiff who filed the suit for a declaration that the resolution No. 200, dated 23-10-1978 and resolution No. 111, dated 29-2-1980 are null and void, not binding on the plaintiffs and to declare that resolution No. 172, dated 8-9-1973 is valid and to seek delivery of possession of plot No. 38(a) from the first defendant-municipality which is said to be in occupation of defendant 2 at the time of the suit.
2. The municipal council offered non-residential plots to the public for construction of the tenements on lease basis for a period of 5 years. According to the terms of the offer, the allottee of the plot has to bear the construction cost of the tenement and for the first 5 years period there is no rent. The value towards the construction cost serves as consideration for the occupation of the premises for the first 5 years. Thereafter, the property is to be leased carrying monthly rents. The plaintiff claims that he was allotted plot No. 38(a) and defendant 2 allotted plot No. 38(b). Under resolution No. 172, dated 8-9-1973, the plaintiff is said to have deposited Rs. 11,000/- which fully meets the cost of construction as per the terms of the tender. It is the case of the plaintiff that the municipality dishonestly changed the identity of original plot No. 38(a) by re-description as 38(b) and vice versa and thus dishonestly allotted most advantageous corner site tenement in favour of the 2nd defendant by describing it as 38(b). In fact the said site is originally 38(a) to be allotted to the plaintiff. Therefore, he contends that the resolutions passed by the municipality allotting site No. 38(a) described as 38(b) is illegal and not binding. The suit plot No. 38(a) bearing the boundaries described as in the suit schedule to be allotted to the plaintiff.
3. The first defendant has stoutly denied the case of the plaintiff and submits that under the terms the total cost of construction was not assessed and payment of additional value of construction cost was subject to escalation and variation in rates. Therefore, notice was issued to the plaintiff to make good Rs. 800/- under Ex. D. 2 towards additional cost of construction. The same was not paid. Therefore, the plaintiff has no right to seek allotment. The first defendant also submits that plot No. 38(a) was not occupied by the plaintiff to avoid unnecessary vacancy. For the first five years it is allotted to the third defendant and thereafter to the 4th defendant. The said allotment came to be made on account of the default on the part of the plaintiff. The allegation that the identity of the plots have been tampered with and interchanged is denied. It is also contended that the suit is bad for want of notice under Section 284 of the Karnataka Municipalities Act. Besides plea of res judicata and plea of limitation is taken.
4. The 2nd defendant has contested the suit denying the plaint allegations and deny the allegation of collusion with the municipal authorities to secure the disputed plot and claims that the allotment to him is a valid allotment.
5. The plaintiff earlier had filed a suit in O.S. No. 154 of 1978 in respect of the same subject-matter. The suit came to be withdrawn with a liberty to file a fresh suit on the same subject-matter. Accordingly, the present suit was filed. In the instant case, the Trial Court on a preliminary issue regarding limitation holds that the suit is barred by time and dismissed the suit. The decree was confirmed in the first appeal in R.S.A. No. 12 of 1993 and in R.S.A. No. 3 of 1987 the judgment and decree was set aside, the matter is remanded with a direction to the Trial Court to consider the other material additional issues framed in the suit. Accordingly, in the second round of trial the oral evidence of the parties recorded and documentary evidence adduced.
Findings of the Courts below:
6. On consideration of the facts and material the Trial Court holds that the earlier suit filed by the plaintiff in O.S. No. 154 of 1978 offers sufficient notice under Section 284. Therefore, rejects the contention that the suit is bad for want of notice under Section 284 of the Act the Trial Court holds that in the cross-examination of D.W. 1 there is an admission regarding the boundaries of plot Nos. 38(a) and 38(b) and further the first defendant failed to produce the original lay out plan and the plan one produced pursuant to interrogatories under Order 11, Rule 14 was held to be not a genuine one prepared at the earliest point of time in the year 1972. The Court also holds that the plan produced by the municipality by defendant 1 appears to be a concocted one to suit the current needs and to cover up their lapses. The Court further holds that the total value of construction as notified by the defendant 1 was Rs. 9,000/- and odd, whereas the plaintiff had deposited a total sum of Rs. 11,000/-. Therefore, the additional amount of Rs. 800/- demanded is fully covered by the deposit of Rs. 11,000/- made much earlier to the demand. As such the contention of the first defendant that there is a default on the part of the plaintiff in paying the value of the construction is held to be untenable. For the foregoing reasons, the Trial Court allowed the suit directed the defendants 1 and 2 to deliver possession of the suit property.
7. Defendants 1 and 2 filed separate appeals before the first Appellate Court. The Appellate Court upheld the judgment and decree of the Trial Court confirmed the findings therein and dismissed the appeals. Hence, these second appeals are filed.
8. The case at the stage of admission, the lower Court records are secured. Both parties consented and argued the case on merits for final disposal.
My view:
9. The following substantial questions of law arise for consideration:
1. Whether the findings of the Trial Court that the proceedings in the earlier suit in O.S. No. 154 of 1978 constitutes sufficient notice under Section 284 is perverse and contrary to law?
2. Whether the Appellate Court committed error in holding that the plaintiff is entitled to the relief of possession in respect of the suit schedule properties with the boundaries as described in the suit schedule is perverse and contrary to the evidence on record?
10. Question of law 1.--Suit O.S. No. 154 of 1978 filed by the plaintiff earlier against the same parties came to be withdrawn. Ex. P. 8 is the order sheet. The full cause title of the suit is not furnished in Ex. P. 8. What was the subject-matter and what was the relief sought is not forth coming from Ex, P. 8. However, the fact that for the same subject-matter the suit was filed in O.S. No. 154 of 1978 is not disputed. Therefore, it could be accepted that the present suit is filed after obtaining necessary permission under Order 23, Rule 1. But, however, what was the formal defect in the earlier suit is not forth coming from Ex. P. 8. The cause title shows that President of Ranebennur Municipal Council by his name and others were made as parties. Ex. P. 8 does not show whether the Chief Officer of the municipality was also a party to the proceedings. Under the Karnataka Municipalities Act no proceedings can be launched against the elected municipal council and its office-bearers. Legal proceedings have to be launched only against the Commissioner or Chief Officer. In the first place, the contention that filing of a earlier suit in O.S. No. 154 of 1978 serves as sufficient notice under Section 284 is untenable. Instituting judicial proceedings by way of suit cannot constitute notice under Section 284. It is incumbent upon the plaintiff to issue a separate notice as required under Section 284 even otherwise as Stated above, Ex. P. 8 does not disclose that the Chief Officer of the Municipality was a party to the earlier proceedings in which event the proceedings launched against the elected President of the Municipality cannot be a valid institution and cannot be construed by any stretch of imagination as a statutory notice to the Chief Officer. In this suit I find the Trial Court and the Appellate Court committed grave error in holding that the previous proceedings in O.S. No. 154 of 1978 offers sufficient notice under Section 284. The plaintiff however had issued notice under Ex. P. 9, dated 15-2-1983 to the first defendant. Immediately on the next day the suit was filed before expiry of 60 days of the notice period. The notice issued under Ex. P. 9 does not satisfy the requirement of Section 284. Hence, the suit instituted is premature. Accordingly, the first substantial question of law is answered in the affirmative.
11. Question of law 2.--The bone of contention between the parties that the identity of the plot No, 38(a) came to be dishonestly changed as 38(b) and vice versa. The more advantageous plot earlier described as 38(a) after tampering the plan has been allotted to the second defendant. In this regard there is no specific issue framed, but the parties have understood the crux of the controversy and have let in evidence. The Trial Court has also understood the crux of controversy. But, the Courts below failed to analyse the same in proper legal manner.
12. The Trial Court holds that D.W. 1 in the cross-examination admits the boundaries of 38(a) as mentioned in suit schedule. So also D.W. 3 admits the boundaries of plot No. 38(a) as mentioned in the suit schedule. Further, the municipality has failed to produce the original lay out plan to prove the location and identity of the plots. An application was filed by the plaintiffs summoning the production of the original plan from the municipality. The said document is produced. However, not marked. The Trial Court has perused the document and found that it could not have been the original plan prepared during the year 1972. The Court also holds that under Section 72 necessary sanction was to be obtained from the Government by the municipality. In that connection vide resolution No. 88, dated 12-12-1968 a plan was submitted to the council for approval for construction of shops 1 to 21. Thereby the Court infers that subsequent tenements are additions to the original plan prepared some where in the year 1968 and the original additional plan is not produced. The Trial Court rejects the contention that sanction under Section 72 was not necessary in the instant case in respect of the tenements in question.
13. Without any detailed discussion on the aforesaid aspects, the Appellate Court has confirmed the findings and dismissed the appeals.
14. As pointed out by Sri S. Mahesh and Sri G. Gachchina Math the provisions of Section 72 would not apply to the facts on hand. Since under Sub-section (2) for any lease for a period exceeding 5 years sanction from the Government is necessary. In the instant case, the offer for lease was not more than 5 years. Therefore, securing sanction was not necessary. Invoking adverse inference on the assumption that the original plan is not produced appears to be an untenable view. There is no opportunity given for leading oral evidence pursuant to the directions, the plan has been produced and with reference to that document further oral evidence was necessary to prove the case of the plaintiff and an opportunity for the municipality to explain its stand. In the absence of such fair opportunity, the finding of the Trial Court is bad in law. D.W. 1 Chief Officer of the Municipality categorically states in his evidence that he has not visited the scene and he is deposing only on the basis of the records. Therefore, no importance can be attached to his admission regarding the boundaries to the plot No. 38(a).
15. The burden was heavy on the plaintiff to establish the fact that by fraudulent methods the identity of the plot No. 38(a) was changed by labeling it as 38(b) and that defendant 2 has complicity in the said alleged mischievous act. In the first place there is no pleading imputing mala fides to 2nd defendant in obtaining allotment. Therefore, it is not permissible for the plaintiff to seek possession of the disputed property from the 2nd defendant.
16. I find that the reliefs prayed are irrelevant to the controversy in question. By the impugned resolutions the municipality had granted site No. 38(b) to the 2nd defendant, per se. There is no offensive material in the contents of the said resolution and it is also not in conflict with the resolution No. 172, dated 8-9-1973. According to the resolution No. 172, plot No. 38(a) was to be given to the plaintiff and plot No. 38(b) to the defendant 2. Accordingly, with the same description the plots have been allotted to defendant 2, The crux of the controversy is that with a mala fide intention. The first defendant has changed the original description and identities of plot Nos. 38(a) and 38(b). In order to prove the said contention, the plaintiff should have worded the reliefs more accurately and precisely to seek a declaration that the disputed site in possession of the 2nd defendant as the site bearing 38(a) and not 38(b). There is lack clarity and precision in the relief prayed for.
17. That apart in addition to the reasons stated by the Courts below I find that as per Rule 39 of the Karnataka Municipalities (Guidance of Officers, Grant of Copies and Miscellaneous Provisions) Rules, 1966 allotment of immovable property has to be made by public notice and by auction. By simple resolution, municipality cannot allot its property disposing the need of public auction. In view of the reasons and discussions made above, the 2nd point of law is answered in the negative.
18. However, the counsel for the appellant in R.S.A. No. 569 of 2003 in all fairness submits that the appellant-municipality will refund the advance amount of Rs. 11,000/- with interest at 12% per annum from the date of the suit till payment, The appeals are allowed, the judgment and decree of the Appellate Court is set aside. The 2nd respondent-municipality shall refund the advance amount with interest at 12% P.A. to the plaintiff.