TUKARAMSA KRISHNASA METRAN Vs. HUBLI

JUDGEMENT

(1.) This is plaintiffs' Second Appeal from the judgment and decree dated 20th Sept., 1984, delivered by the Addl. City Judge, Hubli (Sri. D. Basavaraju), in Regular Appeal (First Civil Appeal) No. 138/81 (Subbas Madhusa Habib Vs. Tukaramsa Krishnasa Metrani and others), arising out of Judgment and decree dated 21st Oct., 1981, delivered by the Court of the Principal Munsiff, Hubli, in regular suit O. S. No. 347/76 (Sri. Tukaramsa Krishnasa Matrani Vs. Hubli Dharwar Municipal Corporation and others) allowing the defendant No. 2's Regular Appeal and setting aside the Judgment and decree of the Trial Court in the suit, whereby, the trial Court had granted the reliefs claimed in the plaint and had declared the sale transaction in question to be null and void as well as directed for demolition of superstructure, and dismissing the plaintiffs' (the present appellants) claim in the suit.

(2.) The facts of the case in brief are that the plaintiffs filed the above mentioned suit claiming themselves to be the tax payers and to be interested in the affairs of the Hubli-Dharwar Municipal Corporation, Hubli. According to the plaintiffs' case, that the property in dispute as mentioned in the plaint was situated at Old Bus Station, Hubli. That it belonged to the Corporation defendant No. 1 (Respondent No. 1, in this appeal). That the defendant No. 2 - respondent No. 2, had applied for the suit property being sold in his favour for a sum of Rs. 12,800.00 and as per admitted facts, the matter was placed before the Standing Committee of the Corporation which passed a resolution bearing No. 13026 dated 3-4-1975, and sanctioned the sale of that property in favour of the defendant - Respondent No. 2. According to the plaintiff's case that sale of the suit property by defendant - Respondent No. 1, in favour of defendantrespondent No. 2 as well as sanction thereof was in contravention and in breach of the provisions of Sec. 79 of the Bombay Provincial Municipal Corporation Act, hereinafter referred to as the 'Act'. That defendant No. 1, disposed off the suit property without giving sufficient publicity of sale and it was sold at a too low nominal price than the actual value of the property. That plaintiffs issued and served a notice under Sec. 487 of the Act calling upon the defendant No.1, not to make transfer of the suit property as the same may affect the public rights. But, in spite of that, the property had been sold in a conclusive manner in favour of the defendant - respondent No. 2, by defendant - respondent No. 1. That the plaintiffs' case in nutshell has been that the sale is illegal, null and void as having been done in breach of the provisions of Sec. 79 of the Act So, the plaintiffs sought the decree for declaration that the sale of the suit property and the very resolution dated 3-4-1975, had been illegal, null and void, on account of its being in violation of the requirements of Sec. 79 of the Act. Further, the plaintiffs claimed the relief of decree for mandatory injunction directing demolition of the building built on the suit property by defendants 1 and 2, thereby, sought the direction to be issued to demolish it.

(3.) The plaintiffs' suit was contested by defendants 1 and 2, who filed the written statement. The defendants challenged the maintainability of the suit and alleged that the suit was not maintainable. Further, the defendants - respondents 1 and 2 alleged that the plaintiffs were not entitled to get the decree for permanent or temporary injunction as they have no right in the property, thereby, it was aileged that the suit was misconceived. Further, it was asserted in written statement that the proper remedy for the present plaintiffs - appellants was to approach the High Court under Art. 226 of the Constitution of India for a writ of mandamus.