HAMID KHAN Vs. MUNICIPAL COUNCIL BEED

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree passed by the learned Assistant Judge, Beed, in Regular Civil Appeal No. 165/78, whereby the suit of the plaintiffs came to be dismissed, the appellants/ plaintiffs have approached this Court and an argument has been devised on behalf of the appellants/plaintiffs that the record and proceedings involved in several orders recorded by the Respondent/Municipal Council clearly show that the Respondent/Municipal Council has waived its right of ownership on the suit plot Nos. 116 and 80 at Bhaldarpura, Beed. The learned Advocate for the appellants, when being drawn attention to the ground of estoppel being the ground of admission of this appeal, has fairly conceded that he would prefer to dwell on the question of waiver rather than estoppel since the documents, upon which he seeks reliance, show the waiver on the part of the Municipal Council. He had drawn my attention to several orders that have been passed by the Chief Officer, Municipal Council some time in the years 1965 -66 and 1975 and has contended that the said authority did not chose the specifically state that the suit plots vest in the Municipal Council. The said authority rather in the first breath was inclined to observe that the suit plots belong to the plaintiff in an application filed by Respondent No. 2 to seek mutation in the name of Respondent No. 2 in the record relating to Plot No. 80. Again in the proceeding in the year 1975, the said Chief Officer did not dispose of the application by observing that the suit plots vest in the Municipal Council and that neither the plaintiffs nor defendant No. 2 (now the Respondent No. 2) could lay any claim on those plots. Even in reply to the notice given about the suit, the Municipal Council did not assert its ownership on those plots, but rather directed the plaintiffs to seek the necessary declaration from the Civil Court. These are the circumstances, according to the learned Advocate for the appellants, which speak volumes in his favour. This is the case of waiver on the part of the Municipal Council and the Municipal Council has voluntarily and intentionally abdicated its right to lay claim over the suit plots and in that light of the matter, these overwhelming circumstances should persuade this Court to restore the judgment and decree passed by the Trial Court and set aside the judgment and decree passed by the learned Appellate Judge.

(2.) THIS has been very stoutly countered by the learned Advocate for the Municipal Council. He has contended that looking to the relevant provisions under the Maharashtra Municipalities Act, Chief Officer had really no business to advert upon the question of ownership of the suit plot. He did not have jurisdiction to decide this question. The competent authority was the Collector and nobody else. If in this light, the Chief Officer chooses to pass some orders, those orders cannot bind the Municipal Council. Now, under the above Act, the Chief Officer is a spokesman of the Municipal Council, but independently he cannot dwell upon the question of ownership, more particularly against the Municipal Council. It is the only resolution of the Municipal Council which can give legal and valid effect to the alienations by the Municipal Council. On the question of waiver he has contended that the plea of waiver has not been specifically raised at any stage and at this stage such plea cannot be allowed to be taken in view of the ratio laid down by the several High Courts in various rulings.

(3.) THIS suit was resisted by the Municipal Council and the Municipal Council denied that plaintiff Hamid Khan or his ancestors were at any time the owners and possessors of the suit plots. The Municipal Council also denied that there existed any well or any foundation stone bearing the name of the forefathers of Hamid Khan. As regards the use of plot No. 80 the Council contended that no agricultural implements were store at any time by Hamid Khan or his successors. Regarding the proceeding of 1965, the Council contended that in that proceeding there was no specific declaration by the Council about the ownership of the plaintiffs over the suit plots. It is also stated that the Municipal Council was not competent to decide any title question. It decided the claim made by the Respondent No. 2 and that claim was rejected on the judgment passed in that proceeding. Regarding the proceeding of 1975, it is contended that the Chief Officer inadvertently directed the plaintiff to approach the Civil Court, but it is pointed out that in that order in the last para, it was clearly revealed that the Municipal Council had asserted its title over the suit plots. The plaintiff Hamid Khan had no right or title over those plots and accordingly the Municipal Council prayed for the dismissal of the suit. Defendant No. 2 Ganpat did not file any written statement and the matter proceeded ex -parte against him.