ADMINISTRATOR MUNICIPALITY, JAMMU Vs. BEDI CHAND

JUDGEMENT

(1.) THE material facts giving rise to this appeal are brief, are stated as follows : The appellant wanted to widen Bazar from Daki Sarajan to Lakhdatta Bazar, Jammu. He therefore, acquired a portion of two shops belonging to the respondent through private negotiations. An agreement Ex P. A. came to be executed between the parties on 14 -6 -1967 according to which the respondent was to receive Rs. 825/ - on account of price of the land underneath the portion of the shops which was _to be included in the widening of the Bazar, Rsl650/ on account of dismantling charges and Rs. 4860/ - on account of design charges from the appellant. The agreement was signed by the appellant, the respondent, and the Executive Engineer of the Municipality in token of its acceptance. Later on the respondent demolished his shops and re -built them in accordance with the design approved by the Municipality He was paid the first mention sums of Rs 825 - and Rs. 1650/ - but the appellant refused to pay him more than Rs. 2436/ - on account of design charges. The respondent, therefore. brought a suit for the recovery of Rs 4860/ - against the appellant on the basis of agreement Ex P. A. The suit was resisted by the appellant by taking in his written statement the plea of mutual mistake in the calculation of design charges which according to him could not be more than Rs 5/ - per sq. foot for ground floor and Rs. 4/ - per sq foot for the first floor but during the course of arguments he also challenged the validity of the agreement on the ground that it did not fulfill the requirements of Sec, 56 of the. Municipal Act hereinafter the Act. The trial court raised three issues and the parties led evidence them. Out of these three issues, the first was whether the respondent was entitled to the decree prayed for on the basis of the agreement and the second was whether the appellant was not bound by the agreement. The trial court on consideration of the material on the record came to the conclusion that the agreement was not vitiated by mutual mistake of the parties, but the same was void as it filled to satisfy the requirements of Sec. 56. It, nevertheless granted a decree in favour of the respondent on the principle embodied in Sec. 70 of the Contract Act. On appeal, however, the lower appellate court held the agreement to be valid and upheld the decree passed by the trial court. This appeal is directed against the aforesaid decree of the lower appellate court. .

(2.) APPEARING for the appellant; Mr. Nanda has raised a twofold contention before me. His first contention is that as the agreement neither bears the signature of the Secretary of the Municipality, nor seal of the Municipality has been affixed to it which according to the learned Counsel are the mandatory requirements of section 56, it is void abinitio. His second contention is that design charges, were to be paid to the respondent without any resultant benefit to the Municipality as such sec. 70 the Contract Act had no application. The argument of Mr. Malhotra on the other hand is that there being no Municipal Council in existence on the date of -the agreement. Ex. P. A. Section 56 was not attracted and the agreement between the parties was perfectly valid under ordinary law of contract, adding that, the appellant not having taken the plea of validity of the agreement in his written statement was estopped from raising the same during the subsequent stages of the litigation. He has also made a feeble attempt to controvert the second plea of the appellant that Sec 70 had no application to the facts of the case.

(3.) SUB -section 1 of Sec. 56 of the Act which is the sheet -anchor of the appellants case reads as under: - "56. Mode of executing contract and transfer of property -1 Every contract made by or on behalf of a Council whereof the value or amount exceeds Fifty rupees shall be in writing and every such contract shall be signed by the Executive Officer, the Secretary, and one Muncipal Councillor and shall bear the common seal of Municipal Council."