1 sa122.15.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.122 OF 2015 Smt. [ENTITY], Aged about 77 years, R/o Wamanrao Lane, Sitabuldi, Nagpur. Appellant Versus [ENTITY], Through Its Chairman, Near Liberty Cinema, Nagpur. Respondent Shri [ENTITY], Senior Advocate, with Shri [ENTITY], Advocate, assisted by Shri [ENTITY], Advocate for Appellant. Shri [ENTITY], Senior Advocate, with Shri [ENTITY], Advocate, assisted by Shri [ENTITY], Advocate for Respondent. CORAM : [ENTITY], J. DATE OF RESERVING THE JUDGMENT : 6TH MARCH, 2017 DATE OF PRONOUNCING THE JUDGMENT : 14th MARCH, 2017 Uploaded on - 14/03/2017 Downloaded on - 15/03/2017 01:08:38 2 sa122.15.odt JUDGMENT :
1. The appellant-plaintiff was the owner of the lands Khasra No.9/1 admeasuring 29.26 acres, Khasra No.9/2 admeasuring 7 acres, and Khasra No.11 admeasuring 8.35 acres. Thus, the total area was of 44.61 acres. The respondent-defendant is the local authority, constituted under the [ENTITY] Act, 1936, which issued a notification under [SECTION] of the said Act for acquiring the entire 44.61 acres of land for the purposes of [ACT] on 27-11-1953. The matter was compromised and the appellant-plaintiff accepted the compensation of Rs.23,500/-. Accordingly, an award was passed on 31-12-1962. The compensation was paid and the possession was taken over by the defendant-[ENTITY] ("[ENTITY]"). Thus, it is an undisputed factual position that by virtue of such acquisition, the entire land admeasuring 44.61 acres vested in the [ENTITY] and it became absolute owner of it free from all encumbrances, sa122.15.odt with a right to dispose it of in accordance with law.
2. It seems that the [ENTITY] found that the lands acquired by it under the various schemes became surplus and hence a policy decision was taken by the Board Resolution dated 3-5-1968 at Exhibit 113 on record for disposal of the land to the owners on lease by charging the determined premium and the ground rent. The [ENTITY] accordingly invited applications from the owners of the land for re-allotment on lease. The appellant-plaintiff filed such application dated 3-9-1975 for re-allotment of the entire 44.61 acres of land on lease on the basis of the terms and conditions mentioned in the Board Resolution at Exhibit 113. The [ENTITY] considered all these applications and passed a resolution on 6-10-1975 at Exhibit 106 to re-allot the entire land of 44.61 acres to the appellant-plaintiff on the terms and conditions stipulated therein in accordance with the Board Resolution at Exhibit 113. This decision was communicated to the appellant-plaintiff by the communication dated 16-10-1975, marked as [SECTION], determining the total sa122.15.odt premium of Rs.35,250/- for re-allotment of 44.61 acres of land.
3. It seems that the appellant-plaintiff made certain representation to the [ENTITY] for reducing the amount of premium and expressed a clear intention in the communication dated 18-12-1976 at Exhibit C-71 to deposit the amount of first installment of Rs.3,525/-. This was also reiterated in the communication dated 2-3-1982 at Exhibit C-75. In response to the communication at Exhibit C-75, the [ENTITY] informed the appellant-plaintiff vide its communication dated 9-6-1982 at Exhibit 59 that the request of the appellant-plaintiff for allotment of the land measuring about 24 acres out of 44.61 acres has been considered, and hence for allotment of 24 acres of land, the revised premium would be Rs.19,230/-, out of which, the first installment of 10% will have to be paid immediately. Thereafter, on 9-2-1989, a lease agreement at Exhibit 64 in respect of 24 acres of land was executed between the [ENTITY] and the appellant-plaintiff on the basis of the communication dated 6-11-1982 at Exhibit 61 issued by the [ENTITY].
sa122.15.odt The possession of 24 acres of land was also handed over to the appellant-plaintiff on 26-11-1982. The lease commenced from 11-11-1982 and it was for a period of 30 years ending on 31-3-2013.
4. In spite of repeated reminders, the [ENTITY] did not execute the lease-deed in respect of remaining 20.61 acres of land in favour of the appellant-plaintiff, and hence [CASE NUMBER] was filed on 15-12-1985 claiming the reliefs as under :
"(a) Declare that the plaintiff is entitled to re-allotment of 20.61 acres of her land to her to the exclusion of anybody else as the acquisition of the plaintiff's land for the purpose of defendant's scheme is not required by the defendant for its scheme.
(b) Issue a mandatory injunction directing the defendant to re-allot 20.61 acres of land out of survey no.9/1, 11 and 9/2 of Mouza Godani, Umrer Road, Nagpur, to the plaintiff and execute a lease indenture accordingly in favour of the plaintiff.
(c) Issue mandatory injunction directing the defendant to make the offer of her land admeasuring 20.61 acres of suit land S/Nos.9/1, 11, 9/2 of Mouza Gondhani, sa122.15.odt Umrer Road, Nagpur to the plaintiffs land is not required by the defendant for its scheme and the defendant be permanently restrained from making offer of plaintiff's remaining suit land to anybody else in any manner and under any pretext.
(d) Declare that the plaintiff's suit land i.e. 20.6 acres of land in Survey Nos.9/1, 11, 9/2 of Mouza Godhani, Umrer Road, Nagpur, has been unnecessarily acquired with malafide intention and that it was never required and needed by the defendant for its drainage and Sewerage Disposal Scheme Part-II as firstly notified on 27.11.1983, as per award dated 31.12.1962.
(e) Saddle the costs of the suit on the defendant, and
(f) Grant any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case."
5. The questions involved before the Courts below were three-fold - (i) whether the plaintiff acquired the right to get re-allotment of remaining 20.61 acres of land? (ii) whether the defendant-[ENTITY] was avoiding to re-allot and execute lease-deed in respect of the suit land to the plaintiff? and (iii) whether the plaintiff has established the payment of premium for re-allotment of land of 20.61 acres? The Trial Court records the finding that the sa122.15.odt entitlement of the appellant-plaintiff for allotment of the entire land of 44.61 acres was established on the basis of the Board Resolution dated 3-5-1968 at Exhibit 113, the decision of the [ENTITY] taken on 6-10-1975 at Exhibit 106 to allot 44.61 acres of land to the plaintiff, and the communication of allotment of such land issued by the [ENTITY] on 16-10-1975 at [SECTION]. The Trial Court holds that the total premium payable was of Rs.35,525/- and the appellant-plaintiff had paid an amount of Rs.19,230/- and the balance remained to be paid is of Rs.16,295/-.
6. The Trial Court passed a decree on 4-11-2003 in favour of the appellant-plaintiff, and the operative part of the judgment delivered, is reproduced below :
"i] The suit is decreed with costs. ii] It is hereby declared that the plaintiff is entitled
for re-allotment of remaining 20.61 acres suit land, described in para 1 of the plaintiff, on the same terms and conditions mentioned in Exs.106 and 57.
sa122.15.odt iii] The plaintiff is hereby directed to deposit remaining premium amount of Rs.16,295/- along with 10% p.a. interest from 16.10.1975 till the date of payment, with N.I.T. within two months from the date of this order, failing which the suit shall stand dismissed. iv] The N.I.T. is directed that on depositing the said amount by the plaintiff, execute the lease-deed of the suit land admeasuring 20.61 acres in favour of the plaintiff on the same lines of the lease deed dt.9.2.89 (Ex.64).
v] Decree be drawn up accordingly."
7. The lower Appellate Court relies upon several decisions of the Apex Court to hold that once the land gets vested in the [ENTITY] by way of statutory provisions, free from all encumbrances, there was no vested right in the plaintiff to seek re-allotment of such land, and it was open for the [ENTITY] to dispose it of in accordance with law or to utilize it for any other purpose. The lower Appellate Court relies upon the provision of [SECTION] of the [ENTITY] Land Disposal Rules, 1955 and holds that the allotment of land by the [ENTITY] can only be for the purposes and the manner mentioned sa122.15.odt under the said Rules. It holds that there was no right of re-allotment of land in favour of the appellant-plaintiff, and even if it is considered to be a suit for specific performance of contract, the cause of action arose on 16-10-1975 and the suit filed on 15-12-1989 was beyond the period of limitation of three years, as prescribed under [SECTION] of the [ACT]. The lower Appellate Court allows [CASE NUMBER] on 26-8-2014 and dismisses the suit, setting aside the decree passed by the Trial Court. Hence, this second appeal by the original plaintiff.
8. On 20-6-2016, this Court passed an order, admitting the second appeal and framing the substantial questions of law as under :
" Heard Shri [ENTITY], the learned counsel appearing for the appellant and Shri [ENTITY], learned Senior Advocate, assisted by Shri [ENTITY], Advocate, appearing for respondent-[ENTITY].
sa122.15.odt The following substantial questions of law arises for consideration by this Court.
(I) Whether the lower appellate Court erred in applying and relying on the [ENTITY] Land Disposal Rules, 1983, when in fact what was sought to be enforced by the appellant was the order dated 16.10.1975 in consonance with letter/order dated 06.10.1975 passed in terms of Board Resolution dated 03.05.1968, i.e. decision taken by the respondent much prior to the framing of Rules of 1983?
(II) Once the [ENTITY], the acquiring body chooses to re-allot the land acquired, whether such action of re-allotment can be enforced in the Court of Law?
Admit The learned counsel appearing for the respondent waives service of notice.
Hearing is expedited."
9. Shri [ENTITY], the learned Senior Advocate appearing for the respondent-[ENTITY], invited my attention to the decisions of the Apex Court in the cases of [PRECEDENT];
[PRECEDENT] [PRECEDENT], relied upon by the lower Appellate Court, and has urged that once the land gets vested in the [ENTITY], the land-owner ceases to have any right of re-allotment even if it is found that the purpose for which the land was acquired no longer survives.
10. In the present case, it is not in dispute that the land in question stood vested in the [ENTITY], free from all encumbrances. If the land is found to be surplus or not necessary for the purpose for which it was acquired, then it was possible for the [ENTITY] to dispose of such land in favour of the owner on lease in accordance with the [ENTITY] Land Disposal Rules, 1955 having a statutory character. If the disposal is made for the purpose, or to the persons, and in the manner provided under the statutory Rules, then the question of applicability of the ratio of the decisions delivered by the Apex Court, cited supra, does not at all arise.
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11. Though the suit land vested in the [ENTITY], a policy decision was taken by it, contained in the Board Resolution at Exhibit 113, for disposal of land to the owners from whom it is acquired on lease, by charging the determined premium and the ground rent. Accordingly, the applications were invited from all such persons, including the appellant-plaintiff, which is apparent from the position brought on record for re-allotment of land on lease. By the Resolution at Exhibit 106, a decision was taken to re-allot the entire land of 44.61 acres to the appellant-plaintiff on the terms and conditions stipulated therein in accordance with the Board Resolution at Exhibit 113. By issuing communication at [SECTION], the total premium of Rs.35,250/- was determined for re-allotment of 44.61 acres of land to the appellant-plaintiff.
12. It is not in dispute that when the Board Resolution was passed on 3-5-1968, the [ENTITY] Land Disposal Rules, 1955 were in force and, therefore, it has to be presumed that sa122.15.odt the policy decision to re-allot the land to the land-holders/owners was as per the said Rules. It was nowhere the case of the [ENTITY] that the disposal in favour of the appellant-plaintiff was not in accordance with such Rules or that the Board Resolution was not in conformity with such Rules. The decision to re-allot 44.61 acres of land to the appellant-plaintiff is in exercise of the statutory power and, therefore, the precedents relied upon by Shri [ENTITY] do not apply to the facts of this case. The allotment created a legal right in favour of the appellant-plaintiff to get lease of the entire land of 44.61 acres, and the finding rendered by the Trial Court regarding entitlement of the appellant-plaintiff cannot be faulted with. Such decision of the [ENTITY] becomes enforceable in the Court of law. The question of law at serial No.(II) is answered accordingly.
13. There was some dispute as to the allotment of 20.61 acres of land to the appellant-plaintiff. According to the [ENTITY], only 24 acres of land was allotted and accordingly a lease-deed in respect of it was executed on 9-2-1982 at Exhibit 64 and the sa122.15.odt possession of the said land was delivered to the appellant-plaintiff on 26-11-1982. It is not understood as to how the entitlement of the appellant-plaintiff for re-allotment of the land is disputed, particularly when 24 acres of land was allotted to the appellant-plaintiff and a lease-deed in respect of it was executed in conformity with the Board Resolution at Exhibit 113. Be that as it may, in fact there is allotment of the entire 44.61 acres of land to the appellant-plaintiff on lease, which is absolutely clear from the contents of the Resolution of the [ENTITY] passed on 6-10-1975 at Exhibit 106 and the communication dated 16-10-1975 at [SECTION] issued pursuant thereto, determining the premium of Rs.35,525/- payable in respect of 44.61 acres of land. It cannot, therefore, be said that there was any legitimate dispute on the question of allotment of 44.61 acres of land to the appellant-plaintiff.
14. In para 4 of the plaint, the specific averments are as under :
"4. That, on being allotted 24.00 acres of land out of the total 44.61 acres of land; the plaintiff by the letter sa122.15.odt dated 22.08.1983 again made a request to the defendant for re-allotment of remaining 20.61 acres of land to her followed by reminders thereafter from time to time. The plaintiff has already made the payment of all the dues of the defendant from time to time and again requested the defendant by the letter dated 11.10.1985 for release of remaining 20.61 acres of land to her. The defendant by its letter dated 31.12.1986 directed the plaintiff to make payment of Rs.4,514.92 for allotment of remaining 20.61 acres of land and the plaintiff arranged the payment of this amount also for re-allotment of her remaining 20.61 acres of land to her followed by the reminder dated 22.11.1988."
The reply to the aforesaid averments is contained in para 4 of the written statement, which is reproduced below :
"4. As to para 4 :- It is denied that the plaintiff has requested this defendant by letter dated 22.8.1983 for allotment of remaining 20.61 acres of land. Letter dated 11.10.1985 of the plaintiff is a matter of record and need no comments. It is denied that the defendant by its sa122.15.odt letter dated 31.12.1986, directed the plaintiff to make the payment of Rs.4,514.95 for allotment of remaining 20.61 acres of land. It is denied that the plaintiff has made the payment of above amount for re-allotment of remaining 20.61 acres of land. On the contrary, it is submitted that this defendant has asked to deposit the amount of Rs.4,514.95 towards arrears of premium, interest and ground rent amounting to Rs.4,514.95. It is further submitted that this amount was not accepted or asked from the plaintiff for allotment of remaining 20.61 acres of land. Letter dated 22.11.1988 is a matter of record and need no comments."
Though the letter dated 11-10-1985 is not produced on record, it was for release of remaining 20.61 acres of land to the appellant-plaintiff and the letter dated 31-12-1986 issued to the appellant-plaintiff by the [ENTITY] was to make the payment of Rs.4,514.95 for allotment of remaining 20.61 acres of land. These facts are not disputed in the written statement, but the reply is that it is a matter of record.
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15. The [ENTITY] has examined one [ENTITY], DW 1, working as Senior Clerk in the Recovery Department. In his examination-in-chief, he states that the appellant-plaintiff has not deposited the premium for 20.61 acres of land, though he admits that Exhibit 88 is the receipt of Rs.4,514.95. Probably, it is the case of the [ENTITY] that the appellant-plaintiff, by issuing the communication dated 2-3-1982 at Exhibit C-75, requested for allotment of the reduced area of land because of the financial difficulties. However, in the cross-examination, this witness of the defendant-[ENTITY] clearly admits that the claim in this communication at Exhibit C-75 is not for restricted area of 24 acres. He further admits that from 1975, the appellant-plaintiff has been demanding allotment of 44.61 acres of land. The appellant-plaintiff was called upon by the defendant-[ENTITY] by issuing the communication dated 3-12-1986 at Exhibit C-83 to deposit an amount of Rs.4,414.95. This witness of the defendant-[ENTITY] in categorical terms states in the cross-examination that this document nowhere sa122.15.odt indicates payment for 24 acres of land.
The defendant-[ENTITY] has, therefore, failed to establish that the appellant-plaintiff was allotted only 24 acres of land and the balance 20.61 acres of land was never allotted to the appellant-plaintiff.
16. Shri [ENTITY], the learned Senior Advocate for the respondent-[ENTITY], has urged that the Trial Court in fact passed a decree for specific performance of contract of lease and the same was, therefore, governed by the provision of [SECTION] of the [ACT]. He submits that refusal to execute the agreement of lease in favour of the appellant-plaintiff was known to the appellant-plaintiff on 16-10-1975 when [SECTION] was issued to allot him 24 acres of land. He further submits that the cause of action arose to the appellant-plaintiff on that date and the suit filed on 15-12-1989 was barred by the law of limitation of three years prescribed therein.
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17. Though the allotment of 44.61 acres of land was on 16-10-1975, the lease-deed in respect of 24 acres of land was executed on 9-2-1989. Thus, there was refusal on 9-2-1989 to execute the lease-deed in respect of 20.61 acres of land. Hence, the cause of action in terms of [SECTION] of the [ACT] would start running from 9-2-1989 when the defendant-[ENTITY] refused to execute the lease-deed. The suit in question having filed on 15-12-1989 was not, therefore, barred by the law of limitation. In fact, this was not the question raised before the Trial Court and no issue was framed in respect of it. The lower Appellate Court has committed an error of law in considering such issue and holding that the suit in question was barred by the law of limitation. The finding of the lower Appellate Court, therefore, needs to be set aside.
18. The lower Appellate Court has committed an error in holding that the defendant-[ENTITY] could not have disposed of the land in favour of the appellant-plaintiff without there being any authority sa122.15.odt of law. The reliance was placed by the lower Appellate Court on the provision of [SECTION] of the [ENTITY] Land Disposal Rules, 1982 to hold that there was no compliance and the allotment was not in conformity with it. In my view, such reliance was misplaced. The reason being that the said Rules were brought into force on 18-5-1983 and the decision to re-allot 44.61 acres of land to the appellant-plaintiff was taken on 6-10-1975 and 16- 10-1975, i.e. prior to coming into force of these Rules. The Rules had no retrospective effect so as to nullify the actions taken in accordance with the earlier Rules prevailing. The substantial question of law at serial No.(I) is, therefore, answered accordingly.
19. The defendant-[ENTITY], in spite of several reminders, did not execute the lease-deed in respect of remaining 20.61 acres of land in favour of the appellant-plaintiff. This Court has accepted the finding recorded by the Trial Court that the allotment was in respect of the entire 44.61 acres of land on 16-10-1975 at [SECTION]. The lease-deed was, however, executed on 9-2-1989 at Exhibit 64 and sa122.15.odt the defendant-[ENTITY] avoided to execute the lease-deed in respect of 20.61 acres of land. The Trial Court was, therefore, right in passing a decree for that purpose.
20. In view of the aforesaid answers to the substantial questions of law framed and setting aside the findings recorded by the lower Appellate Court, the second appeal needs to be allowed by restoring the decree passed by the Trial Court. Hence, the following order is passed :
: O R D E R :
The second appeal is allowed.
The judgment and order dated 26-8-2014 passed by the lower Appellate Court in [CASE NUMBER], is hereby quashed and set aside, and the judgment and decree passed by the Trial Court on 4-11-2003 in [CASE NUMBER] is restored.
No order as to costs.
sa122.15.odt JUDGE.
[ENTITY]