•^•yi^^. ^t,/ i^ ^v HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION No. 4011 of 2000 Narsingh Das Bagdi. Versus State ofMadhya Pradesh & Others ^ Post for pronouncement ofjudgment on . .^O.day ofAugust, 2009 Sd/- Satish K. Agnihotri Judge fe<^^|:^£^i :':'7^ v ^^s^ mOH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4011 of2000 PETITIONERS RESPQNDENTS 3. 4. Narsingh Das Bagdi S/o Shri Moolchand Bagdi^ aged about 65 years^ Farishta Complex, Raipur (M.P.) now (C.G.) VER8US State of Madhya Pradesh, through Secretary, Town & Country Planning Department, Mantralaya, Vallabh Bhawan, Bhopal (M.P.) Municipal Corporation, Raipur, Through ChiefExecutive Officer., Raipur (C.G.) The Collector, Raipur (M.P.) now C.G. Raipur Development Authority through C.E.O. R.D.A. Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri Prashant Jaiswal, Senior Advocate with Shri Alok Nigam, Advocate for the petitioner Shri M.P.S.Bhatia, Deputy Govemment Advocate for the State/respondents 1 and 3. Shri Ashish Shrivastava, Advocate for the respondent No. 2 & 4. Ms. M^orisha Chattri, Advocate for the intervener. JUDGMENT (Passed oa2^day of August, 2009) 1. The petitioner seeks following reliefs: "1. That the Hon'ble Court be pleased to quash, Annexure P/ll . by issuing a writ of certiorari. 2. That the Hon'ble Court be pleased to direct the respondents to give possession of the land-in-question situated at village Tikrapara P.C. No. 114 Khasra No. 329/1, 4 area 1.02 acres included in Katora Talab Yogna Sector 5, Tahsil and District Raipur (M.P.) by issuing a writ ofmandamus. OR/ELSE 3. That theHon'ble Court be pleased to direct the respondents to award compensation to the petitioner to the tune of Rs. 1,34,61,0007- (Rs. One crore thirty four lakhs sixty one thousand only) for illegal transfer and sale of land-in-question in favour of third person, by issuing a writ in the nature ofmandamus. 4. That the Hon'ble Court be pleased to issue any other writ or writs, order or orders, direction or directions, deemed fit in the interest ofjustice." ^^., '^, fs^^v- ^:'-s'l~' "?^ ^. ^. ^. •y^^\-/ '<^,^^f 2. The facts, in nutshell, as projected by the petitioner^ are that the petitioner claims to be the owner of land bearing Khasra No. 329/1^ 4 area 1.02 acres^ P.C. No. 114, situated at village Tikrapara, District Raipur. The Raipur Development Authority sold almost the entire land ofthe petitioner except plot No. C-63 and C-65 to the different parties. The petitioner has purchased the petition scheduled land by registered sale deed dated 10th June^ 1966 from Chandra Bhaga Bai and others (Annexure P/l). The Raipur Development Authority (for short 'the RDA') vide communication dated 29 October, 1992 (Annexure P/2) informed the petitioner to get the petition scheduled land numbered and demarcated for acquisition of the said land on mutual agreement. The petitioner sent a letter to the Chief Executive Officer, RDA on 5 March^ 1993 (Annexure P/3) stating that the petition scheduled land has been demarcated by order dated 18 August, 1992 (Annexure P/4) passed by the Naib Tehsildar, Raipur. The petitioner submitted relevant documents i.e. Kistbandi Khatauni, map ofthe petition scheduled land and accordingly he was invited for discussion/negotiation on 12 June, 1999. The negotiations failed, thereafter, the petitioner again wrote a letter to the respondent No. 2 on 7 April, 2000 for awarding compensation or giving alternate land. The respondents have taken over the possession ofthe petition scheduled land long back illegally. Thereafter, the plots were made and sold to other persons. As per notification issued by the respondent No. 3, cost ofthe petition scheduled land was declared as Rs. 300/- per sq.ft. The total price comes out to be Rs. 1,34,61,000/-. In the meantime, the petition scheduled land bearing khasra no. 329/2 in total 1.02 acres was mortgaged with the United Commercial Bank on 31st ofOctober, 1991 (Annexure P/12). Thus, the present petition for the above stated reliefs. ^) 5. Shri Jaiswal^ learned senior counsel with Shri Alok Nigam, Advocate appearing for the petitioner would submit that for the purpose of town development scheme, land may be acquired afiter invitmg objections and giving opportunity of hearing. Section 56 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'the Act, 19739) provides for acquisition of the land for the Town and Country Development Authority. Section 56 ofthe Act, 1973 further provides that ifafiter publication of notice under section 50 ofthe Act^ 1973, the authority could not proceed to acquire the land by agreement within a period of three years, a request should be made to the State Govemment to acquire the said land under the provisions of the Land Acquisition Act, 1894 (for short 'the Act, 1894') and to pay compensation thereof. Section 56 ofthe Act, 1973 read with Rule 19 ofthe Madhya Pradesh Nagar Tatha Gram Nivesh Niyam, 1975 (for short 'the Rules, 1975') provides for determination of compensation at the market value of the land. In the present case, a notification under section 50 of the Act, 1973 was issued on 20th August, 1982 followed by a notification dated 24 June, 1988. The petitioner was called for settlement by agreement. The same failed and as such, the land was to be acquired under the provisions ofthe Act, 1894 and to determine the compensation at the market value as is evident from the meeting ofthe Board of Directors held on 13 April, 2000. Thus, the petitioner is entitled to payment as per the Collector's rate existing in the year 2000, when the petition was filed. Per contra^ Shri Ashish Shrivastava, learned counsel appearmg for the respondent No. 2 would submit that in fact the petitioner had challenged the memo dated 30 May, 2000 (Annexure P/11) whereby the petitioner was to submit his consent with regard to acquisition of his land. Admittedly, the petitioner was the registered owner of the petition scheduled land but it is denied that the land has been illegally taken by the RDA for Katora Talab Yojna, Sector 5. The preliminary notification was issued on 12 Febmary, 1971 under the provisions ofTown Improvement Trust Act and thereupon the said Town Improvement Trust Act was substituted by the Act, 1973. The proceedings initiated earlier continued and the final notification was issued under section 50(4) of the Act, 1973 on 20th August, 1988 followed by notification issued on 24 June^ 1988. The possession of the land of the petitioner was taken by the Development Authority for development of the entire land in accordance with the procedures prescribed by invitmg application forms through public notice under various schemes of the Govemment. Contention of learned counsel appearmg for the petitioner that plots No. C-63 and C-65 have not been allotted is factually incon'ect as plot N0. C-63 was allotted under lease deed executed on 23rd June, 1990 whereas the plot No. C-65 was also allotted under lease deed on 25 January, 1990. The possession was also handed over to them. There is no plot vacant. The petitioner, vide memo dated 30 May, 2000 was asked to submit his option. Further, a letter was issued to .the petitioner on 4 August, 2000 (Annexure R/l). Pursuant to the resolution of the Board of Directors dated 13th April, 2000 (Annexure R/2), the possession of the land was taken long back. The petitioner has mortgaged the petition scheduled land with the United Commercial Bank and on a suit filed by the United Commercial Bank in Civil Suit No. l-B/1071^ a money decree was passed in favour of the United Commercial Bank against the petitioner and others as is evident from memo dated 18th July, 1999 (Annexure R-4/2) ofthe District Judge, Raipur. It appears that the petitioner has paid the money thereafter and the petition scheduled land was released. In fact, offer was made to the petitioner on 29 October, 1977 (Annexure R/3) for grant of compensation. A letter was endorsed to the Branch Manager, United Commercial Bank also on 30 November, 1977 (Annexure R/4) followed by another letter dated 14th April, 1978. The proceedings in respect of the case of the petitioner remained pending for various reasons as stated hereinabove. Letters were subsequently sent on 31 October, 1990 (Annexure R/9), 1st December, 1995 (Annexure R/ll) and the letter dated 8th August, 1996 (Annexure R/12). Thus, the respondents/RDA cannot be held responsible for delay as they have been trying to award the compensation to the petitioner since 29 October, 1977. But firstly, because of the mortgage ofthe petition scheduled land with the Bank and thereafter, the case was involved in Ceiling Act and, as such, the compensations could not be settled. In fact, the possession ofthe land was taken on 24 May, 1978 afiter the letter dated 29th October, 1977 for grant of compensation was written to the petitioner. The petitioner kept quite for about 22 years and filed this petition in 2000 claiming compensation at the rate ofmarket value as on the date offiling ofthe petition. The petitioner is entitled to compensation under provisions of the Act, 1894 only on the date possession ofthe petition scheduled land was taken over i.e. on 24 M:ay, 1978 in accordance with the provisions ofsection 23 ofthe Act^ 1894. When the land was acquired, it was barren and uneven. Thereafter, the RDA has developed the land afiter spending a huge amount and plots were made and sold out to several persons. The petitioner has not impleaded the persons who have been allotted plots, as third party interests, have already been created. The compensation has been determined at the market value as on the date ofpossession i.e. 29th October, 1977, i.e. the first letter for compensation was made to the petitioner. Pursuant to the direction of this Court on 5th September, 2008 and 15th October, 2008, compensation has been determined under the provisions of the Act^ 1894 and calculation has /^€^ 'f\ '^^^v ^ been filed in this Court as Document-A. Thus, the petitioner is not entitled to compensation at the rate ofmarket value as on the date offiling ofthis petition as now^ the petition scheduled land has been fully developed after spending a huge amount and the market value ofthe land has gone up by many times. Shri Bhatia^ leamed Deputy Govemment Advocate appearing for the State/respondent No. 1 and 3 would submit that the compensation has been determined under the provisions of the Act, 1894 vide the award dated 23 of July, 2009 as provisions of section 23 makes it clear that the relevant date for determination of compensation is the date of publication of the notification under section 4(1) ofthe Act^ 1894 or the date oftaking ofthe possession of the land^ whichever is earlier. Since in the present case, no notification was published, the date oftaking possession has been taken into consideration. The petitioner is entitled to 30 percent solatium under section 23(2) of the Act, 1894 and the interest as permissible under the provisions of law. The possession has already been taken over by the RDA long back. The residential houses has been constmcted thereon and allotted to several other persons who have not been impleaded as party respondents. If the acquisition is quashed, they would be vitally affected. Thus, this petition deserves to be dismissed on the ground ofnon-joinder ofthe party also. I have heard learned counsel appearing for the parties^ perused the pleadings and the documents appended thereto. From the pleadmgs of the petition as well as from the submissions of the learned counsel appearing for the parties, it is not clear asto when the possession ofthe petition schedule land was taken over, as it is no where stated in the petition. It appears from the petition that vide communication dated 29 October, 1992, the RDA informed the petitioner to get the petition schedule land numbered and demarcated for acquisition of the said land on mutual iNati—Saiaa ^^^^^ '^ r;b l'^,l^-'v agreement. Thereafter^ correspondence was going on between the parties and even on the 30th May, 2000 a letter was sent to the petitioner by the RDA in reference to the letter dated 28th August, 1992 by the petitioner seeking option ofthe petitioner to settle the compensation either through negotiation on the basis ofsale or by acquisition under the provisions ofthe Act, 1973. 9. On the other hand, it is stated by the respondents that the petition schedule land was taken over on 24 May, 1978, as according to leamed counsel for the respondents, it is evident from the letter dated 29 October, 1977 (Annexure - R/3) and several other correspondences dated 30th November, 1977, 14th April, 1978, 31st October, 1990 and 1st December, 1995. 10. The petition involves disputed question of facts i.e. firstly, with regard to taking over ofthe possession; and secondly\ the determination ofmarket value. During the course ofhearing,the compensation has been determined on 23 July, 2009 (Annexure - A) to the submissions on behalf of the respondent/State. It appears that the compensation has been determined without affording an opportunity ofhearing to the petitioner. 11. Having regard to the facts situation ofthe case, it is not possible for this Court to decide such disputed question of facts in a writ jurisdiction on the basis of affidavits filed by the parties, as is evident from the various letters (supra) and the pleadings made by the parties. 12. For the reasons mentioned hereinabove, without expressing any opinion on the merits ofthe case, the memo dated 23 July, 2009 (Annexure - A) isset aside. The respondent authorities are directed to decide the date of taking over possession ofthe petition schedule land and determine the compensation ofthe same after considering the consent/response of the petitioner pursuant to the letter dated 30 May, 2000 (Annexure - P/l 1) and pass appropriate orders, in accordance with law and on its own merits, or on mutual consent, as ii^StTii.;' „-——— - — ^' expeditiously as possible preferably within a period of six weeks from the date of receipt of a copy of this order. After determination of the compensation, if there is any grievance, the petitioner may thereafter approach the reference Court for appropriate relief, if so advised. 13. Accordingly, the writ petition is disposed ofwiththe aforesaid observations and directions. —-—-— Amit/Gowri Sd/- Satish K. Agnihotri Judge