Case: Municipal Corporation, Indore Vs. Shri K.N. Palshikar, Indore

part or some portion of the part projecting beyond the regular line or beyond the front of the immediate adjoining building, shall be removed, or that such building when being rebuilt shall be set back to or towards the said line or front; and the portion of land added to the street by such setting back or removal shall henceforth be deemed to be part of the public street and shall vest in the Corporation:Provided that the Corporation shall make reasonable compensation to the owner for any damage or loss he may sustainable in consequence of his building or any part thereof being set back.(2) The Corporation may, on such terms as it thinks fit, allow any building to be set forward for the improvement of the line of the street."15. In this case it is not necessary to determine whether land affected by a notice vests when the notice is given or when the part or some portion of the part projecting beyond the regular line or beyond the front of the immediately adjoining building is removed, or when the building when being rebuilt is set back, because it seems to have been common ground between the parties that the date for the determination of compensation in this case is the date of the meno, i. e. October 30, 1959.16. Coming to the third point, the relevant section which required interpretation is S. 387 (3) which reads:"387. Arbitration in cases of compenation, etc.(3) In event of the Panchayat not giving a decision within one month or such other longer period as may be agreed to by both the parties from the date of the selection of Sarpanch or of the appointment by the District Court of such members as may be necessary to constitute the Panchayat, the matter shall, on application by either party be determined by the District Court which shall, in cases in which the compensation is claimed in respect of land, follow, as far as may be the procedure provided by the Land Acquisition Act, 1894, for proceedings in matters referred for the determination of the Court:Provided that(a) no application to the Collector for a reference shall be necessary, and(b) the court shall have full power to give and apportion the costs of all the proceedings in manner it thinks fit."17. The learned counsel for the appicant relies on the decision of the Bombay High Court in The Borough Municipality of Ahmedabad v. Jayendra Vajubhai Divatia, ILR (1937) Bom 632 = (AIR 1937 Bom 432 ). In that case Beaumont, C. J., interpreting Section 198 of the Bombay Municipal Boroughs Act (Bom. Act XVIII of 1925), which section is, in terms, similar to Setcion 387 of the Act observed as follows:"There is no express provision in the Bombay Municipal Boroughs Act allowing for such addition to the compensation, but under the Land Acquisition Act fifteen per cent is allowed in respect of the compulsory nature of the acquisition, and the question is whether that provision in the Land Acquisition Act can be treated as incorporated into Section 198 of the Bombay Municipal Boroughs Act as being part of the procedure provided by the Land Acquisition Act. I agree that, prima facie, a provision of this sort, adding to the compensation to be payable for the value of the land, is not aptly described as procedure, but still one has to look at the Land Acquisition Act and note the phraseology adopted. One finds Part III headed "Reference to Court and Procedure thereon......"Then he referred to Sections 23, 24 and 25 of the Land Acquisition Act and concluded:"It seems to me that Sections 23, 24 and 25 of the Act constitute a code laying down the principles on which the District Court is to act in arriving at the compensation to be paid, and it is quite impossible to leave out of that code subsection (2) of Section 23, as Mr. Shah has invited me to do. His contention is that the fifteen per cent is an allowance of something in addition to the value of the land, which has to be paid for under the Municipal Act. But the truth is that the sections determine the basis on which the value of the land is to be ascertained on compulsory purchase and the allowance of the fifteen per cent must be set off against matters disallowed under Sec. 24. These provisions in the Land Acquisition Act are contained in a Chapter entitled "Reference to Court and procedure thereon" and I think that they must be treated as applicable to proceedings in the District Court under Section 198 of the Bombay Municipal Boroughs Act."18. The learned counsel for the Corporation was not able to cite any authority which has dissented from this view. We agree with the reasoning of the learned Chief Justice and hold that the Additional District Judge was right in awarding 15 per cent solatium.19. Coming to the fourth point, the revision to the High Court was filed under Section 392 of the Act which provides that:"notwithstanding anything to the contrary in any other law for the time being in force, the District Court shall exercise all the powers and jurisdiction expressly conferred on or vested in it by the provisions of this Act, and unless it is otherwise expressly provided by this Act, its decision shall he subject to revision by the High Court."The High Court could not, in a revision under Section 392, go into questions of fact and determine the amount of compensation, and the High Court was right in declining to deal with this question. It is not necessary to determine whether the powers of revision under Section 392 are the same as under Section 115, C. P. C.,because even if the powers under Section 392 of the Act are wider than that under Section 115, C. P. C., they do not extend to determining questions of fact. In view of this conclusion this point cannot be agitated before us.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. The learned counsel for the applicant, Palsikar, made a statement before us that he was willing to deposit Rs. 6,000 in the District Court within four months in respect of the area which is in possession of the tenants and that he will be entitled to withdraw this amount once the possession is given to the Corporation and not before. In view of this undertaking it is not necessary to determine point No. 2. The point is not free from doubt and we hesitate to express our opinion when the point has become academic in view of the under taking given by the learned counsel for the applicant, Palsikar.14. Regarding point No. 1, we agree with the High Court that there is no provision in the Act for enabling the Corporation to withdraw from the acquisition proceedings. In fact it seems to us that there is automatic vesting of the land in the Corporation under Sec. 305 once the requisite conditions are satisfied.The learned counsel for the Corporation was not able to cite any authority which has dissented from this view. We agree with the reasoning of the learned Chief Justice and hold that the Additional District Judge was right in awarding 15 per cent solatium.19. Coming to the fourth point, the revision to the High Court was filed under Section 392 of the Act which provides that"notwithstanding anything to the contrary in any other law for the time being in force, the District Court shall exercise all the powers and jurisdiction expressly conferred on or vested in it by the provisions of this Act, and unless it is otherwise expressly provided by this Act, its decision shall he subject to revision by the High Court."The High Court could not, in a revision under Section 392, go into questions of fact and determine the amount of compensation, and the High Court was right in declining to deal with this question. It is not necessary to determine whether the powers of revision under Section 392 are the same as under Section 115, C. P. C.,because even if the powers under Section 392 of the Act are wider than that under Section 115, C. P. C., they do not extend to determining questions of fact. In view of this conclusion this point cannot be agitated before us.