Case: NAGPUR IMPROVEMENT TRUST Vs. SHEELA RAMCHANDRA TIKHE

3. Brief facts of the case necessary to be noted for deciding this appeal are:-The Nagpur Improvement Trust, the appellant has been constituted under the Nagpur Improvement Trust1936. For the purposes of Drainage and Sewerage Scheme Part-II, notification under Section 39 of the Nagpur Improvement Trust Act, 1936 was issued on 27.11.1953 for acquiring 44.61 acres of land of the respondent. An award was passed ondetermining the compensation of Rs.23,500/-on the basis of compromise, which compensation amount was paid to the respondent and possession was taken over by the appellant of the land.By letter dated16.10.1975, the appellant informed the respondent in reference to her application dated 03.09.1975 that land acquired by the Trust may be allotted to her on the terms and conditions as mentioned in the letter.The letter dated 16.10.1975 communicated that amount of consideration for allotment would be 1.5 times of the amount received by them from the Land Acquisition Officer. The lessee can use the land only for Agriculture purposes and the amount of consideration will have to be made in maximum 10 installments.The respondent was required to deposit amount of Rs.3,525/- towards first installment and sign the form of terms and conditions of the allotment, only after that the Trust would be able to take further action in the matter.The respondent in reply to the aforesaid letter wrote back to the appellant on 01.11.1975 requesting to revise the amount of premium payable by her.The respondent wrote further letters, lastly on 02.03.1982, again reiterating her request to reduce the amount. It was further requested that she should be given the land measuring 44.61 acres at the cost of acquisition only. The letter dated 02.03.1982 was replied by the appellant vide letter dated 09.06.1982 allocating land measuring 24 acres out of 44.61 acres. The revised premiumfor allotment of 24 acres was fixed as Rs.19,230/- and first installment of 10% was requested to be paid immediately and to further accept terms and conditions of allotment. The respondent acknowledged the allotment letter dated 09.06.1982 and communicated her acceptance on 15.06.1982. The respondent accepted the allotment on revised premium. In pursuance of theacceptance of allotment letter dated 09.06.1982 allotting 24 acres of land on terms and conditions mentioned therein, the possession of 24 acres of land was also handed over to the respondent on 11.11.1982. The respondent after taking possession of 24 acres of land again wrote a letter dated 17.06.1983 thanking the appellant for allotment of 24 acres of land and further requesting to release remaining 20.61 acres of land.The appellant wrote on 31.12.1986 to the respondent to pay Rs.4514.95 due from her. The respondent thereafter sent various representations for allotment of remaining 20.61 acres of land. On 09.02.1989, a lease was executed by the appellant in favour of respondent for 24 acres of land as was allotted by allotment letter dated 09.06.1982. The respondent filed a suit – Regular Civil Suit No. 2515 of 1989 against the Nagpur Improvement Trust, praying for following reliefs:-(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 requiredby 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, Umrer Road, Nagpur to the plaintiffs land is not required by the defendant for its scheme and the defendant a permanently restrained from making offer of plaintiffs remaining suit land to anybody else in any manner and under any pretext.(d) Declare that the plaintiffs suit land i.e. 20.6 acres of land in Survey Nos. 9/1, 11, 9/2 of Mouza Godhani, Umrer Road, Nagpur, hasbeen 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.The trial court framed following issues:-ove by abuseof process of law,malafidely and under colorabale exercise of power that defendant has unnecessarily acquired her land?Does she further prove that she has the preferential right to get reallotment of remaining 20.61 acres of land?Does she further prove that shehad deposited Rs.4515.95for allotment of remaining 20.61 acres of land?Does she further prove that defendant is avoiding to re-allot her remaining 20.61 acres of land?ff is entitled to get relief as prayed?What order ande trial court held that Issue No. 1 does not survive.Issue No.3 was decided against the plaintiff, however, trial court answered the Issue Nos. 2, 4 and 5 in favour of the plaintiff and decreed the suit holding that plaintiff is entitled for allotment of remaining 20.61 acres of land. Plaintiff was directed to deposit remaining premium amount of Rs.16,295/- along with 10% p.a. interest and the appellant was directed to execute the lease- deed of land admeasuring 20.61 acres in favour of the respondent.The appellant aggrieved by the judgment and decree of the trial court filed a Regular Civil Appeal No. 632 of 2007.The District Judge, Nagpur formulated following points for consideration:-1)Whether respondent-plaintiff is entitled to allotment of the suit land?2)Is the suit barred by time?3)Is the judgment and decree impugned herein call for interference?he learned District Judge held that plaintiff was not entitled for allotment. The District Judge further held that suit filed by the plaintiff was virtually a suit for specific performance of the letter of allotment dated 16.10.1975 and suit having been filed beyond a period of 3 years is barred by time.The District Judgevide judgment dated 26.08.2014 allowed the appeal, set aside the decree of the trial court and dismissed the suit. Against the judgment of the Appellate Court, second appeal was filed by the respondent before the High Court. The High Court framed following two substantial questions of law in the appeal:-(1) Whether the lower appellate Court erred in applying and relying on the Nagpur Improvement Trust 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 termsof Board Resolution dated 03.05.1968, i.e. decision taken by the respondent much prior to the framing of Rules of 1983?(2) Once the Nagpur Improvement Trust, the acquiring body chooses to re-allot the land acquired, whether such action of re- allotment can be enforced in the Court of Law?The High Court held that plaintiff was entitled for allotment of 20.61 acres of land in view of resolution of the Board dated 03.05.1968. The High Court also held that the Rules namely Nagpur Improvement Trust Land Disposal Rules, 1983 having came into force on 18.05.1983 was not applicable to the Board Resolutiondated 03.05.1968 and the decision taken on 06.10.1975 and 16.10.1975. The High Court further held that trial court having not framed any issues regarding limitation, the first appellate Court committed error in holding that the suit was barred by limitation, consequently, the second appeal has been allowed by the High Court, restoring the judgment and decree of the trial court. The Nagpur Improvement Trust being aggrieved by the judgment of the High Court has come up in this appeal.

Reasoning:
17. The present is a case where for the disposal of the land in question Rule 5(2) became applicablefrom 18.05.1983. The earlier Resolution of the Board dated 03.05.1968 would no longer have been availed after the enforcement of 1983 Rules for allotment of land. Sub -rule (2) of Rule 5 which provides for no exception except as otherwise provided in sub-rule (1) and Part VI of these Rules. Sub-rule (1) of Rule 5 referred to general or special sanction of the Government which is not applicable in the present case. Part VI dealt with grant of land for religious, educational, charitable and public purposes which also is not applicable in the facts of the present case. Hence, after the enforcement of the Rules of land vested and acquired by the Trust was to be disposed of only in the manner as indicated in sub-rule (2) of Rule 5. Admittedly 24 acres out of 44.61 acres of land was already allotted to the plaintiff on 09.06.1982 and Trust has taken a decision not to allot any further land in view of its subsequent decision dated 24.04.1983 to keep the remaining 20.61 acres of land for Department of Social Forest Trees for Central Nursery and for Nursery of the Nagpur Improvement Trust was taken by the Board. Thus, there was decision of Trust to set apart land of 20.61 acres for Department of Social Forest Trees for Central Nursery and for Nursery of the Trust. After enforcement of Rules, 1983 which were brought into force on 18.05.1983, 20.61 acres of land could not be allotted to the plaintiff except by following Rule 5 of the Rules, 1983. The First Appellate Court has categorically made note of the Rules, 1983 and held that the plaintiff was not entitled for any further allotment.The High Court took the view that since the decision to allot 44.61 acres of land was taken on 06.10.1975 and 16.10.1975 i.e. prior to Rules, 1983, the Rules had no retrospective effect which shall not nullify the actions takenin accordance with the earlier Rules then prevailing. There is no question of nullifying the decision taken on 06.10.1975 and 16.10.1975 which was taken earlier to the subsequent Rules, 1983. In pursuance of earlier decision i.e. taken on 06.10.1975 and 16.10.1975 the entire allotment which took place prior to Rules, 1983 were completely saved but allotment which could not culminate before enforcement of Rules, 1983, would not have been made after the enforcement of Rules, 1983 except in accordance with Rules, 1983. We have already noticed that the plaintiff was allotted only 24 acres of land in pursuance of decision dated 06.10.1975 and 16.10.1975 and request of the plaintiff to allot entire 44.61 acres of land was not acceded to and only 24 acres of land was allotted possession of which was handed over to the plaintiff on 11.11.1982. There being no allotment of rest 20.61 acres of land prior to 18.05.1983 on the basis of earlier decision no allotment would have been made after the enforcement of the Rulesin disregard to the statutory Rules. The statutory Rules enforced w.e.f 18.05.1983 substantially changed the manner of allotment and more rigorous conditions were put on the land of the Trust. There cannot be any dispute with the proposition that after the land is acquired for public purpose it vests in the acquiring body and the land holder has no right to claim the land acquired.We, thus, are of the considered opinion that the claim of plaintiff for allotment of additional land of 20.61 acres which can be at best said to be pendingon the date of enforcement of Rules, 1983 would have been only dealt with in accordance with Rule 5 of Rules, 1983 and disregard of said Rules the trial court would not have decreed the suit directing the Trust to execute lease infavour of the plaintiff of 20.61 acres of land. The decree of the trial court was clearly in the teeth of the statutory Rules and the High Court committed error in taking the view that Rules, 1983 were not applicable in the present case.It is also relevant to notice that lower Appellate Court has held that suit of the plaintiff was barred by time it having been filed more than three years after the refusal to allot the land. The High Court has held that the Appellate Court has committed error of law in considering the issue of limitation which was not the question raised before the trial court.No error was committed by the Appellate Court in entering into the issue as to whether application was barred by time. The Appellate Court was well within its jurisdiction in considering the question of limitation. We, however, for the present case need not express any opinion with regard to the question of limitation in view of we having held that plaintiff was not entitled for the decree. Thus, even without entering into the question of limitation we are of the clear opinion that plaintiff was not entitled for the decree as has been granted by the trial court and affirmed by the High Court.