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2019 DIGILAW 358 (BOM)

Sadashiv Madhav Shelke v. State of Maharashtra

2019-02-05

P.R.BORA

body2019
JUDGMENT : P.R. BORA, J. 1. The appellant has challenged the Judgment and Award passed in LAR No. 26 of 2012 decided by the Court of Civil Judge, Senior Division at Kopargaon on 10.03.2016 by filing the present appeal. 2. The aforesaid reference application was filed by the appellant (hereinafter referred to as the 'claimant') seeking enhancement in the amount of compensation as was offered to him by the Special Land Acquisition Officer (hereinafter referred to as the 'SLAO'). The land Survey No. 3/27 bearing City Survey No. 908 admeasuring 258.18 Sq. Mtrs situated at village Shirdi, Tal. Rahata, Dist. Ahmednagar was owned by the claimant. The respondents have acquired the said land for Pimpalwadi to Nimgaon shiv road, which was the part of and was shown in the Development Plan prepared by Shirdi Municipal Council. The notification in that regard under Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 was published in the Official Gazette on 14.01.2008, whereas the Award under Section 11 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') came to be passed on 04.11.2010. 3. In the Award so passed, though the market value of the land acquired of the claimant was fixed at Rs. 6,417/- per sq. meter, the SLAO offered nominal compensation of Rs. 1/- to the claimant. Dissatisfied with the amount of compensation so offered, the claimant made Reference under Section 18 of the Act seeking enhancement in the amount of compensation and the same was adjudicated by the Court of Civil Judge, Senior Division at Kopargaon. The said Court is hereinafter referred to as the 'Reference Court'. 4. In the reference application, the claimant had claimed the compensation at the rate of Rs. 10,000/- per sq. meter. The claim so made by the claimant was opposed by the respondents. In order to support his case, the claimant himself deposed before the Reference Court. The respondents did not adduce any evidence. The Reference Court, after having considered the oral and documentary evidence brought on record, has rejected the reference application. Aggrieved by, the claimant has preferred the present appeal. 5. In order to support his case, the claimant himself deposed before the Reference Court. The respondents did not adduce any evidence. The Reference Court, after having considered the oral and documentary evidence brought on record, has rejected the reference application. Aggrieved by, the claimant has preferred the present appeal. 5. Shri A.K. Gawali, learned Counsel appearing for the appellant - claimant submitted that, the Reference Court has manifestly erred in holding that, since the acquired land was shown reserved for the purpose of Development Plan Road in the lay out got sanctioned by the appellant - claimant, no more compensation than the nominal compensation of Rs. 1/- was payable to the appellant - claimant. Relying on the Judgment of the Division Bench of this Court in the case of State of Maharashtra Vs. Bhimashankar Sidramappa Chippa, 2009 (5) Mh. L.J. 76, the learned Counsel submitted that, the land which is shown to be reserved for the purpose of DP road in a lay out sanctioned by the Municipal Council cannot be acquired by the Municipal Council free of cost merely because a condition is imposed in the order of sanctioning lay out that a nominal compensation of Rs. 1/- only would be payable for such acquisition. 6. The learned Counsel also referred to and relied upon the Judgment of the Hon'ble Apex Court in the case of Pt. Chet Ram Vashist (dead) by L.Rs. Vs. Municipal Corporation of Delhi, AIR 1995 SC 430 and more particularly invited my attention to para-6 of the said Judgment. The learned Counsel submitted that, in case of State of Maharashtra Vs. Bhimashankar Sidramappa Chippa (cited supra) the Division Bench of this Court has reiterated the law laid down by the Hon'ble Apex Court in the said Judgment. The learned Counsel also referred to an another judgment of the Division Bench of this Court in the case of Vrajlal Jinabhai Patel Since deceased through his L.Rs. Smt. Jagrati Vrajlal Patel and another Vs. State of Maharashtra and others, 2003 (3) Mh. L.J. 215, wherein it is held that, no law exists under which ownership in open space under the lay out could be vested or transferred to the Municipal Council free of cost. The learned Counsel submitted that, the claimant had demanded FSI of the acquired land, however, the request so made by him has not been considered. L.J. 215, wherein it is held that, no law exists under which ownership in open space under the lay out could be vested or transferred to the Municipal Council free of cost. The learned Counsel submitted that, the claimant had demanded FSI of the acquired land, however, the request so made by him has not been considered. On the aforesaid grounds, learned Counsel prayed for setting aside the Judgment and award passed by the Reference Court and consequently prayed for the compensation for his acquired land at the rate of Rs. 10,000/- per Sq. Mtr. 7. Shri A.V. Hon, learned Counsel appearing for respondent no. 2 supported the impugned Judgment and Award. The learned Counsel submitted that, since in the lay out got sanctioned by the claimant of the land City Survey No. 908 the portion admeasuring 258.18 sq. meter was shown reserved for the Development Plan road and claimant had agreed at the time of getting sanctioned the said lay out to handover the possession of the said portion of land by accepting nominal compensation of Rs. 1/-, the claimant had no right to make any grievance against the nominal compensation of Rs. 1/- offered to him towards the acquisition of the said land. The learned Counsel submitted that, the authorities relied upon by the learned Counsel for the appellant would not apply to the facts involved in the present case. The learned Counsel, therefore, prayed for dismissing the appeal. 8. I have given due consideration to the submissions made by the learned Counsel appearing for the respective parties. I have perused the impugned Judgment and the other material on record. It is not in dispute that, the claimant had got sanctioned the lay out of his land from out of which the subject portion admeasuring 258.18 Sq. Mtrs has been compulsorily acquired. It is also not in dispute that, the aforesaid portion was shown in the said sanctioned lay out as reserved for the Development Plan road. Perusal of the impugned Judgment reveals that, the Reference Court has refused to enhance the amount of compensation as demanded by the claimant on the ground that, the claimant has no right to claim the compensation of the area which is shown to be reserved for the purpose of road in the sanctioned lay-out. Perusal of the impugned Judgment reveals that, the Reference Court has refused to enhance the amount of compensation as demanded by the claimant on the ground that, the claimant has no right to claim the compensation of the area which is shown to be reserved for the purpose of road in the sanctioned lay-out. The Reference Court has referred to Sections 44 to 47 of the Maharashtra Regional and Town Planning Act, 1966 and has held that, the Planning Authority has power to impose condition while sanctioning the lay out and if at all the claimant was aggrieved by the condition so imposed, the remedy for the claimant was to file an appeal against the condition so imposed by the Planning Authority while sanctioning the lay out. 9. The reason as has been assigned by the Reference Court is, apparently, unsustainable. The claimant had cited the judgment of the Division Bench of this Court in the case of State of Maharashtra Vs. Bhimashankar Sidramappa Chippa as well as the Judgment of the Hon'ble Apex Court in the case of Pt. Chet Ram Vashist Vs. Municipal Corporation of Delhi. However, the Reference Court has failed in understanding and appreciating the import of the said judgments. 10. In the case of Pt. Chet Ram Vashist Vs. Municipal Corporation of Delhi (cited supra) though the provisions under the Delhi Municipal Corporation Act were under consideration, the ratio laid down in the said Judgment would squarely apply to the facts of the present case. In the said matter, the Hon'ble Apex Court was required to consider "Whether spaces reserved in a lay out plan for public purpose such as parks, school etc., would vest in the Municipal Corporation free of costs?" It was the contention of the Delhi Corporation that, there was a specific resolution passed by the Corporation directing the owner to transfer the spaces reserved for tube well, school and park in its favour free of costs and such condition was also imposed while sanctioning the lay out of the subject land. The corporation has taken the support of the provision under Section 313 of the Delhi Municipal Corporation Act, 1957. The corporation has taken the support of the provision under Section 313 of the Delhi Municipal Corporation Act, 1957. The Hon'ble Apex Court while rejecting the contention of the Municipal Corporation held that, "Section 313 which empowers the Commissioner to sanction a lay out plan, does not contemplate vesting of the land earmarked for a public purpose to vest in the Corporation or to be transferred to it. The requirement in law of requiring an owner to reserve any site for any street, open space, park, recreation ground, school, market or any other public purpose is not the same as to claim that the open space or park so earmarked shall vest in the Corporation or stand transferred to it. Even a plain reading of sub-sec. (5) indicates that the land which is subject matter of a lay out plan cannot be dealt with by the owner except in conformity with the order of the Standing Committee. In other words the section imposed a bar on exercise of power by the owner in respect of land covered by the lay out plan. But it does not create any right or interest in the Corporation in the land so specified. The resolution of the Standing Committee in the instant case, therefore, that the area specified in the lay out plan for the park and school shall vest in the Corporation free of cost, was not in accordance with law." 11. Relying upon the aforesaid Judgment of the Hon'ble Apex Court, it was held by the Division Bench of this Court; firstly in the case of Vrajlal Jinabhai Patel Vs. State of Maharashtra and others (cited supra) and thereafter in the case of State of Maharashtra Vs. Bhimashankar Sidramappa Chippa that "No existing law empowers the planning authority or the Chief Executive Officer of any municipality or any municipal corporation to impose a condition that an open land in a layout required to be kept as such for the benefit of the plot holders in the layout or the general public would vest in the planning authority or the municipality or the municipal corporation free of cost." 12. In fact, the present appellant stands on a better footing. In fact, the present appellant stands on a better footing. It is not in dispute that, when the appellant applied for and got sanctioned the lay out of the subject land, the Development Plan, prepared by Shirdi Nagar Panchayat, was already in existence and in the said Development Plan, the Pimpalwadi Nimgaon shiv road was shown to be passing from the subject land owned by the claimant. It is, thus, evident that, even if the appellant would not have applied for sanction of the lay out of the subject land and had the Shirdi Nagar Panchayat to acquire the land shown to be reserved for Pimpalwadi to Nimgaon shiv road, the respondents could not have avoided the liability to pay the compensation to the appellant at the market rate of the said land on the date of its acquisition. 13. As noted herein above, the lay out of the subject land was submitted for sanction subsequent to finalization of the Shirdi Development Plan. In the circumstances, while preparing the lay out of the subject land, the appellant was bound to exclude the said land shown to be reserved for Development Plan road. It is not in dispute that, in the lay out prepared by the appellant, the internal roads, open spaces and the other spaces for public amenities like school, play ground etc., were earmarked excluding the portion admeasuring 258.18 sq. mtrs, which was shown to be reserved for Development Plan road. 14. As has been discussed in the judgments in the case of Pt. Chet Ram Vashist (dead) by L.Rs. Vs. Municipal Corporation of Delhi and State of Maharashtra Vs. Bhimashankar Sidramappa Chippa (cited supra) even the spaces reserved as open spaces or for public amenities like play grounds, school etc., also cannot be acquired free of costs and the Municipal Corporation or the Municipal Council, as the case may be, has to pay the market price of the said land. As has been further observed by the Division Bench, in such a case, the owner of the land would hold the said reserved spaces in trust for all the plot holders in the lay out for whose benefit they are kept open. 15. In the instant case, as is revealing from the record and as I have discussed herein above, before preparation of the lay out, the area admeasuring 258.18 sq. 15. In the instant case, as is revealing from the record and as I have discussed herein above, before preparation of the lay out, the area admeasuring 258.18 sq. meter was shown to have been reserved from out of the land of the appellant for the Development Plan road. In no case, the respondents could have acquired the said land without paying the compensation at the market rate of the said land on the date of its acquisition. 16. It has to be stated that, under the provisions of the MRTP Act, some conditions may be imposed by the sanctioning authority insofar as internal roads and the open spaces reserved in the lay out are concerned. However, the reservations laid for Development Plan road are concerned, the acquiring body has to pay the compensation equivalent to the market value of the said portion while acquiring the said portion. The learned Reference Court has failed in appreciating the relevant legal provisions and has also failed in appreciating the import of the judgments, which were cited before it. 17. For the reasons recorded above, the finding given by the Reference Court, which has resulted in dismissal of the reference application cannot be sustained and deserves to be set aside. It is accordingly set aside. Consequently it is held that the appellant is entitled to receive the compensation for acquisition of the subject land at the market price of the said land on the date of its acquisition. 18. In view of the finding recorded by it that, the appellant was not entitled for any compensation over and above the nominal compensation of Rs. 1/-, the Reference Court has not dealt with the issue of market value of the acquired land on the date of its acquisition. The appellant had claimed the compensation at the rate of Rs. 10,000/- per sq. meter in the application filed by him. Since the aforesaid issue was not at all dealt with by the Reference Court, the normal course, in such case, would be to remit the matter to the Reference Court to decide the said issue and determine the market value of the acquired land on the date of its acquisition by giving adequate opportunity to the parties to the lis. Since the aforesaid issue was not at all dealt with by the Reference Court, the normal course, in such case, would be to remit the matter to the Reference Court to decide the said issue and determine the market value of the acquired land on the date of its acquisition by giving adequate opportunity to the parties to the lis. However, during the course of the argument, the learned Counsel for the appellant, on instructions, made a statement that, the appellant is satisfied with the market value as has been determined by the SLAO at the rate of Rs. 6417/- per sq. meter. It is not in dispute that, in the Award, the SLAO has determined the market value of the acquired land at the aforesaid rate. In the circumstances, there appears no reason for remanding the matter to Reference Court and the respondents can be directed to pay the compensation to the appellant of the acquired land at the rate of Rs. 6417/- per sq. meter with all statutory benefits provided under the Land Acquisition Act. Order accordingly. 19. The appeal stands allowed in the aforesaid terms.