sa330.04
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.330 of 2004
Municipal Council, Washim,
through and by its Chief
Officer, Municipal Council, Washim,
Tq. & Distt. Washim. ..... Appellant
Org. Defendant No.1
Versus
Inderjitsingh Balwantsingh
Sachdeo, since dead, through
legal representatives :
1. Kulwantkaur widow of
Inderjitsingh Sachdeo,
aged about 48 years,
occupation - household work,
2. Gurukiratkaur daughter of
Inderjitsingh Sachdeo,
aged about 31 years,
occupation - household,
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3. Ku. Manrupkaur daughter of
Inderjitsingh Sachdeo,
aged about 27 years,
occupation - household,
4. Gurudeepsingh son of
Inderjitsingh Sachdeo,
aged about 23 years,
occupation - student,
all residents of Patni Chowk,
Washim, Tq. & Distt. Washim.
5. Avatarsingh Balwansingh
Sachdeo,
aged about 45 years,
6. Gurumukasingh Hajursingh Gulati,
aged about 58 years,
7. Ramesh Vinayakrao Kathale,
aged about 53 years,
8. Vishal Dilip Kalamkar,
aged about 53 years,
9. Subhash Shrikumar Kalamkar,
aged about 53 years,
all respondent nos. 5 to 9 are
residents of Patni Chowk, Washim,
Tq. & Distt. Washim.
10. Shri Hasmukh Mohanbhai Dewani,
....Appeal abated as per Court's
order dated 28-2-08. ..... Respondents
Org. Plaintiffs
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*****
Mr. R. Gehlot, Adv., instructed by Mr. A. M. Ghare, Adv., for the
appellant.
Mr. D. V. Chauhan, Adv., for respondent nos. 1 to 9.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 14th December, 2017 ORAL JUDGMENT :
01. This appeal filed under Section 100 of the Civil Procedure Code, 1908 by the defendant no.1 has been heard on the following substantial question of law:-
"Whether the appellant/Municipal Council is free to utilize the land acquired for purposes other than one for which it is acquired, shall be the substantial question of law in the present Second Appeal?"
02. Certain lands situated within the limits of Municipal Council, Washim, came to be acquired for construction of a hospital in proceedings under the Land Acquisition Act, 1894. The Award in question was passed on 14th August, 1986. According to the plaintiffs ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:20 ::: sa330.04 4 whose lands were acquired under the said Award, the land in question was not utilized for the purpose for which it came to be acquired. On 29th March, 1990, a Revised Development Plan was published and the reservation was altered to Community Centre and Central Library. According to the plaintiffs, the Municipal Council had prior thereto invited tenders for construction of a compound wall for the library and hence some of the plaintiffs approached this Court and filed Writ Petition No. 815 of 1990. In that Writ Petition, a statement was made on behalf of the Municipal Council that the acquired land would be used for constructing the dispensary. As the Municipal Council undertook the work of construction of the library, suit was filed seeking a declaration that the action of calling tenders for constructing the library was contrary to the statement made before this Court. Permanent injunction to restrain the Municipal Council from doing so was also prayed for.
03. According to the Municipal Council, after acquisition of the land, the same vested in the Municipal Council. The Revised Development Plan was duly sanctioned and use of the acquired land for purposes of a library was in accordance with law. The plaintiffs having lost their ownership by virtue of acquisition of the lands had no locus to challenge actions of the Municipal Council. ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:20 :::
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04. The trial Court after considering the evidence on record held that the Civil Court had no jurisdiction to grant the relief as sought and, therefore, dismissed the suit. The appellate Court, however, held that the action of the Municipal Council was contrary to the undertaking given by it before this Court. It, therefore, decreed the suit and restrained the Municipal Council from carrying out any construction for the purpose of a library. Being aggrieved, the Municipal Council has filed the present appeal.
05. Shri R. Gehlot, learned counsel for the appellant, submitted that the plaintiffs had no locus to file the suit in question, inasmuch as they had no title to the acquired lands. After the acquisition proceedings became final, the land vested in the Municipal Council and the original owners lost their ownership right. The plaintiffs not being in possession could not have filed a suit for declaration simplicitor. In absence of any prayer for possession, the relief of declaration could not have been sought. For said purpose, the learned counsel placed reliance on the decision of Honourable Supreme Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhgunagar Vs. Chandran & others [2017 ALL SCR 604]. It was then submitted that the Govt. Resolution dated 10th October, 1973 on ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:20 ::: sa330.04 6 the basis of which the plaintiffs were claiming right had ceased to operate. As per the settled legal position, the public purpose for which the land was acquired could be changed for some other public purpose. As the Revised Development Plan was duly approved, the change in purpose from dispensary to library was legally permissible. In that regard, reliance was placed on the decisions of Honorable Supreme Court in Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt. Ltd. & others [AIR 1997 SC 482] and this Court in Babasaheb Dagadu Bhurale Vs. State of Mah. & another [2003 (2) Mh.L.J. 689]. It was, thus, submitted that the Municipal Council was free to utilize the acquired land for any other public purpose.
06. Shri D. V. Chauhan, learned counsel for the respondents - plaintiffs supported the impugned judgment. According to him, the Municipal Council having given an undertaking before this Court that the land in question would be utilized for constructing a dispensary, it was not permissible for it to use the land for some other purpose. As the land of the plaintiffs had been acquired, they had locus to file the suit. The appellate Court rightly considered the undertaking given by the Municipal Council and the decree as passed did not call for any interference.
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07. I have heard the learned counsel for the parties at length and I have perused the impugned judgment.
08. It is not in dispute that the lands of the plaintiffs came to be acquired by virtue of Award dated 14th August, 1986. Though the acquisition was for the purpose of constructing a dispensary, by virtue of Revised Development Plan dated 29th March, 1990, that purpose was changed and the land was sought to be utilized for constructing a library. The legal position with regard to change of use from one public purpose to another stands settled as has been observed by the Honourable Supreme Court in Municipal Corporation of Greater Bombay [supra]. It has been held that acquisition made validly does not become invalid by change of user or change of the purpose of use. In the present case, the Revised Development Plan having been approved, there could not be any challenge in the civil suit to a change of the public purpose. Though it is true that a statement came to be made on behalf of the Municipal Council in Writ Petition No. 815 of 1990 that the land would be used for construction of a dispensary, considering the aforesaid legal position, the Municipal Council cannot be bound by that statement as along as the purpose for which the land was sought to be used remained a public purpose. It cannot be lost ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:20 ::: sa330.04 8 sight of that just prior thereto, on 29th March, 1990, the Revised Plan had been duly sanctioned.
09. It is to be noted that the plaintiffs had relied upon Govt. Resolution dated 10th October, 1973 for urging that if the acquired land was not utilized for a period of three years, the land owners were entitled for its return. This Govt. Resolution has been found to be contrary to the latter decisions of the Supreme Court and, therefore, same cannot support the case of the plaintiffs.
10. The submission that plaintiffs had no locus to question the action of the Municipal Council also deserves acceptance as admittedly the plaintiffs were not in possession and had sought the relief of declaration. The law in this regard is also well settled and same has been reiterated in Executive Officer, Arulmiguu Chokkanatha Swamy Koil Trust, Virudunagar [supra].
11. In view of aforesaid discussion, the judgment of the appellate Court being contrary to the law of the land cannot be sustained. Same is, therefore, liable to be set aside. The substantial question of law is answered by holding that the Municipal Council is free to utilize the land acquired for the purpose other than the one for ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:20 ::: sa330.04 9 which it was acquired.
12. In view of foregoing discussion, judgment dated 13th February, 2004 in Regular Civil Appeal No. 8 of 2001 is quashed and set aside. The judgment of the trial Court in Regular Civil Suit No. 126 of 1996 is restored. There would be no order as to costs.
Judge
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