Ashok Vithoba Ruge vs The State Of Maharashtra And The ...
2003 Latest Caselaw 341 Bom

JUDGMENT

R.M. Lodha, J.

1. The subject matter of this writ petition pertains to the land admeasuring 26257 sq.ft. of revision survey No. 599, Hissa No. 6A, situate at Ichalkaranji, District Kolhapur. The petitioner prays that it be declared that the said land stands released from reservation, allotment or designation as open space (play ground) from Ichalkaranji final development plan sanctioned vide notification dated 25.5.1981 and it be further declared that petitioner is entitled to develop this land and respondent No. 2 be directed to restore possession of the said land to the petitioner.

2. The petitioner claims to be owner of the aforesaid land. Originally Revision Survey No. 599, Hissa No. 6A, admeasured 52517 sq.ft. The petitioner had half share to the extent of 26257 sq.ft. therein. Petitioner's cousins had remaining half share in the said land. By notification dated 29.5.64, the State Government sanctioned development plan of Ichalkaranji Town with effect from 1.8.64. In the said plan, the land being Revision Survey No. 599, Hissa No. 6A was reserved as open space. By further notification dated 25.5.81, the revision of the said land continued in the revised development plan with effect from 1.8.81. The petitioner's cousins who had half share in the Revision Survey No. 599, Hissa No. 6A made an application to respondent No. 2 viz. Municipal Council of Ichalkaranji on 26.9.84 for acquiring their land. By letter dated 14.3.85 the respondent No. 2 informed the petitioner as well that they are prepared to purchase his land in revised survey N. 599, Hissa No. 6A and asked the petitioner to give his consent in writing. In response thereto, the petitioner on 20th May, 1985 informed respondent No. 2 that he was agreeable to sell his land at the price payable in accordance with Government rules and respondent No. 2 was requested to proceed further in the matter. The co-owner of land survey No. 599, Hissa No. 6A on 5th August, 1986 sent their consent for selling their land to respondent No. 2 by private negotiation. Respondent No. 2 on 27th August, 1986 adopted resolution for acquisition of land survey No. 599, Hissa No. 6A in the ownership of petitioner and his co-sharer and payment of the price in accordance with Government rules. on 23rd October, 1986, the possession of the petitioner's land was taken by respondent No. 2. After the possession was taken on 23rd October, 1986, the steps for fixation of price of the land in question were taken and the Assistant Town Planning Officer on 15th June, 1987 fixed the price at the rate of Rs. 100/- per sq.mtr.payable to the petitioner and other co-owners. The other co-owners accepted the compensation as was determined on the basis of the price fixed by Assistant Town Planning Officer but the petitioner did not accept. It appears that thereafter petitioner issued notice to respondent No. 2 under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (for short 'MRTP Act') which was served on respondent No. 2 on 6.4.90. It is petitioner's case that no steps for acquisition of the petitioner's land was taken by respondent No. 2 until expiry on 6.10.90 i.e. within six months from the service of reservation lapsed and he is entitled to restoration of the said land.

3. Before the proceed further be it noted that initially, this writ petition was dismissed summarily on 25th January, 1994 by the following order:--

"By a letter dated 20th May 1985 the petitioner agreed to sell his land in question to the Municipal Council, Ichalkaranji at a price to be fixed as per Government rules. This land was reserved as open space. Thereafter the possession of the said land was also taken by the 2nd Respondent on 23rd October, 1986. The Assistant Director of Town Planning by his order dated 15th June 1987 has fixed the price in respect of the said land at Rs. 100/- per sq.mtr. The Petitioner, however, contends that he is entitled to the market value of the said land. he has given a Registered Notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 dated 6th April 1990 (Exh. K in Petition). In view of the Petitioner's letter dated 20th May 1985, no intervention is called for under Article 226 of the Constitution. The Respondents are ready and willing to pay compensation/price of the said land to the Petitioner as fixed by the order dated 15th June 1987.

It may also be noted that by Notification dated 30th March 1993 a minor modification has been made in respect of the said land and has been notified under Section 37(1) of the Maharashtra Regional and Town Planning Act, 1966 as a result of which it is proposed to change the nomenclature of "Open Space" into "Play-ground".

Petition dismissed.

Issuance of certified copy of this order is expedited.

4. Aggrieved by the order of this court dated 25th January, 1994, the petitioner carried the matter to the Supreme Court. The Supreme Court granted special leave and by order dated 5th August, 1994 set aside the order dated 25.1.94, remitted the matter to this court for fresh consideration. The parties were given liberty to amend their pleadings if they so desired. The order dated 5th August, 1994 passed by Supreme Court reads thus--

"ORDER

Special leave granted.

Heard counsel on both sides.

After hearing the learned counsel and perusing the letter dated 14.3.85 and the response dated 20.5.85 we had asked learned counsel to place the relevant rules before us. The learned counsel for the respondents has placed on record a circular dated 8.6.81 issued to the Municipal Council relating to the purchase of lands. The High Court did not have the benefit of this circular to consider wether the same could be treated as Rules; since the petitioner had agreed for the fixation of the price as per rules. We, therefore, suggested to the learned counsel for the parties that since the High Court did not have the benefit of the circular and was also not called upon to consider the impact of the notice under Section 127 of the Maharashtra Regional Town Planning Act and other material which is now placed on the record before us, it would be appropriate if the matter is remitted to the High Court for a fresh consideration in the light of these additional documents and developments. Both the learned counsel appearing for the opposite parties rightly agreed to the suggestion. We, therefore, set aside the impugned order of 25.1.94 and remit the matter to the High Court for a fresh consideration. We would permit the parties to amend their pleadings, if they so desire, so that the additional documents can become part of the record of the High Court. They may do so within fur weeks from today. Since the matter is one which needs to be expedited, we request the High Court to give priority and dispose it of as early as possible. The appeal Will stand disposed of accordingly with no order as to costs."

5. Thereafter, rule was issued by the Division Bench of this court on 20th December, 1994 and it is how the matter has come up for hearing.

6. Mr. Kumbhakoni, learned counsel for the petitioner invited our attention to Sections 126 and 127 of MRTP Act and submitted that Section 126 provides various modes for acquisition of land required for public purpose specified in the plans. Interalia, one of the modes is acquisition of land by an agreement by paying an amount agreed to. The learned counsel for petitioner submitted that in the facts and circumstances of the present case, it cannot be said that petitioner's land was acquired by an agreement by paying an amount agreed and therefore, the petitioner's land was not acquired by agreement within the time stipulated under Section 127. The learned counsel for the petitioner submitted that proceedings for acquisition of petitioner's land were also not commenced either under MRTP Act or under Land Acquisition Act prior to the issuance of notice dated 6.4.90 under Section 127 and since the land was not acquired within six months of the receipt of purchase notice under Section 127 nor any steps were taken for commencement of acquisition of the petitioner's land within six months from the receipt of purchase notice the reservation of petitioner's land lapsed and petitioner is entitled to restoration of possession of the said land and development thereof.

7. On the other hand, Mr. Naik, learned counsel for respondent No. 1 submitted that petitioner's land stood acquired by agreement in the year 1985-86 itself. According to him the price of the land was fixed as per the report of Assistant Town Planner and offered to the petitioner but the petitioner did not accept he same. It is the submission of the learned counsel for respondent No. 2 as a matter of fact that petitioner's land stood acquired much before the purchase notice was given by the petitioner on 6.4.90 and therefore, question of reservation of petitioner's land having been lapsed does not arise.

8. We reflected over the matter thoughtfully and considered the submission of the learned counsel for the parties and the pleadings and the available material.

9. There is no dispute about receipt of the letter dated 14.3.85 by petitioner sent by respondent No. 2. The said letter dated 14.3.85 reads thus-

"No. Eng/5225/84-85 Office of the Municipal Council Ichalkaranji.

Dated - 14.3.1985

To

Shri Ashok Vithoba Ruge,

Ruge/Nemishte,

R/o. Ichalkaranji.

Sub: Ichalkaranji, Taking possession of open Space R.S. No. 599 by Municipality.

Reference: Your application dt. 26.9.84.

With reference to your application cited above you are hereby informed that the Municipality is ready to purchase the open space in R.S. No. 599 from the concerned land owner by paying its price. Hence you are directed to give your consent letter in writing stating that you are ready to sale the said land in such price as may be fixed by the Government as per rules, so that further action regarding valuation etc. may be started.

Sd/-            

Chief Officer,    Municipality Ichalkaranji."

10. The petitioner, thus, by aforesaid letter was called upon to show his willingness to sell his share in the land comprising of revised survey No. 599. Hissa No. 6A on the price that may be fixed as per Government rules. In response thereto, the petitioner sent reply on 20th May, 1985. The said reply reads thus-

"To

The Chief Officer,

Ichalkaranji Municipality

Ichalkaranji.

Application: Taking Ashok Vithoba Ruge Rs/o Ichalkaranji.

Subject: Taking possession of open space R.S. No. 599 in the limits of Ichalkaranji by the Municipality.

Reference: Your L. No. Eng./5224/84.85/dt. 14.3.85.

Sir,

With reference to your letter under reference I, the undersigned beg to state that I am ready to sale the open space as shown by the Municipality in my land R.S. No. 599 within the limits of Ichalkaranji at the price which may be fixed by the Government as per rules. Hence it is requested that the further action may please be taken.

Your faithfully,

Sd/-      

Ashok Vithoba Ruge.

Dated: 20.5.85."

11. The petitioner of his free will and volition by his reply dated 20th May, 1985 showed his readiness to sell his share in the land being survey No. 599, Hiss No. 6A at the price which may be fixed by the Government as per rules. The other co-sharers of revised survey No. 599, Hissa No. 6A also expressed their willingness to sell their share of the land at the price to be fixed as per Government Rules. Admittedly the petitioner voluntarily handed over possession which was taken over by respondent No. 2 on 23rd October 1986. It appears that thereafter respondent No. 2 sent the matter to assistant Town Planning Officer for fixation of the price of the land in question and on 15th June, 1987 the Assistant Director, Town Planning, Kolhapur fixed the price of the land in question at Rs. 100/- per sq. mtr. The Assistant Director, Town Planning took into consideration the land, size, area, surrounding areas before fixation of the market price. The other co-sharers of revised survey No. 599, Hissa No. 6A accepted the compensation at the rate fixed by the Assistant Town Planner. However, the petitioner despite compensation offered to him did not accept the said price. He seemed to have expressed his willingness to accept the compensation without prejudice to his rights. The question that arises before us is: whether in the backdrop of aforesaid facts, can it be said that petitioner's land was acquired by agreement as contemplated under Section 126 or in any case proceedings for acquisition of petitioner's land commenced under MRTP Act prior to service of purchase notice under Section 127 of MRTP Act.

12. The reply sent by the petitioner on 20th May, 1985 to the letter of respondent No. 2 dated 14.3.85 clearly indicates that petitioner expressed his readiness to sell his share in land being R.S. No. 599, Hissa No. 6A at the price that may be fixed by the Government as per rules. Thus, he agreed to sell his land at the price as per Government rules. There are no rules framed as such and reliance is placed by respondent No. 2 on the circular of the State Government issued on 8th June, 1981. The said circular dated 8th June, 1981 provides thus-

"No. MIS 3181/CR.248/III.

Directorate of Municipal Administration, New Administrative Building, 15th Floor, Opp. Mantralaya.

Bombay-400 032.

8th June, 1981.

Sub: Municipal Council, Purchase of lands by the-

CIRCULAR

By this office Circular No. MCB 1575/39/23755/IV dated 31.3.1976 it was directed that whenever the Municipal Councils acquire any property without recourse to the Land Acquisition Act or any other similar law, it should obtain prior approval of the Collector.

2. At the time of inspection of one of the Municipal Councils it was pointed out that much time is consumed in obtaining the approval of the Collector for valuation of the land purchased. The intention behind the above instructions was that the Collector should find out whether the land proposed to be purchased by private negotiation was actually necessary and suitable for the purpose. It was not the intention that Collector should certify the valuation of the land. It is therefore clarified that whenever the Council desires to acquire prior approval of the Collector in regard to suitability of h eland and whether it is actually needed by the Council. On receipt of the approval from the Collector the Municipal Council should obtain the valuation certificate from the Assistant Director of Town Planning.

Sd/-     

(D.N. Capoor)    Director,   

Municipal Administration."

13. What is provided by the said circular as guideline to the concerned municipal council in respect of acquisition of any property without recourse to Land Acquisition Act or any other similar law, is that such acquisition must proceed with prior approval of the Collector so that Collector may examine the suitability of the land and that it is actually need by council. On receipt of the approval from the Collector, as regards valuation of the land so acquired by private negotiation, the valuation certificate is required to be obtained from the Assistant Director of Town Planning. There is no dispute that before the possession of petitioner's land was taken, no approval of the Collector was obtained. However, it appears that subsequently, on 7.9.88, the Collector, Kolhapur granted permission to respondent No. 2 to purchase the land belonging to the petitioner. As a matter of fact what is relevant before us is not the permission of the Collector but the aspect concerning valuation of the land in question because petitioner agreed to sell his land at the price as may be fixed by the Government as per rules. The circular having been issued by the Director of Municipal Administration cannot be treated at par with the rules framed by the State Government for the purpose of fixation of compensation of the land acquired by Municipal Council by private negotiation. Nevertheless, in our considered view, when the petitioner in his reply dated 20th May, 1985 agreed to sell his land at the price to be fixed by the Government as per rules, what was in his mind was the method or the existing procedure on the basis of which the price was to be fixed upon acquisition of his land by private negotiation. It is so because neither of the parties showed us the rules providing for fixation of price by the Government in respect of acquisition of land by private negotiation. The petitioner's reply dated 20th May, 1985 coupled with the overt act whereby he handed over possession of his land to respondent No. 2 on 23rd October, 1986, the only inference that can be drawn is that there was agreement between the petitioner and respondent No. 2 for acquisition of petitioner's land. On the basis of the guideline reflected in the circular dated 8.6.81, the price of petitioner's land was got fixed from the Assistant Director of Town Planning. It is not disputed before us that on the basis of the price fixed by Assistant Director of Town Planning, the compensation was offered to the petitioner on 2nd November, 1988 but the petitioner insisted that he would accept the said amount only under protest. In the circumstances, we have no hesitation in holding that petitioner's land stood acquired under MRTP Act much before the purchase notice dated Section 127 was served upon 2nd respondent. If an expropriated owner agrees to sell his land by negotiation and compensation is offered to such owner, if he does not accept the compensation, it cannot be said that there was no acquisition by agreement as contemplated under Section 126(a).

14. Though it appears that there was some confusion on the part of the respondent No. 2 as to whether the petitioner's land stood acquired under the agreement at one point of time as respondent No. 2 decided to acquire petitioner's land again under Land Acquisition Act but the said decision was later on clarified that the land already stood acquired by agreement under MRTP Act. Be that as it may, when the petitioner's land already stood acquired under MRTP Act, some wrong notion on the part of the respondent No. 2 to acquire the land afresh under Land Acquisition Act shall not alter the legal position.

15. Even if we assume for the sake of argument that acquisition of petitioner's land was not complete by agreement since there was disagreement on the rate of compensation, the facts already indicated by us leave no manner of doubt that the proceedings of acquisition of petitioner's land under MRTP Act commenced way back in the year 1985-86 i.e. much before the purchase notice dated 6.4.90 was served upon the respondent No. 2. A look at Section 127 of MRTP Act would show that in the event of the land reserved, allotted or designated for the purposes specified in the development plan is not acquired by agreement within 10 years from the date on which final regional plan or final development plan comes into force or proceedings for acquisition of such land under MRTP Act are not commenced or proceedings for acquisition of such land under Land Acquisition Act are not commenced within 10 years from the date on which final regional plan or final development plan comes into force, the owner or person interested in the land may serve notice on the planning authority or development authority, as the case may be, and if within six months from the date of service of such notice, the land is not acquired or no steps for commencement of acquisition are taken, the reservation, allotment or designation of such lapses and such land stands released from such reservation, allotment or designation. The final development plan for Kolhapur was notified in the year 1981, to be specific by notification dated 25.5.81. By the communication dated 14.3.85, the respondent No. 2 asked the petitioner whether he was desirous of selling his land on the price that may be fixed by Government as per rules and a positive response by petitioner in his reply dated 25th May, 1985 that he was ready to sell his land as per price that may be fixed by the Government as per rules and his further act in handing over possession of the land on 23rd October, 1986 and the fact that compensation was offered to the petitioner on 2nd November, 1988 leave no manner of doubt that the petitioner's land stood acquired and in any case the proceedings for acquisition commenced under MRTP Act way back in the year 1985-86 and, therefore, the purchase notice served upon respondent No. 2 on 6.4.90 was of no worth, use and legal significance. In the circumstances, therefore, the reliefs prayed for by the petitioner that it be declared that reservation in respect of petitioner's land in development plan has lapsed and that petitioner's land stands released from reservation from the final development plan cannot be granted nor petitioner is entitled to restoration of possession of his land.

16. Before we close, we would like to record that we granted opportunity to the learned counsel for the petitioner and the learned counsel for respondent No. 2 to enable their respective parties to reach some amicable settlement but despite such opportunity, nothing concrete fructified and the parties could not arrive at amicable settlement.

17. If the petitioner so desires it is always open to him to receive the compensation from respondent No. 2 on any working day from 11 a.m. to 4.30 p.m.

18. In the result, the writ petition is dismissed. Rule is discharged. No costs.

Certified copy expedited.