Municipal Council Thr.& By Its ... vs Inderjitsingh Balwantsingh ...
2017 Latest Caselaw 9627 Bom

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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

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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.

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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

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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

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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

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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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