Smt. Sheela Ramchandra Tikhe vs Nagpur Improvement Trust Through ...
2017 Latest Caselaw 694 Bom

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           NAGPUR BENCH, NAGPUR

                SECOND APPEAL NO.122 OF 2015

Smt. Sheela Ramchandra Tikhe,
Aged about 77 years,
R/o Wamanrao Lane, 
Sitabuldi, Nagpur.                                      ... Appellant

       Versus

Nagpur Improvement Trust,
Through Its Chairman,
Near Liberty Cinema,
Nagpur.                                                 ... Respondent


Shri A.M. Gordey, Senior Advocate, with Shri R.L. Khapre, Advocate, 
assisted by Shri A.J. Bhoot, Advocate for Appellant.

Shri S.K. Mishra, Senior Advocate, with Shri G.A. Kunte, Advocate, 
assisted by Shri K.C. Deogade, Advocate for Respondent.



    CORAM : R.K. DESHPANDE, J.

    DATE OF RESERVING THE JUDGMENT        : 6TH MARCH, 2017

    DATE OF PRONOUNCING THE JUDGMENT : 14th MARCH, 2017 




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   JUDGMENT :

1. The appellant-plaintiff was the owner of the lands Khasra

No.9/1 admeasuring 29.26 acres, Khasra No.9/2 admeasuring

7 acres, and Khasra No.11 admeasuring 8.35 acres. Thus, the total

area was of 44.61 acres. The respondent-defendant is the local

authority, constituted under the Nagpur Improvement Trust Act,

1936, which issued a notification under Section 39 of the said Act

for acquiring the entire 44.61 acres of land for the purposes of

Drainage and Sewerage Scheme Part-II on 27-11-1953. The matter

was compromised and the appellant-plaintiff accepted the

compensation of Rs.23,500/-. Accordingly, an award was passed on

31-12-1962. The compensation was paid and the possession was

taken over by the defendant-Nagpur Improvement Trust ("NIT").

Thus, it is an undisputed factual position that by virtue of such

acquisition, the entire land admeasuring 44.61 acres vested in the

NIT and it became absolute owner of it free from all encumbrances,

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with a right to dispose it of in accordance with law.

2. It seems that the NIT found that the lands acquired by it

under the various schemes became surplus and hence a policy

decision was taken by the Board Resolution dated 3-5-1968

at Exhibit 113 on record for disposal of the land to the owners on

lease by charging the determined premium and the ground rent.

The NIT accordingly invited applications from the owners of the

land for re-allotment on lease. The appellant-plaintiff filed such

application dated 3-9-1975 for re-allotment of the entire 44.61 acres

of land on lease on the basis of the terms and conditions mentioned

in the Board Resolution at Exhibit 113. The NIT considered all

these applications and passed a resolution on 6-10-1975 at

Exhibit 106 to re-allot the entire land of 44.61 acres to the

appellant-plaintiff on the terms and conditions stipulated therein in

accordance with the Board Resolution at Exhibit 113. This decision

was communicated to the appellant-plaintiff by the communication

dated 16-10-1975, marked as Exhibit 57, determining the total

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premium of Rs.35,250/- for re-allotment of 44.61 acres of land.

3. It seems that the appellant-plaintiff made certain

representation to the NIT for reducing the amount of premium and

expressed a clear intention in the communication dated 18-12-1976

at Exhibit C-71 to deposit the amount of first installment of

Rs.3,525/-. This was also reiterated in the communication

dated 2-3-1982 at Exhibit C-75. In response to the communication

at Exhibit C-75, the NIT informed the appellant-plaintiff vide its

communication dated 9-6-1982 at Exhibit 59 that the request of the

appellant-plaintiff for allotment of the land measuring about

24 acres out of 44.61 acres has been considered, and hence for

allotment of 24 acres of land, the revised premium would be

Rs.19,230/-, out of which, the first installment of 10% will have to

be paid immediately. Thereafter, on 9-2-1989, a lease agreement

at Exhibit 64 in respect of 24 acres of land was executed between

the NIT and the appellant-plaintiff on the basis of the

communication dated 6-11-1982 at Exhibit 61 issued by the NIT.

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The possession of 24 acres of land was also handed over to the

appellant-plaintiff on 26-11-1982. The lease commenced from

11-11-1982 and it was for a period of 30 years ending on

31-3-2013.

4. In spite of repeated reminders, the NIT did not execute the

lease-deed in respect of remaining 20.61 acres of land in favour of

the appellant-plaintiff, and hence Regular Civil Suit No.2515 of

1989 was filed on 15-12-1985 claiming the reliefs as under :

"(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 required by 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,

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Umrer Road, Nagpur to the plaintiffs land is not required by the defendant for its scheme and the defendant be permanently restrained from making offer of plaintiff's remaining suit land to anybody else in any manner and under any pretext.

(d) Declare that the plaintiff's suit land i.e. 20.6 acres of land in Survey Nos.9/1, 11, 9/2 of Mouza Godhani, Umrer Road, Nagpur, has been 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."

5. The questions involved before the Courts below were

three-fold - (i) whether the plaintiff acquired the right to get

re-allotment of remaining 20.61 acres of land? (ii) whether the

defendant-NIT was avoiding to re-allot and execute lease-deed in

respect of the suit land to the plaintiff? and (iii) whether the plaintiff

has established the payment of premium for re-allotment of land of

20.61 acres? The Trial Court records the finding that the

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entitlement of the appellant-plaintiff for allotment of the entire land

of 44.61 acres was established on the basis of the Board Resolution

dated 3-5-1968 at Exhibit 113, the decision of the NIT taken on

6-10-1975 at Exhibit 106 to allot 44.61 acres of land to the plaintiff,

and the communication of allotment of such land issued by the NIT

on 16-10-1975 at Exhibit 57. The Trial Court holds that the total

premium payable was of Rs.35,525/- and the appellant-plaintiff had

paid an amount of Rs.19,230/- and the balance remained to be paid

is of Rs.16,295/-.

6. The Trial Court passed a decree on 4-11-2003 in favour of

the appellant-plaintiff, and the operative part of the judgment

delivered, is reproduced below :

               "i]             The suit is decreed with costs.

               ii]       It is hereby declared that the plaintiff is entitled  

for re-allotment of remaining 20.61 acres suit land, described in para 1 of the plaintiff, on the same terms and conditions mentioned in Exs.106 and 57.

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iii] The plaintiff is hereby directed to deposit remaining premium amount of Rs.16,295/- along with 10% p.a. interest from 16.10.1975 till the date of payment, with N.I.T. within two months from the date of this order, failing which the suit shall stand dismissed.

iv] The N.I.T. is directed that on depositing the said amount by the plaintiff, execute the lease-deed of the suit land admeasuring 20.61 acres in favour of the plaintiff on the same lines of the lease deed dt.9.2.89 (Ex.64).

v] Decree be drawn up accordingly."

7. The lower Appellate Court relies upon several decisions of

the Apex Court to hold that once the land gets vested in the NIT by

way of statutory provisions, free from all encumbrances, there was

no vested right in the plaintiff to seek re-allotment of such land, and

it was open for the NIT to dispose it of in accordance with law or to

utilize it for any other purpose. The lower Appellate Court relies

upon the provision of Rule 5 of the Nagpur Improvement Trust

Land Disposal Rules, 1955 and holds that the allotment of land by

the NIT can only be for the purposes and the manner mentioned

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under the said Rules. It holds that there was no right of re-allotment

of land in favour of the appellant-plaintiff, and even if it is

considered to be a suit for specific performance of contract, the

cause of action arose on 16-10-1975 and the suit filed on

15-12-1989 was beyond the period of limitation of three years, as

prescribed under Article 54 of the Limitation Act. The lower

Appellate Court allows Regular Civil Appeal No.632 of 2007 on

26-8-2014 and dismisses the suit, setting aside the decree passed by

the Trial Court. Hence, this second appeal by the original plaintiff.

8. On 20-6-2016, this Court passed an order, admitting the

second appeal and framing the substantial questions of law as

under :

" Heard Shri Bhoot, the learned counsel appearing for the appellant and Shri S.K. Mishra, learned Senior Advocate, assisted by Shri Deogade, Advocate, appearing for respondent-Nagpur Improvement Trust.

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The following substantial questions of law arises for consideration by this Court.

(I) 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 terms of Board Resolution dated 03.05.1968, i.e. decision taken by the respondent much prior to the framing of Rules of 1983?

(II) 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?

Admit

The learned counsel appearing for the respondent waives service of notice.

Hearing is expedited."

9. Shri S.K. Mishra, the learned Senior Advocate appearing

for the respondent-NIT, invited my attention to the decisions of the

Apex Court in the cases of State of Kerala and others v.

M. Bhaskaran Pillai and another, reported in AIR 1997 SC 2703;

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and Smt. Sulochana Chandrakant Galande v. Pune Municipal

Transport & Ors., reported in AIR 2010 SC 2962, relied upon by

the lower Appellate Court, and has urged that once the land gets

vested in the NIT, the land-owner ceases to have any right of

re-allotment even if it is found that the purpose for which the land

was acquired no longer survives.

10. In the present case, it is not in dispute that the land in

question stood vested in the NIT, free from all encumbrances. If

the land is found to be surplus or not necessary for the purpose for

which it was acquired, then it was possible for the NIT

to dispose of such land in favour of the owner on lease in

accordance with the Nagpur Improvement Trust Land Disposal

Rules, 1955 having a statutory character. If the disposal is made for

the purpose, or to the persons, and in the manner provided under the

statutory Rules, then the question of applicability of the ratio of the

decisions delivered by the Apex Court, cited supra, does not at all

arise.

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11. Though the suit land vested in the NIT, a policy decision

was taken by it, contained in the Board Resolution at Exhibit 113,

for disposal of land to the owners from whom it is acquired on

lease, by charging the determined premium and the ground rent.

Accordingly, the applications were invited from all such persons,

including the appellant-plaintiff, which is apparent from the

position brought on record for re-allotment of land on lease. By the

Resolution at Exhibit 106, a decision was taken to re-allot the entire

land of 44.61 acres to the appellant-plaintiff on the terms and

conditions stipulated therein in accordance with the Board

Resolution at Exhibit 113. By issuing communication at

Exhibit 57, the total premium of Rs.35,250/- was determined for

re-allotment of 44.61 acres of land to the appellant-plaintiff.

12. It is not in dispute that when the Board Resolution was

passed on 3-5-1968, the Nagpur Improvement Trust Land Disposal

Rules, 1955 were in force and, therefore, it has to be presumed that

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the policy decision to re-allot the land to the land-holders/owners

was as per the said Rules. It was nowhere the case of the NIT that

the disposal in favour of the appellant-plaintiff was not in

accordance with such Rules or that the Board Resolution was not in

conformity with such Rules. The decision to re-allot 44.61 acres of

land to the appellant-plaintiff is in exercise of the statutory power

and, therefore, the precedents relied upon by Shri Mishra do not

apply to the facts of this case. The allotment created a legal right in

favour of the appellant-plaintiff to get lease of the entire land of

44.61 acres, and the finding rendered by the Trial Court regarding

entitlement of the appellant-plaintiff cannot be faulted with. Such

decision of the NIT becomes enforceable in the Court of law. The

question of law at serial No.(II) is answered accordingly.

13. There was some dispute as to the allotment of 20.61 acres

of land to the appellant-plaintiff. According to the NIT, only

24 acres of land was allotted and accordingly a lease-deed in

respect of it was executed on 9-2-1982 at Exhibit 64 and the

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possession of the said land was delivered to the appellant-plaintiff

on 26-11-1982. It is not understood as to how the entitlement of the

appellant-plaintiff for re-allotment of the land is disputed,

particularly when 24 acres of land was allotted to the

appellant-plaintiff and a lease-deed in respect of it was executed in

conformity with the Board Resolution at Exhibit 113. Be that as it

may, in fact there is allotment of the entire 44.61 acres of land to

the appellant-plaintiff on lease, which is absolutely clear from the

contents of the Resolution of the NIT passed on 6-10-1975 at

Exhibit 106 and the communication dated 16-10-1975 at Exhibit 57

issued pursuant thereto, determining the premium of Rs.35,525/-

payable in respect of 44.61 acres of land. It cannot, therefore, be

said that there was any legitimate dispute on the question of

allotment of 44.61 acres of land to the appellant-plaintiff.

14. In para 4 of the plaint, the specific averments are as under :

"4. That, on being allotted 24.00 acres of land out of the total 44.61 acres of land; the plaintiff by the letter

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dated 22.08.1983 again made a request to the defendant for re-allotment of remaining 20.61 acres of land to her followed by reminders thereafter from time to time. The plaintiff has already made the payment of all the dues of the defendant from time to time and again requested the defendant by the letter dated 11.10.1985 for release of remaining 20.61 acres of land to her. The defendant by its letter dated 31.12.1986 directed the plaintiff to make payment of Rs.4,514.92 for allotment of remaining 20.61 acres of land and the plaintiff arranged the payment of this amount also for re-allotment of her remaining 20.61 acres of land to her followed by the reminder dated 22.11.1988."

The reply to the aforesaid averments is contained in para 4 of the

written statement, which is reproduced below :

"4. As to para 4 :- It is denied that the plaintiff has requested this defendant by letter dated 22.8.1983 for allotment of remaining 20.61 acres of land. Letter dated 11.10.1985 of the plaintiff is a matter of record and need no comments. It is denied that the defendant by its

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letter dated 31.12.1986, directed the plaintiff to make the payment of Rs.4,514.95 for allotment of remaining 20.61 acres of land. It is denied that the plaintiff has made the payment of above amount for re-allotment of remaining 20.61 acres of land. On the contrary, it is submitted that this defendant has asked to deposit the amount of Rs.4,514.95 towards arrears of premium, interest and ground rent amounting to Rs.4,514.95. It is further submitted that this amount was not accepted or asked from the plaintiff for allotment of remaining 20.61 acres of land. Letter dated 22.11.1988 is a matter of record and need no comments."

Though the letter dated 11-10-1985 is not produced on record, it

was for release of remaining 20.61 acres of land to the

appellant-plaintiff and the letter dated 31-12-1986 issued to the

appellant-plaintiff by the NIT was to make the payment of

Rs.4,514.95 for allotment of remaining 20.61 acres of land. These

facts are not disputed in the written statement, but the reply is that it

is a matter of record.

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15. The NIT has examined one Tikaram Sitaram Khandate,

DW 1, working as Senior Clerk in the Recovery Department. In his

examination-in-chief, he states that the appellant-plaintiff has not

deposited the premium for 20.61 acres of land, though he admits

that Exhibit 88 is the receipt of Rs.4,514.95. Probably, it is the case

of the NIT that the appellant-plaintiff, by issuing the

communication dated 2-3-1982 at Exhibit C-75, requested for

allotment of the reduced area of land because of the financial

difficulties. However, in the cross-examination, this witness of the

defendant-NIT clearly admits that the claim in this communication

at Exhibit C-75 is not for restricted area of 24 acres. He further

admits that from 1975, the appellant-plaintiff has been demanding

allotment of 44.61 acres of land. The appellant-plaintiff was called

upon by the defendant-NIT by issuing the communication

dated 3-12-1986 at Exhibit C-83 to deposit an amount of

Rs.4,414.95. This witness of the defendant-NIT in categorical

terms states in the cross-examination that this document nowhere

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indicates payment for 24 acres of land.

The defendant-NIT has, therefore, failed to establish that the

appellant-plaintiff was allotted only 24 acres of land and the

balance 20.61 acres of land was never allotted to the

appellant-plaintiff.

16. Shri Mishra, the learned Senior Advocate for the

respondent-NIT, has urged that the Trial Court in fact passed a

decree for specific performance of contract of lease and the same

was, therefore, governed by the provision of Article 54 of the

Limitation Act. He submits that refusal to execute the agreement of

lease in favour of the appellant-plaintiff was known to the

appellant-plaintiff on 16-10-1975 when Exhibit 57 was issued to

allot him 24 acres of land. He further submits that the cause of

action arose to the appellant-plaintiff on that date and the suit filed

on 15-12-1989 was barred by the law of limitation of three years

prescribed therein.

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17. Though the allotment of 44.61 acres of land was on

16-10-1975, the lease-deed in respect of 24 acres of land was

executed on 9-2-1989. Thus, there was refusal on 9-2-1989 to

execute the lease-deed in respect of 20.61 acres of land. Hence, the

cause of action in terms of Article 54 of the Limitation Act would

start running from 9-2-1989 when the defendant-NIT refused to

execute the lease-deed. The suit in question having filed on

15-12-1989 was not, therefore, barred by the law of limitation. In

fact, this was not the question raised before the Trial Court and no

issue was framed in respect of it. The lower Appellate Court has

committed an error of law in considering such issue and holding

that the suit in question was barred by the law of limitation. The

finding of the lower Appellate Court, therefore, needs to be set

aside.

18. The lower Appellate Court has committed an error in

holding that the defendant-NIT could not have disposed of the land

in favour of the appellant-plaintiff without there being any authority

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of law. The reliance was placed by the lower Appellate Court on

the provision of Rule 5 of the Nagpur Improvement Trust Land

Disposal Rules, 1982 to hold that there was no compliance and the

allotment was not in conformity with it. In my view, such reliance

was misplaced. The reason being that the said Rules were brought

into force on 18-5-1983 and the decision to re-allot 44.61 acres of

land to the appellant-plaintiff was taken on 6-10-1975 and 16-

10-1975, i.e. prior to coming into force of these Rules. The Rules

had no retrospective effect so as to nullify the actions taken in

accordance with the earlier Rules prevailing. The substantial

question of law at serial No.(I) is, therefore, answered accordingly.

19. The defendant-NIT, in spite of several reminders, did not

execute the lease-deed in respect of remaining 20.61 acres of land

in favour of the appellant-plaintiff. This Court has accepted the

finding recorded by the Trial Court that the allotment was in respect

of the entire 44.61 acres of land on 16-10-1975 at Exhibit 57. The

lease-deed was, however, executed on 9-2-1989 at Exhibit 64 and

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the defendant-NIT avoided to execute the lease-deed in respect of

20.61 acres of land. The Trial Court was, therefore, right in passing

a decree for that purpose.

20. In view of the aforesaid answers to the substantial

questions of law framed and setting aside the findings recorded by

the lower Appellate Court, the second appeal needs to be allowed

by restoring the decree passed by the Trial Court. Hence, the

following order is passed :

: O R D E R :

The second appeal is allowed.

The judgment and order dated 26-8-2014 passed by the lower Appellate Court in Regular Civil Appeal No.632 of 2007, is hereby quashed and set aside, and the judgment and decree passed by the Trial Court on 4-11-2003 in Regular Civil Suit No.2515 of 1989 is restored.

No order as to costs.

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JUDGE.

Lanjewar