Bombay High Court
Parbhani City Municipal ... vs Premkumar Dilipkumar Daga And ... on 15 July, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.282 OF 2021
PARBHANI CITY MUNICIPAL CORPORATION, PARBHANI
THROUGH ITS DEPUTY COMMISSIONER
VERSUS
PREMKUMAR DILIPKUMAR DAGA AND ANOTHER
.....
Advocate for Appellant : Mr. S. S. Bora
Advocate for Respondent No.2 : Mr. R. S. Deshmukh i/b Mr. S. S.
Gangakhedkar
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE OF RESERVING THE ORDER :
08-07-2021
DATE OF PRONOUNCING THE ORDER :
15-07-2021
ORDER :
1. Heard learned Advocate Mr. S. S. Bora for appellant and learned
Advocate Mr. R. S. Deshmukh instructed by Mr. S. S. Gangakhedkar
for respondent No.2.
2. It has been vehemently submitted on behalf of the appellant
Municipal Corporation that the corporation is aggrieved by the
concurrent Judgment and decree passed by learned Civil Judge, Senior
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Division, Parbhani in Regular Civil Suit No.223 of 2018, thereby
decreeing the suit filed by the present respondents and the same
being confirmed by the learned District Judge-5, Parbhani in Regular
Civil Appeal No.123 of 2019 on 11-03-2020, thereby dismissing the
appeal filed by the corporation. The present respondents had filed
the suit for mandatory injunction and alternatively for recovery of
possession. Substantial questions of law arising in this case are,
whether in view of Section 63 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (hereinafter referred to as, "the said Act" for the sake of
brevity) ; Civil Court had jurisdiction to entertain the suit in which
mandatory injunction was asked against the Municipal Corporation to
follow the procedure for the land acquisition as per the said Act.
Though it appears that a specific contention was not taken in the
written statement and a specific issue was not framed, yet since this
substantial question of law goes to the root of the case and it is a
question of law, it can be raised even at this stage of the second
appeal. A further question that arises is, whether the suit was
maintainable for non-joinder of necessary parties since the Collector
is the appropriate authority in the said Act, yet the learned Civil
Judge, Senior Division proceeded without adding Collector as a
3 SA 282-2021
party. The defendant corporation had specifically come with a case
that as per the tender that was published, it was mandatory on the
part of the person/ land owner offering his land that he should
provide for the road to the acquired land. The plaintiffs could not
have asked for more compensation that has been paid. There is a
sale deed in which consideration of the amount of Rs.3,98,48,599/-
was given to the plaintiffs, yet they have now raised a dispute in
respect of the further area of 2439 square meters. Therefore, when
the substantial questions of law are arising in this case, the second
appeal deserves to be admitted and there shall be a Stay to the
impugned decrees.
3. Learned Senior Counsel representing respondent No.2 who
have appeared suo-motu by filing a caveat vehemently submitted
that when the proper and full opportunity was given to the Municipal
Corporation to contest the suit and they had filed the written
statement, they have not raised any point in respect of the
jurisdiction of the Court. If we consider the entire written statement
then it can be seen that major facts are admitted. Though the fact
of tender notice is admitted and the contents of the sale deed are
also binding on the Corporation, it appears that the defendant
4 SA 282-2021
Corporation is forgetting its own responsibility to take steps for
fixation of the compensation and initiation of proceedings under the
said Act. Section 76 of the Maharashtra Municipal Corporations Act
provides for the power of the Corporation as to the acquisition of
property. Section 77 of the Maharashtra Municipal Corporations Act
deals with the acquisition of immovable property. When it is
necessary and expedient to acquire the land then the Commissioner
of the Municipal Corporation is empowered to negotiate for the
purchase of the immovable property by private agreement. Only in
case, he is unable to do that then he has to move the State
Government for acquiring the land for the Municipal Corporation
under Section 78 of the Maharashtra Municipal Corporations Act.
Here the negotiations had taken place and those negotiations which
have been reduced into writing in the sale deed are biding on the
Municipal Corporation, now they cannot derivate for the same.
Further, though there is a bar to the Civil Court under Section 63 of
the said Act, yet it is to be noted that what has been prayed by the
plaintiffs herein was the mandatory injunction directing the Municipal
Corporation to adopt the procedure that is required for fixation of
the compensation. Further, as per the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
5 SA 282-2021
Resettlement (Compensation, Rehabilitation and Resettlement and
Development Plan) Rules, 2015, Rule No.3 provides that, after
completion of the Social Impact Assessment, if it appears to the
appropriate Government that the land is required, then the requiring
body (Municipal Corporation herein) should file the request to the
concerned Collector in Form No.I along with the documents
mentioned in the said rule, thereafter, the action is required to be
taken by the Collector. Here, when no such action has been taken
by the Municipal Corporation, the plaintiffs are seeking mandatory
injunction so that the Commissioner should take up the action as per
the Rule No.3 above said with the Collector, for that purpose
Collector cannot be said to be a necessary party. All these things
have been considered by both the Courts below and, therefore,
there is absolutely no necessity to admit the second appeal much
less it is giving rise to any substantial question of law. The plaintiffs
are deprived of using their land to the extent of 2439 square meters
since 08-12-2016. He, therefore, prayed for the dismissal of the
second appeal in limine.
4. At the outset, the question regarding the jurisdiction of the
Court or bar to the Civil Court is definitely a question of law. The
6 SA 282-2021
basic rules of the drafting of the pleadings indicate that law is not
required to be pleaded, therefore, even if no such contention is
taken in the written statement regarding bar of jurisdiction, yet the
Courts of law especially the Trial Court, should consider the
provisions of law and consider whether a particular suit is barred by
any law or not. At this place itself we can consider a fact that
whenever a plaint is presented in Civil Court, the plaint should
contain a recital as to how the Court has jurisdiction. The concerned
Court through its duly appointed officers is required to scrutinize the
plaint as per provisions of Chapter II paragraphs No.8 and 9 of the
Civil Manual. At the time of scrutiny of the plaint the Court is
required to consider as to whether the suit is maintainable or not in
the form it has been presented, whether there is any bar to the
jurisdiction of the Court. Office objections may be raised and the
plaintiff would be called upon to satisfy the concerned Court before
the registration of the suit. When such exercise can be taken by the
Courts as per the above said provisions, at that time there will not
be a defendant who could resist the suit on the point of jurisdiction.
After the appearance of the defendant, the written statement has to
be filed as per the provisions of Order 8 of the Code of Civil
Procedure. There should be specific denials, and even if as regards
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the law point is concerned, there may not be a denial in specific,
that cannot be taken as a waiver. Further, we cannot forget the
provisions of Order 7 Rule 11 of the Code of Civil Procedure which
prescribes for rejection of plaint. In Ram Singh & Ors. vs Gram
Panchayat Mehal Kalan & Ors., reported in 1986 SCC (4) 364, it has
been observed and held by the Hon'ble Apex Court that : -
"When the suit is barred by any law, the plaintiff
cannot be allowed to circumvent that provision by
means of clever drafting so as to avoid mention of
those circumstances, by which the suit is barred by
law of limitation."
This proposition has been reiterated by the Three Judges Bench of
Hon'ble Apex Court in Canara Bank vs. P Sellathal (Dead) Thr Lrs.,
and others etc., in Civil Appeal Nos.1863-1864 of 2020 ( Arising out
of SLP © Nos.24819-24820/2019) decided on 28-02-2020,
therefore, it cannot be stated that no substantial question of law has
been raised in this second appeal.
5. A fact is required to be noted that certain facts were admitted
before the Court below. The pieces of land from both the plaintiffs
were purchased by sale deed by the defendant Corporation.
Initially, the agreement was in respect of 2439 square meters in
8 SA 282-2021
pursuant to the meeting that was held on 13-06-2016, but it is
stated that there was additional demand of land/area admeasuring
2439 square meters. Though plaintiffs were not initially ready but
later on they agreed and accordingly the sale deed was executed in
respect of the entire land, however, the recitals of the sale deed
would show that the parties accepted a position that the
consideration that has been paid to that sale deed was in respect of
the earlier agreed portions of land. Thereafter, the dispute has been
quoted and then it is also stated that that would be decided by the
said Act by the competent authority. The relevant paragraph from
the sale deed is reproduced : -
"lnj nLrk lkscr tksMysY;k 'ksr tehuh'kh laca/khr dkxni=kP;k oS/krs
ckcr vkEgh tckcnkj jkgrksy- R;kpizek.ks lnj tkxsl ¼18½ feVj #an jLrk
vko';d vlY;kus rlsp fuohnke/;s mDr tehu ftarqj rs ijHk.kh
jLR;kiklwu vkr vlY;kl iksgksp jLrk ns.ks vtZnkjkl ca/kudkjd jkghy vls
ijHk.kh 'kgj egkuxjikfydk ;kaps Eg.k.ks gksrs- rFkkfi [kktxh
okVk?kkVhe/;s ;ko#u erHksn fuekZ.k gksÅu ekst.kh udk'kkr n'kZfoY;kizek.ks
if'pesdMhy ¼9½ feVj x ¼271½ feVj tkxsO;frfjDr] vfrfjDr ¼9½ feVj
x ¼271½ feVj #an tkxspk ekscnyk fygqu ns.kkjkl fnysyk ulY;keqGs mDr
tkxsP;k ekscnY;kckcr dk;|kuqlkj l{ke U;k;kf/kdj.k fu.kZ; nsrhy rksi;Zar
fygwu ns.kkj gs R;kaP;k dsoG ekscnyk fo"k;d dk;ns'khj vf/kdkjkyk ck/kk
u ;sÅ nsrk lnjhy ¼9½ feVj x ¼271½ feVj tehuhph vkxkÅ ekydh fygqu
9 SA 282-2021
?ks.kkj ;kauk bZrj tehuhlg gLrkarjhr djhr vkgs- ;keqGs lnj
tehuhl ,dw.k ¼18½ feVj #an jLrk r;kj gksbZy-"
A party can sell even immovable property for part consideration to
be paid immediately and part agreed to be paid at a later point of
time. The question, therefore, arises as to what kind of right the
plaintiffs could get in view of the above said recitals in the sale deed
and whether they could have gone to the Collector directly for the
fixation of the amount of compensation. If they could have gone to
Collector directly or they have such right, then there was no
necessity for a suit for them to be filed before a Civil Court. Rule
No.3 referred above definitely states that after that Social Impact
Assessment, the requiring body filed the request to the concerned
Collector for action to be taken under the said Act. It is required to
be seen as to whether a private party is debarred from approaching
the Collector. Section 23 of the said Act deals with inquiry and land
acquisition award by Collector. Further, the Maharashtra
Amendment Section 23-A to the Said Act deals with the award of
Collector without inquiry in case of agreement of interested persons.
Sub-section (1) of Section 23-A of the Maharashtra Amendment Act
provides that : -
10 SA 282-2021
"Notwithstanding anything contained in section 23, if
at any stage of the proceedings, the Collector is
satisfied that all the persons interested in the land
who appeared before him have agreed in writing on
the matters to be included in the award of the
Collector in the form prescribed by the rules made by
the State Government, he may, without making
further enquiry, make an award according to the
terms of such agreement."
Now, it is then required to be seen, as to whether unless that form is
mandatorily submitted by the competent authority only, whether
Collector cannot proceed further. Therefore, it is required to be seen
as to whether the suit was maintainable though a specific contention
to that effect was not raised in the written statement.
6. It will have to be observed by this Court that framing of issues
is not the only act of the concerned Civil Courts but a procedure has
been laid down in the Code of Civil Procedure that is required to be
taken in which Advocates representing both the parties to the suit
are also required to take an active part in the act of framing proper
and necessary issues. If any important necessary issue has been
left out then it should be pointed out by the concerned Advocates.
But what is happening is that the Advocates are not taking an active
11 SA 282-2021
part, they do not pay attention as to which issues have been framed,
but then go on with the evidence and at a later point of time, maybe
in the first appeal or in the second appeal, the contention is then
raised that the Trial Court has not framed proper and appropriate
issues. Ultimate sufferers are the parties. This can be avoided by
the Courts as well as the Advocates who are representing the parties
in any particular suit.
7. As regards the non-joinder of the necessary party is
concerned, definitely it is not a substantial question of law. At the
first appellate stage also the appellant-Corporation could have
pointed out the said fact and, therefore, this Court comes to the
conclusion that only one substantial question of law is arising in this
case as contemplated under Section 100 of the Code of Civil
Procedure and, therefore, following substantial question of law is
framed : -
"Whether the suit was barred before Civil Court in view
of the bar under Section 63 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 ?"
8. In view of the formulation of the said substantial question of
law, the second appeal is admitted.
12 SA 282-2021
9. Issue notice to the respondents, made returnable on 30-08-
2021.
10. Learned Advocate Mr. R. S. Deshmukh instructed by learned
Advocate Mr. S. S. Gangakhedkar waives notice for respondent
No.2.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-.
