Mr. Dhanraj S/O Harichand ... vs The State Of Maharashtra, Thr. Its ...
2021 Latest Caselaw 14142 Bom

                                1/7                          Judg.15.wp.672.2019



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

                           WRIT PETITION NO. 672 OF 2019


        Dhanraj Harichand Khandelwal
        Age about 65 Years, Occupation-Business;
        Resident at - Plot No.2, Buty Layout,
        Dharampeth, Nagpur.                      ...                PETITIONER


                         VERSUS


1.      The State of Maharashtra
        Through its Principal Secretary,
        Urban Development Department,
        Mantralaya, Mumbai.

2.      Nagpur Municipal Corporation
        through its Commissioner, Civil Lines,
        Nagpur - 440 001.

3.      The Estate Officer
        Nagpur Municipal Corporation
        Civil Lines, Nagpur - 440 001.

4.      The Collector, Nagpur.
        Civil Lines, Nagpur.                           ...      RESPONDENTS



Mr. G. K. Mundhada, Advocate for Petitioner.
Mr. N. R. Patil, AGP for Respondent No.1.
Mr. J. B. Kasat, Advocate for Respondent Nos.2 and 3.



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                                         CORAM   : SUNIL B. SHUKRE &
                                                   ANIL S. KILOR, JJ.

                                         DATE    : SEPTEMBER 30, 2021.


ORAL JUDGMENT [PER SUNIL B. SHUKRE, J.]


.                  Heard Mr. Mundhada, learned Counsel for the Petitioner,

Mr. Patil, learned AGP for the Respondent No.1 and Mr. Kasat, learned

Counsel for the Respondent Nos. 2 and 3. Rule. Rule made returnable

forthwith. Heard finally by consent of learned Counsel for the

respective parties.

2. The Petitioner, being an adjacent land owner, has been

allotted conservancy lane by Nagpur Municipal Corporation as per the

demand notice dated 8th December, 2014, which was accepted by the

Petitioner and after depositing the amount so demanded, the Petitioner

also got executed the Lease Deed in his favour from Nagpur Municipal

Corporation in respect of the conservancy lane allotted to him.

Thereafter, the Petitioner approached to the Corporation that since the

Government had approved the Resolution of the Corporation dated 29 th

February, 2008 forwarded to the Government on 20th May 2008 on

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condition that the conservancy lane be allotted to the adjacent land

owner on the same terms and conditions, on which the adjacent land

has been allotted to such owner. The Petitioner could not have been

charged premium at twice the ready reckoner rate, and thus, the

Petitioner made a request to the Corporation for refund of 50% of the

amount which was excessively charged in his name.

3. According to learned Counsel for the Petitioner, the

approval dated 12/8/2013 to the proposal of Nagpur Municipal

Corporation regarding allotment of conservancy lane by charging twice

the amount, as prescribed under current ready reckoner rate, subject to

the condition by exercising its power under Section 79(f) (b) of

Maharashtra Municipal Corporations Act, Nagpur Municipal

Corporation is bound by the approval given by the State Government,

and thus, cannot charge in excess of what is permitted by the State

Government.

4. The submissions are opposed by Mr. Patil, learned AGP for

Respondent No.1 and Mr. Kasat, learned Counsel for the Respondent

Nos.2 and 3 i.e. Corporation, submitting that Section 79 (f) (b) of the

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said Act has no application with the present case, as the conservancy

lane is a piece of land, which was never owned by the State

Government and transferred to Nagpur Municipal Corporation. Rather

it was a piece of land, which was owned by Nagpur Improvement Trust,

and which is too, vested in Nagpur Municipal Corporation.

5. Section 79 (f) (b) of the said Act requires that no property

transferred to the Corporation by the Government shall be leased, sold

or otherwise conveyed in any manner contrary to the terms of the

transfer except with the prior sanction of the appropriate Government.

6. In the present case, Petitioner has not established the fact

that initially the conservancy lane was a Government property and it

was transferred to Nagpur Municipal Corporation, and therefore, the

provisions of Section 79 (f) (b) of the said Act would have no

application to the present case. That would mean that the approval

granted by the State Government on 12/8/2013 would not bind the

Corporation in the manner that Corporation will be compelled to

charge from the Petitioner the premium, at the same rate, as what is

prescribed in the current ready reckoner. There is also on record a

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report sent by the Collector, Nagpur on the request of the Court. This

report dated 15/11/2019 is already marked as document 'X'. This

report shows that the conservancy lane was at no point of time a Nazul

land. It records the fact that the conservancy lane is the land, which is

recorded in the name of Nagpur Improvement Trust, and that it was

not a Nazul land at any point of time. This report substantiates the

stand taken by the Respondent Nos. 2 and 3 that the conservancy lane

was not a Government land was beyond the pale of Section 79(f)(b) of

Maharashtra Municipal Corporations Act.

7. The above referred facts would show that the approval

granted by the State Government, by its communication dated 12 th

August 2013, would not bind Nagpur Municipal Corporation in the

manner that Nagpur Municipal Corporation will be compelled to

charge from the Petitioner only as much premium as is equivalent to

the rate prescribed in the current ready reckoner, and that Nagpur

Municipal Corporation would be at liberty to determine premium in the

reasonable manner, by following due process, which Nagpur Municipal

Corporation had already done, when it passed the resolution in this

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regard on 29th February, 2008. By this resolution, it was decided by

Nagpur Municipal Corporation that for leasing out conservancy lane,

the premium would be charged at twice the charge as prescribed in the

current ready reckoner. There is another aspect involved in this

Petition.

8. After the demand notice was issued to the Petitioner, calling

upon him to deposit twice the amount, as prescribed in the current

ready reckoner as a premium for grant of lease to conservancy lane in

December-2014, the Petitioner instead of challenging the demand

notice, accepted the demand notice and deposited the amount and

thereafter the Petitioner also got executed lease of the conservancy lane

in his favour. Thus, the Petitioner, by his own acts has made himself

disentitled to raise any question or challenge to what has already been

done by the Corporation, when it issued the demand notice in

December-2014 and executed the Lease Deed in favour of the

Petitioner.

9. Learned Counsel for the Petitioner has placed reliance upon

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the view taken by the Coordinate Bench of this Court in Writ Petition

No. 1479/2017 decided on 10th November, 2017, wherein the Division

Bench has held that in view of the approval given by the State

Government in that Petition, the conservancy lane would have to be

allotted to the adjacent land owner on the same terms and conditions,

on which the original land/plot is allotted to him. Thus, the Division

Bench directed the Corporation that, if any refund was necessary, same

be made over to the Petitioner within time stipulated in the Judgment.

10. As rightly pointed out by Mr. Kasat, learned Counsel for the

Respondent Nos.2 and 3, this decision would not cover the facts of the

present case, for the reason that what was involved in that Petition,

was the Government land which was transferred to Nagpur Municipal

Corporation, which is not the case here, as would be disclosed by the

facts discussed earlier.

11. In view of above, we find no merit in the present Petition.

Writ Petition stands dismissed. Rule is discharged. No costs.

       (ANIL S. KILOR, J.)                   (SUNIL B. SHUKRE, J.)
Yadav VG