Nashik Municipal Corporation vs Mr. Mohammad Ajijshujauddin ...
2022 Latest Caselaw 11517 Bom

                     KVM

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KANCHAN Digitally
        by KANCHAN
                  signed            CIVIL APPELLATE JURISDICTION
VINOD   VINOD MAYEKAR

MAYEKAR Date: 2022.11.18
        10:59:53 +0530
                                    WRIT PETITION NO. 7448 OF 2019

                     Mohammad Ajij Shujauddin Pirzade
                     & Ors.                                           ..... Petitioner

                           VERSUS

                     The State of Maharashtra & Ors.                  ..... Respondents

                                          ALONGWITH
                               INTERIM APPLICATION NO. 19507 OF 2022
                                               IN
                                  WRIT PETITION NO. 7448 OF 2019

                     Nashik Municipal Corporation                     .... Applicant

                     IN THE MATTER BETWEEN

                     Mohammad Ajij Shujauddin Pirzade
                     & Ors.                                           ..... Petitioners

                           VERSUS

                     The State of Maharashtra & Ors.                  ..... Respondents

                     Mr.Vivek Salunke, a/w. Mr.Ajinkya Jaibhave, i/b. Mr.Sachin
                     Gorwadkar for the Petitioners.

                     Mr.M.L.Patil for the Applicant in IA/19507/2022 and for the
                     Respondent no.4 in WP/7448/2019.

                     Mr.A.A.Alaspurkar, A.G.P. for the State - Respondent nos. 1 to 3.

                                             CORAM: R. D. DHANUKA AND
                                                    KAMAL KHATA, JJ.

DATE : 14TH NOVEMBER, 2022 KVM

24 - WP 7448 OF 2019.doc

P.C:-

Rule. Learned A.G.P. waives service for the respondent nos. 1 to

3. Learned counsel waives service for the respondent no.4. Rule is

made returnable forthwith.

2. The petitioners in this writ petition have prayed for writ of

mandamus thereby directing the respondent no.4 to forthwith deposit

an amount of Rs.24,06,41,412/- with the respondent no.1 as requested

vide communication dated 23rd January, 2018 by the respondent no.3.

3. In the development plan for Nashik City, the land of the

petitioners bearing survey no. 197/2C admeasuring area 11,000

sq.mtrs. were reserved for public purpose. The said development plan

came into effect on 16th November, 1993. Since no steps were taken by

the respondents to acquire the land of the petitioners, the petitioners

issued notice under section 127 of the MRTP Act. The respondents did

not take any steps to acquire the land granted to the petitioners.

However, the petitioners have taken a stand that the acquisition has not

lapsed. The respondents are bound to acquire the land of the KVM

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petitioners.

4. Mr.Salunke, learned counsel for the petitioners invited our

attention to the affidavit in reply filed by the Municipal Corporation on

2nd March, 2020 and submitted that it was the case of the Municipal

Corporation itself that the land of the petitioners was required for the

purpose mentioned in the said affidavit. He submitted that the

respondent Corporation having agreed to acquire the land of the

petitioners while opposing the writ petition filed by the petitioners has

no option but to acquire the land of the petitioners.

5. Learned counsel invited our attention to the order dated 20 th

September, 2022 passed by this Court in this writ petition and

submitted that after hearing the learned counsel for the parties, this

Court has specifically directed the respondent no.4 Corporation to

comply with the requisition made by the Deputy Collector vide letter

dated 23rd January, 2018 within four weeks from the date of the said

order and further directed that upon deposit of such amount, the

Deputy Collector shall proceed with the acquisition and to make an

award within the time contemplated under the provisions of Land KVM

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Acquisition Act, 2013.

6. Learned counsel for the petitioners invited our attention to the

averments made in paragraph (8) of the interim application filed by the

Municipal Corporation and submitted that this Court had considered

the statement made by the Municipal Corporation that the Corporation

was not in a position to acquire the land on the ground that the

Corporation has precarious financial condition. He submitted that

there is no change in the circumstances. This Court thus cannot grant

any relief as sought by the Municipal Corporation to modify the order

dated 20th September, 2022 on the ground that the Municipal

Corporation now does not propose to acquire the land of the

petitioners.

7. Learned counsel for the petitioners relied upon the judgment of

Hon'ble Supreme Court in Miscellaneous Application No. 1572 of

2021 in Civil Appeal No. 5041 of 2021 in case of Supertech Limited

vs. Emerald Court Owner Resident Welfare Association & Others and

in particular paragraph (12) and submitted that in view of the principles

of law laid down by the Supreme Court in the said judgment, this KVM

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interim application for modification of the order cannot be entertained.

8. Mr.Patil, learned counsel for the respondent Corporation on the

other hand submits that the Corporation has expressed its financial

difficulty and thus the Corporation having proposed not to acquire the

land of the petitioners, the Corporation cannot be forced to acquire the

land of the petitioners.

9. In his rejoinder argument, Mr.Salunke, learned counsel for the

petitioners invited our attention to various averments made in affidavit

in rejoinder and submitted that the Municipal Corporation had

sufficient budget for the land for financial year 2018-19 and also 2019-

20 and 2021-22 and thus the stand now taken by the Municipal

Corporation after more than 30 years of reservation of the land of the

petitioners for public purpose cannot be refuse to acquire the land of

the petitioners. This averments of the petitioners are not disputed by

the respondents.

10. It is not in dispute that the land of the petitioners was reserved

for the development plan of Nashik City which came into effect on 16 th KVM

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November, 1993. We have perused the averments made in the affidavit

in reply filed by the respondent no.4 on 2nd March, 2020.

11. In paragraph (6B) of the said affidavit, it is averred that after

receipt of notice the standing committee of the Corporation passed

resolution being Resolution No. 809 dated 9th December, 2016 wherein

it was resolved to handover the matter of the acquisition of the said

land to the respondent no.1. Thereafter an agreement/affidavit was

submitted to the respondent no.2 by the respondent Corporation with

the signatures of the then standing committee members in which it has

been clearly stated about the intention of the respondent Corporation to

prepare the proposal for acquisition of the land. The respondent

Corporation thereafter requested the respondent no.2 by a

communication dated 21st June, 2017 to initiate the proceedings under

the Land Acquisition Act for acquisition of the land of the petitioners.

12. In paragraph (7) of the said affidavit, it is stated that in view of

the action initiated by the respondent Corporation, it is crystal clear

that the said land of the petitioners is required by the respondent

Corporation for the purpose mentioned in the said affidavit. The KVM

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Corporation is ready to give the equivalent value of TDR to the

petitioners. It is further stated that it would be in the public interest for

the purpose of construction of stadium that the petitioners be directed

to accept the TDR instead of insisting for compensation in terms of

money.

13. After considering these averments in the affidavit in reply, this

Court by the said order dated 20th September, 2022 directed the

Municipal Corporation to comply with the requisition made by the

Deputy Collector vide letter dated 23rd January, 2018 within four weeks

from the date of the said order. The said order has not been impugned

by the Municipal Corporation till date.

14. We have perused the averments made by the Municipal

Corporation in the interim application filed before this Court. The only

reason in the interim application for not acquiring the land of the

petitioners is that the Municipal Corporation is not in a position to

incur the total expenses of acquiring the land.

15. In our view, the order dated 20 th September, 2022 having been KVM

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passed after hearing learned counsel for the parties cannot be modified

at this stage only on the ground that the Municipal Corporation does

not propose to acquire the said land on the ground that the Corporation

is not in a position to acquire the said land. The Municipal Corporation

has all throughout taken a stand that the land is required for the public

purpose while opposing the petition filed by the petitioners and thus

now cannot be now allowed to refuse to acquire the land on the ground

that the applicant has no finance to acquire the land. Interim

application thus filed by the Municipal Corporation is rejected.

16. The Municipal Corporation is directed to comply with the

directions issued by this Court on 20th September, 2022 and more

particularly in paragraph (6) thereof within two weeks from today.

17. Upon deposit of the amount by the respondent no.4, if any, the

Deputy Collector to proceed with the acquisition and to make an award

within the time contemplated under the provisions of Land Acquisition

Act, 2013.

18. Writ petition is allowed in the aforesaid terms. Rule is made KVM

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absolute. No order as to costs.

19. In view of disposal of the writ petition, interim application does

not survive and is also disposed off. No order as to costs.

20. Place the matter on board for reporting compliance on 12th

December, 2022.

      [KAMAL KHATA, J.]                     [R. D. DHANUKA, J.]