Bombay High Court
Vivek Kishan Nandgude Through Its Power ... vs Pimpri Chinchwad Municipal ... on 15 October, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:41759-DB
Digitally
signed by
PRASHANT
PRASHANT VILAS
VILAS RANE 2-WP-5658-2024 F.DOC
RANE Date:
2024.10.19
21:58:31
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5658 OF 2024
Vivek Kishan Nandgude Thr. Its Power of Attorney ... Petitioner
N. D. Ghante
Versus
Pimpri Chinchwad Municipal Corporation & Ors. ... Respondents
_______________________
Mr. Nitesh Nevshe & Vishal Nitesh Nevshe for the Petitioner.
Mr. Rohit Sakhadeo for Respondent No.1.
Mr. A. I. Patel, Addl. G. P. a/w Ms. P. N. Diwan AGP for State.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 15 OCTOBER 2024
_______________________
Oral Judgment (Per: G. S. Kulkarni, J.)
1. This a classic case depicting the plight of the petitioner - farmer, who has
been made to run from pillar to post to receive compensation in respect of his
land, which was acquired for the purpose of road construction by respondent
No.1 / Pimpri Chinchwad Municipal Corporation.
2. The petitioner was the owner of land admeasuring 10R situated at
village Pimple Nilak, Tq. Haveli, District Pune, bearing Khate Kramank 1660.
A copy of the Revenue Entries (7/12 extracts) is annexed to the petition. From
what has been recorded by respondent No.1 in its letter dated 18 February
2008, in a consensual manner, advance possession of the land from the
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petitioner was taken over subject to the petitioner being compensated with
appropriate TDR/FSI which was payable only on the ground that the
petitioner voluntarily hands over the possession of the land. A copy of the
communication as addressed to the petitioner and which was acted upon is
required to be noted which read thus :
"(Official Translation)
Pimpri Chinchwad Municipal Corporation,
'D' Ward Head Office,
No.Stha/D.H./------/200--.
Date : (18 February 2008)
To,
Shri Vivek Kisan Nandgude and others,
Vishal Nagar,
Pimple Nilakh.
Subject :- Regarding handing over advance possession of the land
required for development work by the Municipal Corporation.
Sir,
The land bearing S.No. 22/1/3/1 admeasuring ---------- sq.mt. approximately,
situated at Pimple Nilakh, of your ownership is being affected by the 12 meter
wide road of the Municipal Corporation (near the Chhatrapati Bank). It is
necessary in the interest of public in general that the Municipal Corporation gets
the possession of the said land by way of advance possession, subject to the terms
and conditions in respect thereof. If you voluntarily handover possession of the
said land to the Municipal Corporation, under Advance Possession Receipt
then, the consideration for the said land as determined by the Competent Officer
as per Rules, will be given to you by the Collector as per the prevailing rules, in
the form of the value of the said land/floor space index etc. in lieu of the said
land, as per your request.
Hence, you are requested to handover possession of the land of your
ownership to the Municipal Corporation by way of advance possession, in the
interest of public, as mentioned hereinabove and to render co-operation in this
regard.
Yours faithfully,
Executive Engineer,
'D' Ward Head Office,
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Pimpri Chinchwad Municipal Corporation."
(emphasis supplied)
3. The aforesaid communication addressed to the petitioner by respondent
No.1 was acted upon, in pursuance of which the petitioner handed over
possession of his land to respondent No.1. However, although the possession of
his land being taken over, the petitioner was not granted the TDR/FSI in lieu
of the monetary compensation.
4. The petitioner therefore addressed a representation to respondent No.1
dated 20 February 2008 inter alia recording that the work in regard to the
construction of the road had already commenced, and as the possession of the
petitioner's land for such purpose was already taken over, the petitioner be
granted TDR in lieu of compensation. Such letter of the petitioner was
responded by a letter dated 03 March 2008 addressed to the petitioner by the
Assistant Town Planner of Respondent No.1 stating that the petitioner needs
to submit some documents including on the ownership of the land. As rightly
urged on behalf of the petitioner, the said letter, had set out several documents
to be submitted by the petitioner, which in fact, was never an intimation to the
petitioner, prior to the taking over of the possession of the land from the
petitioner. This for the reason that as respondent No.1 had already verified and
never disputed petitioner's ownership of the land while taking over the
possession of the land from the petitioner, which was indisputedly handed over
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by the petitioner to respondent No.1. It would be appropriate to note the
contents of this letter which reads thus:
(Official Translation)
Dated 03 March 2008
"To,
Shri Vivek Kisan Nandgude,
Residing at Vishal Nagar,
Pimple Nilakh,
Taluka Haveli, District - Pune.
Subject :- Regarding getting F.S.I./T.D.R. in respect of the area from out
of the property bearing Survey No. 22/1+3/1 situated at
Pimple Nilakh, affected by 12 mt. wide road.
Reference :- Your application dated 20.02.2008.
Sir,
The application referred to hereinabove on the above-mentioned
subject has been received by this Department. However, you have not
enclosed any documents pertaining to the ownership right in respect of
your property, alongwith the said application. Therefore, you are
requested to submit the below-mentioned documents.
Documents to be submitted in the matter of granting T.D.R.
The copies of below-mentioned documents in this entire matter
should be submitted in triplicate.
1. Documents in respect of ownership right
a. 7/12 extract issued within the period of 3 months b. 7/12 extract
together with all Mutation entries made thereon. c. Extract from Property
Register Card d. Extracts from Enquiry Register. f. Title Search Report
pertaining to last 30 years, in respect of the transactions whatever that
might have been entered into in respect of the aforesaid land.
2. Actual Survey Map in respect of the aforesaid land.
3. Opinion on Development Scheme.
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4. Order under U.L.C. in respect of the reservation of land
5. Certificate from the Licensed Architect certifying about having put up the
permanent marks (Guard Stone) showing the reserved land, area of the
reserved land and also certifying that the aforesaid land is free from en-
croachments.
Therefore, you are requested to submit the above-mentioned docu-
ments at the earliest and only thereafter, it would be possible to take fur-
ther steps in this matter.
May this be known.
Yours faithfully,
(Signature Illegible)
Assistant Town Planner,
Pimpri Chinchwad Municipal Corporation
Pimpri, Pune - 411018.
(emphasis supplied)
5. We may hence observe that although in the letter dated 18 February
2008 issued by respondent No.1 which we have extracted hereinabove, the
petitioner's ownership in respect of the land was not disputed and / or was
accepted when the petitioner was requested to hand over advance possession of
his land, without calling upon the petitioner to made any compliances, as later
on sought from the petitioner. The petitioner had accepted and acted upon
such communication and changed his position by handing over the possession
of his land. In such circumstances the petitioner could not have been taken by
a surprise by the Assistant Town Planner by aforesaid letter dated 3 March
2008 calling for personal documents.
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6. It therefore clearly appears to us that the communication dated 3 March
2008 calling upon the petitioner to submit these documents listed therein, that
too after the petitioner was rendered landless, was quite astonishing. We say so,
as the petitioner's land was already taken over and utilized without payment of
compensation, which otherwise could not have been taken over only on
following a lawful procedure under the Land Acquisition Act, 1894. A perusal
of condition No.5 of the aforesaid letter shows that a person like the petitioner
who is a farmer is being called upon to obtain an Architect's Certificate.
7. We have not been pointed out anything on behalf of the Municipal
Corporation that these were the compliances which were expected from the
petitioner / land owner prior to the possession being taken over and to become
entitled to the TDR in lieu of the monetary compensation as a contract
between the parties was entered and stood concluded under the letter dated 18
February 2008 (supra) issued to the petitioner under which what had remained
on the part of respondent No.1 was to grant TDR to the petitioner.
8. In the aforesaid circumstances, the petitioner also made an application
under the Right to Information Act, 2005 on 16 September 2011 as to why the
petitioner's repeated requests for grant of TDR/FSI were not being considered.
Such letter of the petitioner was replied by the Deputy Engineer, Town
Planning and Development Department of respondent No.1, informing the
petitioner that although the petitioner had made an application for grant of
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TDR on 20 February 2008, the petitioner had not submitted documents in
support of such application, therefore further action was not taken by
respondent No.1 on such application. It was also recorded that if the petitioner
submits the necessary documents, appropriate action in that regard would be
taken.
9. It appears from the record that the petitioner thereafter entered
subsequent correspondence with respondent No.1. Such letters of the
petitioner are annexed to the petition and last of such letter being letter dated 3
October 2022, in which the petitioner enclosed the copies of the prior
correspondence he entered with respondent No.1, as also enclosed the relevant
documents of the 7/12 extract, etc. Such application of the petitioner was
ultimately acted upon when the Executive Engineer of respondent No.1
addressed a letter dated 17 October 2022 to its Deputy Director, Town
Planning inter alia recording that the petitioner is the owner of the land whose
land was acquired for the widening of the 12 meter DP road and be issued a
certification under "Pra-Patra (a) and (b)". Such letter also recorded that action
to take possession of the land was already taken and the land was utilized for
construction of the road. The contents of this letter need to be extracted, which
reads thus:-
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"(Official Translation)
e-File Entry No.: 'D' Ward Civil / Table
Eng./330/2022.
Pimpri- Chinchwad Municipal
Corporation,
Rahatani, Pune - 411017.
'D' Ward office,
Civil Department.
Outward No. 'D' W/C/WS/889/2022.
Date : 17.10.2022.
To,
The Deputy Director,
Town Planning and Development Department,
Pimpri-Chinchwad Municipal Corporation,
Pimpri - 411018.
Subject : Regarding taking possession of the lands of the Property
Holders from out of the land bearing Survey No. 22/1/3/1-D,
situated at Village - Pimple Nilakh, affected by the 12.00
Mtrs. wide road, proposed in the sanctioned Development
Scheme.
Reference : Application dated 03.10.2022, submitted by Shri Vivek
Kisan Nandgude, residing at Laxmi Niwas, Late Kisan
Nandgude Colony, Vishal Nagar, Survey No. 22-Part,
Pimple-Nilakh, Pune - 27.
Sir,
The below named Property Holder is ready to hand over in the possession of
the Municipal Corporation, the area from out of the land bearing Survey No. 22/1/3/1-D,
situated at Village - Pimple-Nilakh, affected by 12.00 Mtrs. wide D.P. Road, proposed in
the sanctioned Development Scheme. Therefore, it is requested to kindly take further
appropriate steps for giving "Proforma - A" and "Proforma - B" to the concerned owner of
the land.
Sr. Name Address
No.
1. Shri Vivek Kisan Nandgude Survey No. 22/1/3/1-D Part, Pimple-
Nilakh, Pune.
Hence, in order to see that the Municipal Corporation duly receives the
possession of the land of the Property Holder named hereinabove, you are requested for co-
operation at your level, for the steps to be taken for taking possession of the area of the said
land.
Yours faithfully,
(Signature )
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Executive Engineer (Civil)
'D' Ward Office,
Pimpri Chinchwad Municipal Corporation,
Rahatani, Pune - 17."
10. However, what has transpired thereafter is interesting, when the then
Deputy Engineer, Town Planning of respondent No.1, bonafide, considered
that the petitioner be granted compensation in terms of TDR/FSI, as the
petitioner was already rendered landless. He accordingly addressed a
communication dated 25 July 2023 to the petitioner wherein he acknowledged
that the petitioner had submitted nine documents, except one document which
was "Pra-Patra (a) and (b) (Original)". The letter records that a proposal was
received by his office for grant of TDR/FSI to the petitioner and on scrutiny of
such application and the compliances, one document listed at item 3 i.e. "Pra-
Pratra" was not submitted and after the same is submitted the proposal can be
taken forward, and further appropriate action can be taken. The said letter of
the Deputy Engineer reads thus:-
(Official Translation)
"Pimpri Chinchwad Municipal
Corporation, Pimpri-18.
Town Planning and Development
Department No. T.P.D./W.S./
47/01/2023
Date : 25.07.2023.
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To,
Shri Vivek Kisan Nandgude,
Residing at Pimple Nilakh, Pune.
Subject 11. Regarding getting F.S.I./T.D.R. in respect of the affected
:- area from out of the land bearing Survey No. 22/1+3/1/D
situated at Pimple Nilakh.
Reference 12. Your application dated 06.02.2023.
:-
Sir,
The proposal under the application referred to hereinabove on the above-
mentioned subject, has been received by this Department. As mentioned in the said
application, you have requested to give consideration in lieu of the affected area from
out of the property bearing S.No. 22/1+3/1/D situated at Pimple Nilakh, in the
form of F.S.I./T.D.R.. However, on making scrutiny of your proposal, the below-
mentioned documents are not found therein.
1. Title Search Report for last 30 years (Original)
2. 7/12 extract (Original copy issued within the period of 6 months)
3. (Pra-Patra) A & B - Original copy.
4. Copy of the re-survey report, within 6 months (Original copy)
5. Scrutiny fee as per Rules
6. Panel Advocate Fee as per Rules
7. Opinion on Development Plan
8. Extracts of Mutation entries since last 30 years
9. Other documents in respect of ownership right.
It is necessary to prepare a file of the compilation of the above-mentioned
documents and to submit the said proposal through the Citizen Facility Center. Af-
ter complying with the documents by you, it would become possible to take further
appropriate steps regarding giving consideration as per rules, as requested in the pro-
posal submitted by you.
Yours faithfully,
Deputy Engineer, Town Planning,
Pimpri Chinchwad Municipal
Corporation Pimpri 411018."
(emphasis supplied)
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13. It is at this stage, the petitioner raising a grievance that although all the
documents were submitted and the issuance of "Pra-Patra (a) and (b)
(Original)" being completely within the authority of respondent No.1, which
should have been granted to the petitioner, to avail the TDR/FSI, the present
petition came to be filed.
14. As the petitioner was being denied the benefit of the compensation in
terms of TDR/FSI only for the "Pra-Patra (a) and (b)" not being submitted, as
the same was not issued to the petitioner by respondent No.1, this Court
considering respondent No.1's communication dated 17 October 2022 (supra)
passed an order on 11 October 2024 directing respondent No.1 to issue "Pra-
Patra (a) and (b)" in favour of the petitioner. The said order is required to be
noted which reads thus:
"1. At the request of Mr. Sakhadeo, learned counsel for respondent
No.1 / Corporation, only as a matter of indulgence, we adjourn the
proceedings to 15 October 2024 (HOB).
2. In the meantime, considering the communication dated 17 October
2022 (page 42 of the paper book), we direct respondent No.1 to issue
"pra-patra" (a) and (b) in favour of the petitioner. This more
particularly as the issue is pending in this regard for quite some time, as
also there is absolute clarity in this regard, considering the internal
letter dated 17 October 2022 of respondent No.1.
3. In any event, it cannot be the stand of respondent No.1 that the
petitioner would be deprived of the compensation and / or his merit
entitle for the TDR, if it is so acceptable to the petitioner. This cannot
wait for any technicalities, when substantial compliances are already
made by the petitioner and as pointed out to us in respondent No.1's
own letter dated 25 July 2023 at page 44 of the paper book.
4. Accordingly, Stand over to 15 October 2024 (HOB). "
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15. However, what has transpired after we passed the aforesaid order is
something, which would shock our judicial conscience. We say so as, although
"Pra-Patra (a) and (b)" was issued to the petitioner, in reality it is merely a
paper formality and of no consequence as respondent No.1 is clearly inclined
not to grant any compensation to the petitioner, much less in the form of
TDR/FSI, qua the petitioner's land acquired by the respondent No.1
Municipal Corporation. This is evident from what is informed to the Court by
Mr. Prasad Gaikwad, Deputy Director, Town Planning, who has taken the
opportunity of the last adjournment to file a reply affidavit. What surprises us
is that the affidavit completely disregards the petitioner's grievance on non-
grant of compensation and the correspondence in that regard made by
respondent No.1 which never disputed grant of compensation to the petitioner,
in terms of the TDR/FSI. The affidavit contains statements which wantonly
denies to the petitioner, the benefit of the TDR/FSI, as agreed to be granted by
respondent No.1 in its letter dated 25 July 2023 (supra) to be granted to the
petitioner on the submission of "Pra-Patra (a) and (b)".
16. What is more glaring is the nature of the objections as raised in the reply
affidavit which in our opinion appears to be with an intention to create a
different record, contrary to the clear stand taken on behalf of the Municipal
Corporation in the letter dated 25 July 2023 and the subsequent letters as
noted by us hereinabove. This, knowing well that the petitioner is rendered
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landless, as the possession of the petitioner's land was taken in the year 2008,
affecting the petitioner's valuable rights under Article 300A of the
Constitution, without recourse to any procedure under the Land Acquisition
Act to otherwise lawfully acquire the petitioner's land. Further, the petition is
surprisingly sought to be opposed also on the ground of delay and latches. The
reply affidavit does not leave an opportunity to criticize the petitioner on such
aspects, however, not denying that the petitioner is a farmer with limited
means, when the deponent for the first time alleges the petitioner of not being
prompt in submitting documents, and being accused of espousing a stale cause
of action in asserting grant of compensation. On such plea, the petitioner is
being denied grant of compensation in the reply affidavit.
17. In our opinion such stand as taken by Mr. Prasad Gaikwad is de hors the
prior position / correspondence of respondent No.1 / Corporation entered with
the petitioner, when the petitioner was never denied his entitlement to the
compensation in form of TDR/FSI. Further, what is shocking is the content of
para 9 of Mr. Prasad Gaikwad's affidavit in which in terms, he states that in so
far as the issue of TDR/FSI is concerned, it falls under UDCPR - 2020. He
refers to rule No.11.2.3(6) in regard to the existing user so as to deny to the
petitioner grant of TDR. It is stated that in the present case as the DP road is
already constructed, hence, the said DCPR had become applicable. It also
refers to a notification dated 28 January 2016 by the State Government and
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more particularly annexure - "B" clause No.3-VII under which the petitioner
cannot be granted TDR. The contents of paragraph Nos. 9, 10 and 11, of the
reply affidavit of Mr. Prasad Gaikwad are required to be noted which reads
thus:
"9. As regards the issue of T.D.R is concerned, it is most respectfully
submitted that, firstly under UDCPR 2020 more particularly Rule
No.11.2.3(vi) for an existing user, TDR is not payable. In present case
D.P road is already constructed hence applicable. Similarly a
notification dated 28/1/2016 is issued by state government more
particularly annexure B clause no.3(vii). Hereto annexed and marked as
Exhibit R- 1(colly) are the copy of relevant provision of UDCPR 2020
and copy of notification dated 28/1/2016 issued by state government. I
crave leave to rely upon the same.
10. UDCPR come into force on 12/12/2020.
11. In pursuance of Petitioner's proposal dated 06/02/2023, PCMC
carried out on spot inspection on or about 23/07/2023 after which it
was found that, at the said spot/land road is already developed. The
same is developed well before 2022. It is further submitted that, the
subject land is affected by 12 Meter D.P. Road as per development plan
opinion dated 29/10/2005."
18. From the perusal of the aforesaid contents of the reply affidavit of Mr.
Prasad Gaikwad, it is quite clear that the intention of the deponent is to defeat
the claim of the petitioner for grant of compensation in terms of the TDR, on
absolutely frivolous and untenable grounds. There are also new grounds being
informed to the Court under the affidavit and not to the petitioner at any point
of time. In our opinion, the reply affidavit is far from bonafide, in fact, the
contents of the affidavit deliberately fail to notice that the petitioner's land was
taken over in the year 2008 and the rules which have been referred to be
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applicable are of the year 2020. Also, there appears to be a deliberate omission
to acknowledge the prior correspondence more particularly respondent No.1
having desired to take over the land and make the petitioner landless under a
consensual arrangement with an agreement to provide TDR in lieu of
monetary compensation. This apart, Mr. Prasad Gaikwad, the deponent of the
affidavit does not stop at this, when in paragraph 12 of the affidavit, he further
states that not only would the petitioner not be entitled to TDR/FSI but he
would also not be entitled to the payment of compensation. The contents of
the said paragraph are required to be noted which reads thus:
"12. Further copy of petitioners letter dated 20/2/2008 (page 36 of
petition) mentions about claim of TDR/FSI and letter dated
12/12/2024 (page 40 of petition) mentions claim only about T.D.R
hence even otherwise petitioner could not have and cannot claim any
other compensation and that too he would have been entitled only after
proving his entitlement under law in the year 2008 and before road
being developed which the petitioner till date has failed to produce and
prove. The perusal of petition and or the annexed documents thereto
shows that there is no document placed on record by petitioner which
proves that in the year 2008 itself he had submitted all required
documents as mentioned in pcmc letter (page 29 of petition)."
19. Having noted the contents of paragraph 12 as also the other contents of
the affidavit, we are of the opinion that respondent No.1 ought to have
conducted itself as a responsible public body and function as per the rule of law
and not at the ipse dixit of the Officers like the deponent of the reply affidavit,
who has crossed all limits of legitimacy, rationale and fairness in dealing with
the petitioner's case. The Officers of respondent No.1 cannot have such
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reckless and casual approach, in dealing with the valuable rights of the citizens
qua their land guaranteed under Article 300A of the Constitution. This more
particularly when the petitioner was deprived of his land by respondent No.1,
which was utilized way back in the year 2008.
20. We may also observe that after respondent No.1 tookover the
petitioner's land, respondent No.1 was in an absolute dominating position qua
the petitioner a farmer who was rendered landless. The petitioner having
handed over his land to respondent No.1, was at the complete mercy of
respondent No.1 and its Officers. It is very easy for the public bodies like
respondent No.1 to lure farmers like the petitioner to give up their land, with a
clear declaration agreement that he would be compensated by grant of
TDR/FSI and thereafter in such jugglery as in the present case, back out. After
taking over possession of the land, the petitioner was left at the complete mercy
of respondent No.1 and was left begging for grant of compensation. Most
importantly, while taking possession of the land from the petitioner, in no
manner whatsoever it was disputed that the petitioner is not the owner of the
land and in fact, in the capacity of the owner of the land, correspondence was
addressed to the petitioner to hand over the possession and accordingly
possession was taken over from the petitioner.
21. We may observe that in the event, the procedure as mandated in law was
to be adopted and followed, it was incumbent for respondent to resort to the
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procedure under Section 126 of the Maharashtra Regional Town Planning Act,
1966 read with the provisions of the Land Acquisition Act, 1894 to acquire the
petitioner's land by making payment of compensation, however, this was
avoided in lieu of the consensual arrangement. Needless to observe that if such
lawful procedure was to be resorted, all necessary steps which would include
issuance of appropriate notifications, inviting objections from the petitioner,
hearing the petitioner and determination of compensation as per the prevalent
market rate were required to be resorted. However, when by-passing such
procedure, respondent No.1 in a consensual manner took over the possession
of the petitioner's land with a promise to the petitioner to grant to the
petitioner TDR/FSI in lieu of monetary compensation, in our opinion, it was
certainly an onerous responsibility and obligation on respondent No.1 and its
Officers to act swiftly and comply with its promises and assurances and not to
wield a reckless approach. This more particularly when there is a rule of law
which is prevalent, and the rights of the parties to own the land could not have
been deprived contrary to the guarantee under Article 300A of the
Constitution. It also cannot be countenanced that once the petitioner was
deprived of his land in a manner not known to law, even assuming that the
petitioner did not have some of the documents at the relevant time, it cannot
be that the petitioner would be deprived of his Constitutional right as the
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owner of the land to receive compensation in complete defiance of such legal
rights.
22. As noted above, in the present case, the correspondence as entered
between the parties is replete qua the recognition of the petitioner's rights as
the owner of the land and to the legitimate entitlement to receive the TDR.
Most importantly, respondent No.1, under our order dated 11 October 2024,
has now issued "Pra-Patra (a) and (b)" in favour of the petitioner and subject to
the orders to be passed on the present proceeding. Thus, by grant of "Pra-Patra
(a) and (b)", it is implicit that the petitioner's rights for grant of TDR/FSI have
been recognized, as this was the only document which had remained to be
submitted by the petitioner which is now issued by respondent No.1, for the
petitioner to be entitled to the TDR/FSI.
23. Be that as it may, what has also disturbed us is the vehemence of Mr.
Sukhadeo in justifying every possible line in the reply affidavit of Mr. Prasad
Gaikwad, Deputy Director, Town Planning albeit not supported in law. Mr.
Sukhadeo is not in a position to justify as to how, merely because all the
documents were not submitted or they were being belatedly submitted by the
petitioner, could disentitle the petitioner to the compensation as asserted in the
reply affidavit. He is also not in a position to justify the stand taken in the reply
affidavit in paragraph Nos.9, 10 & 11, that is, as to how the UDCPR of 2020
would become applicable in respect of land, which had stood acquired in the
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year 2008 and that too without following due procedure in law and / or by
payment of compensation to the petitioner. He is also not in a position to
justify as to how such stand of the deponent of the reply affidavit can at all be
accepted by the Court, that the petitioner is not entitled to either TDR or any
compensation as stated by Mr. Prasad Gaikwad in paragraph 12 of his affidavit
as noted by us hereinabove. This more particularly, when the contents in
paragraph 12 are in the teeth of the letter dated 25 July 2023 as addressed by
the then Deputy Engineer, Town Planning of Respondent No.1.
24. From the tenor of the affidavit of Mr. Prasad Gaikwad, we are of the
clear opinion that this affidavit is filed to mislead the Court, to say the least,
and / or to take a dishonest stand which no public officer can take and more
particularly contrary to the record, that too in the case of a farmer, who has
been deprived of his land as also his right to receive compensation, rendering
him landless, as far back in 2008.
25. The position in law in this regard for the petitioner to become entitle to
compensation is well settled. No person can be deprived of his land, for being
utilized for a public purpose, without being compensated as the law would
mandate. In the present case, the petitioner has become entitled for the
TDR/FSI as the petitioner has submitted all the documents. The only deficit
document is also now issued to the petitioner namely "Pra-Patra (a) and (b)" as
annexed to the reply affidavit. However, what cannot be overlooked is that
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although "Pra-Patra (a) and (b)" has been issued, by virtue of the affidavit of
Mr. Prasad Gaikwad, it is being rendered is a mere paper formality and / or to
be of no consequence, as noted by us above. In our opinion, when "Pra-Patra
(a) and (b)" was issued as per the orders of this Court which considered
respondent No.1's prior letter dated 25 July 2023, to take a stand as contained
in the reply affidavit by Mr. Prasad Gaikwad that the petitioner would be
denied grant of compensation in our opinion this has amounted to a highest
impropriety in making such affidavit to not only render the "Pra-Patra" of no
consequence but even render the Court orders meaningless.
26. Thus, on one hand, it appears that Mr. Prasad Gaikwad, the deponent of
the affidavit himself has issued "pra-patra (a) and (b)" however, on the other
hand by incorporating such contents of his affidavit as noted by us and for
reasons best known to him and / or on extraneous considerations, has sought to
deprive the petitioner of his legitimate entitlement to the compensation
(TDR/FSI). In fact, he has gone a step ahead to take a position that the
petitioner would not entitled to "any compensation" on the ground of delay in
submission of the documents, which was never the stand of respondent No.1 in
the correspondence entered with the petitioner. Such contention in the reply
affidavit is contrary to the settled principles of law as laid down by the Supreme
Court in plethora of its judgments (See: Tukaram Kana Joshi & Ors. Vs.
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Maharashtra Industrial Development Corporation & Ors 1. and Vidaya Devi
Vs. The State of Himachal Pradesh2).
27. We are certainly not accepting the stand taken in the reply affidavit of
Mr. Prasad Gaikwad which unfortunately is stated to be filed on behalf of
respondent No.1. In fact, we have no manner of doubt that our observations on
the reply affidavit of Mr. Prasad Gaikwad stands compounded, when we dwell
deep into the merits of the matter. In these circumstances, we reject Mr.
Sukhadeo's contention that the Court considering the reply affidavit needs to
hold that the petitioner is not entitled to claim the compensation. We may also
observe that as a Constitutional Court, we also cannot be oblivious of an
Officer of a public body taking a totally untenable stand, contrary to the rule of
law, which in our opinion, is required to be seriously dealt in passing
appropriate orders as to costs.
28. In the light of the above discussion, we are of the clear opinion that the
petition needs to succeed as respondent No.1 certainly is under a mandate of
law to grant compensation to the petitioner in the form of TDR or otherwise.
Further, in the manner in which the petitioner has been deprived of his
legitimate entitlement to receive compensation in the form of TDR/FSI when
the petitioner's land was not subject matter of acquisition by following the
procedure of Land Acquisition Act and the possession being taken over
1 (2013) 1 SCC 353
2 (2020) 2 SCC 569
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without compensation being paid, to the petitioner, in our opinion, in the
alternative the petitioner would also become entitled for payment of monetary
compensation instead of TDR (See: Indore Development Authority Vs.
Manoharlal & Ors3.). We are accordingly inclined to dispose of the petition by
the following order:
ORDER
i. Respondent No.1 is directed to grant the petitioner
TDR/FSI equivalent to the monetary compensation and by
considering the issuance of "Pra-Patra (a) and (b)" as granted
to the petitioner in pursuance of our order dated 11 October
2024.
ii. In the alternative to (i) above, in the peculiar facts of
the case, there shall be also an option to the petitioner to
receive either the TDR/FSI and / or to receive monetary
compensation as per the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 considering the
law as laid down by the Supreme Court in Indore
Development Authority (supra).
3 (2020) 8 SCC 129
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iii. In the event, the petitioner intends to accept the
TDR/FSI, the same be released in favour of the petitioner
within one week of the petitioner informing the Deputy
Director, Town Planning, his intention to avail the TDR.
iv. In the event, the petitioner is not interested to avail
of the TDR, in that event, respondent No.1 shall pay to the
petitioner monetary compensation as per the provisions of
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013,
within a period of six weeks of making such request, along
with appropriate interest calculated from the day the
petitioner was deprived of his land till payment.
29. Although, the above directions would meet the ends of justice, we would
be failing in our duty if we do not pass an appropriate order as to costs, to be
paid to the petitioner and considering the brazenly illegal and mischievous
stand taken by the deponent of the affidavit. We are not informed by Mr.
Sukhadeo that the reply affidavit has received any approval from the highest
Authority in the Municipal Corporation and we will not permit any post facto
and / or any further approval to be placed on record more particularly,
considering the peculiar facts of the case. At this stage, Mr. Sukhadeo has
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pointed out that the deponent is the highest authority and no approval for
filing of such affidavit before the Court was necessary and Mr. Prasad Gaikwad
has filed this affidavit in his own authority.
30. In this view of the matter, we direct that Mr. Prasad Gaikwad, Deputy
Director, Town Planning shall personally pay a cost of Rs.50,000/- to the
petitioner within a period of 10 days from today, failing which the Municipal
Corporation shall recover the same from his emoluments and pay the same to
the petitioner.
31. The petition accordingly stands allowed in the aforesaid terms.
32. Disposed of.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
15 October, 2024
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