CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1137 and 1138 of 1965.
Appeals by special leave from the judgment and orders dated October 12, 1962 and December 19, 1962 of the Madhya Pradesh High Court, Indore Bench in Civil Revision Nos. 195 and 497 of 1962 respectively.
B.P. Jhanjharia, and P.C. Bhartari, for the appellant (in both the appeals ).
P.K. Saksena and A.G. Ratnaparkhi, for the respondent (in both the appeals ). The Judgment of the Court was delivered by
Sikri, J. These appeals by special leave are directed against the judgment of the Madhya Pradesh. High Court in two Civil Revisions, Civil Revision No. 195 of 1962 and Civil Revision No. 497 of 1962. These revisions came to be filed in the High Court in the following circumstances.
On January 21, 1961, the respondent K.N. Palshikarhereinafter referred to as the applicant-filed an application under ss. 387(4) and (5) of the Madhya Bharat Municipal Corporation Act, 1956 hereinafter referred to as the Act--in the Court of District Judge, Indore. He alleged that the Municipal Corporation by its memo No. 816 dated October 30, 1959, had informed him that in accordance with the Road Widening Scheme a set back of total, area of 1455.1 sq. ft. had been cut down from his land comprised in House No. 1 (New No. 38) on Road No. 1, Choti Gwaltoli No. 1, Indore, and that the Municipal Corporation proposed to give him compensation only at the rate of Rs. 2-50 per sq .ft. which was not acceptable to him. He further alleged that the arbitrators appointed by the parties had given an award which was also not acceptable to him. The arbitrators had given Rs. 50/- per sq. ft. while he demanded Rs. 145/per sq. ft. The Municipal Corporation in its reply dated February 28, 1961, submitted that the compensation given by the arbitrators was very much in excess of the actual price of the land and prayed that the application be dismissed.
Various issues were framed by the Additional District Judge, Indore, but they were all directed to determining the fair amount of compensation including interest.
The Municipal Corporation also applied on January 19, 1961, under s. 387(4) of the Act praying mat me price of the land be settled as per s. 387(4). In para 10 of this application it was alleged that the memo regarding set back was issued on October 30, 1959, and therefore the price is to be settled at the rates prevailing on that date.
In his reply to this application the applicant, Palshikar, accepted para 10 of the application.
The Additional District Judge on February 6, 1962, disposed of both the applications by one order and he fixed the compensation of land in question at the rate of Rs..30/per sq. ft. with interest at 6% per annum from the date of the delivery of the possession. He further ordered that the applicant shall be entitled to 15% solatium as decided by the award. He also valued the structure.
During the pendency of these applications the Municipal Corporation applied on August 1, 1961, to the Additional District Judge for withdrawing the claim of the Corporation over a portion of the land in question. On February 2, 1962, the Additional District Judge passed the following order
"The N.A. applied that the Improvement
Board is going to acquire portion of the land
in question and hence the N.A. shall not be
compelled to acquire this land. At present
there is nothing to show that the
Improvement Trust is going to acquire the
land. Moreover, I have to fix the
compensation in the case. The N.A. may or may
not acquire the land at its own risk. The
application is rejected."
Against the common order of the Additional District Judge three revisions, two by the Municipal Corporation and one by the applicant, were filed. Civil Revision No. 195 of 1962 was filed the Municipal Corporation alleging that the compensation awarded by the learned Additional District Judge was excessive and praying that fair compensation be fixed.
The High Court held that the Additional District Judge had given opportunity to the parties to lead evidence and determined the amount of compensation after hearing the parties and in these circumstances it could not be said that he was guilty of committing irregularity in the exercise of his jurisdiction, even assuming that the amount determined as payable was either too high or too low. The High Court then dealt with the point raised by the learned counsel for the Municipal Corporation that the Additional District Judge had refused to permit the Corporation to withdraw the acquisition proceedings and had thus refused to exercise jurisdiction. The High Court held that in a proceeding under s. 387 (4 ) of the Act there was no provision to enable the Corporation to withdraw from any setback already given and no statutory provision had been pointed out entitling the Court to permit the Corporation to withdraw. In the result the High Court dismissed the revision petition.
In the meantime the applicant filed an application under s. 388 of the Act for execution of the order of the Additional District Judge dated February 6, 1962. The Corporation objected to the execution on the ground that the applicant had not given possession of the disputed land to the Corporation nor had he executed a sale deed with respect to it in its favour. The applicant controverted these objections and submitted that demand of possession prior to deposit of the decretal amount was illegal and contrary to s. 387(5) of the Act. lie further submitted that under s. 305 of the Act the vesting of the property occurs immediately when,the rebuilding starts and, therefore, there is no necessity of executing the sale deed. The Corporation again filed an application for permission to withdraw from the acquisition proceedings and in the alternative it was prayed that the money deposited in Court against this execution case may be given to the applicant only when he gives vacant possession of the land covered by the set back scheme.
The Additional District Judge by his order dated October 31, 1962, repelled these contentions and allowed the applicant to withdraw the money deposited by the Corporation. Against this order the Corporation filed Civil Revision No. 497 of 1962 to the High Court. The High Court by its judgment dated December 19, 1962, held that "the terms of section 387(5) indicate that taking of possession of the property has to. follow the payment of the amount of compensation determined by the Court. In view of the terms of this provision it is not correct to contend that the opponent (applicant) ought first to secure vacant possession of the property and then alone can claim to withdraw the compensation amount." The High Court noted in the order that the applicant was willing to. give such possession as he himself could. This is the second judgment of the High Court against which the Court gave leave to appeal. The learned counsel for the Corporation contends:
(1 ) that approval of the site plan
will not divest the applicant of the ownership
and, therefore, it was possible for the
Corporation to withdraw from the acquisition
proceedings;
(2) when the projecting portion is the
main building no compensation is payable
unless the rebuilding starts and the portion
is cleared;
(3) that the Act provides only for
compensation and not for solatium and
(4) that the amount of compensation is
excessive.
The learned counsel for the applicant, palshikar, made a statement before us that he was willing to deposit Rs. 6,000/- in the District Court,within ’four months in respect of the area which is in possession of the tenants and that he will be entitled to withdraw this amount once the possession is given to the Corporation and not before. In view of this undertaking it is not necessary to determine point No. 2. The point is not free from doubt and we hesitate to express our opinion when the point has become academic in view of the undertaking given by the learned counsel for the applicant, Palshikar.
Regarding point No. 1, we agree with the High Court that there is no provision in the Act for enabling the Corporation to withdraw from the acquisition proceedings. In fact, it seems to us that there iS automatic vesting of the land in the Corporation under s. 305 once the requisite conditions are satisfied Section 305 reads as follows:
"305. Power to regulate line of buildings.-
( 1 ) If any part of a building
projects beyond the regular line of a public
street, either as existing or as determined
for the future or beyond the front of
immediately adjoining buildings the
Corporation may-
(a) if the projecting part is a verandah,
step or some other structure external to the
main building then at any time, or
(b) if the projecting part is not such
external structure as aforesaid, then
whenever the greater portion of such building
or whenever any material portion of such
projecting part has been taken down or
burned down or has. fallen down,
require by notice either that the part or
some portion of the part projecting beyond the
regular line or beyond the front of the
immediate adjoining building, shall be
removed, or that such building when being
rebuilt shall be set back to or towards the
said line or front; and the portion of land
added to the street, by such setting back or
removal shall henceforth be deemed to be part
of the public street and shall vest in the
Corporation:
Provided that the Corporation shall make
reasonable compensation to the owner for any
damage or loss he may sustain in consequence
of his building or any part thereof being set
back,
(2) The Corporation may, on such terms as
it thinks fit, allow any building to be set
forward for the improvement of the line of the
street." In this case it is not necessary to determine whether land affected by a notice vests when the notice is given or when the part or some portion of the part projecting beyond the regular line or beyond the front of the immediately adjoining building is removed, or when the building when being rebuilt is set back, because it seems to have been common ground between the parties that the date for the determination of compensation in this case is the date of the memo, i.e., October 30, 1959.
Coming to the third point, the relevant section which requires interpretation is s. 387 ( 3 ) which reads:
"387. Arbitration in cases of compensation,
etc.
(3) In the event of the Panchayat not
giving a decision within one month or such
other longer period as may be agreed to by
both the parties from the date of the
selection of Sarpanch or of the appointment by
the District Court of such members as may be
necessary to constitute the Panchayat, the
matter shall, on application by either party
be determined by the District Court which
shall, in cases in which the compensation is
claimed in respect of land, follow as far as
may be the procedure provided by the Land
Acquisition Act, 1894, for proceedings in
matters referred for the determination of the
Court;
Provided that--
(a) no application to the Collector for
a reference shall be necessary, and
(b) the court shall have full power to
give and apportion the costs of all the
proceedings in manner it The learned counsel for the applicant relies on the decision of the Bombay High Court in The Borough Municipality of Ahmedabad v. Javendra Vaiubhai Divatia(1). In that case Beaumont, C.J., interpreting s. 198 of the Bombay Municipal Boroughs Act (Born. Act XVHI of 1925), which section is, in terms, similar to s. 387 of the Act, observed as follows:
"There is no express provision in the
Bombay Municipal Boroughs Act allowing for
such addition to the compensation, but under
the Land Acquisition Act fifteen per cent is
allowed in respect of the compulsory nature
,of the acquisition, and the question is
whether that provision in the Land Acquisition
Act can be treated as incorporated into
section 198 of the Bombay Municipal Boroughs
Act as being part of the procedure provided
by the Land Acquisition Act. I agree that,
prima facie, a provision of this sort, adding
to the compensation to be payable for the
value of the land, is not aptly described as
Procedure, but still one has to look at the
Land Acquisition Act and note the phraseo(1) I.L.R. [1937] Borg. 632. logy adopted. One finds Part Iii headed "Reference to Court and Procedure thereon..." Then he referred to as. 23, 24 and 25 of the Land Acquisition Act and concluded:
"It seems to me that sections 23, 24
and 25 of the Act constitute a code laying
down the principles on which the District
Court is to act in arriving at the
compensation to be paid, and it is quite
impossible to leave out of that code sub-
section (2) of section 23, as Mr. Shah has
invited me to do. His contention is that the
fifteen per cent is an allowance of something
in addition to the value of the land, which
has to be paid for under the Municipal Act.
But the truth is that the sections determine
the basis on which the value of the land is to
be ascertained on compulsory purchase and the
allowance of the fifteen per cent must be set
off against matters disallowed under
section 24. Those pro.visions in the Land
Acquisition Act are contained in a Chapter
entitled "Reference to Court and Procedure
thereon" and I think that they must be treated
as applicable to proceedings in the District
Court under section 198 of the Bombay
Municipal Boroughs Act."
The learned counsel for the Corporation was not able to cite any authority which has dissented from this view. We agree with the reasoning of the learned Chief Justice and hold that the Additional District Judge.was right in awarding 15 per cent solatium.
Coming to the fourth point, the revision to the High Court was filed under s. 392 of the Act which provides that "notwithstanding anything to the contrary in any other law for the time being in force, the District Court shall exercise all the powers and jurisdiction expressly conferred on or vested in it by the provisions of this Act, and unless it is otherwise expressly provided by this Act, its decision shall be subject to revision by the High Court."’ The High Court could not, in a revision under s. 392, go into questions of fact and determine the amount of compensation, and the High Court was right in declining to deal with this question. It is not necessary to determine whether the powers of revision under s. 392 are the same as under s. 115, C.P.C., because even if the powers under s. 392 of the Act are wider than that under s. 115, C.P.C., they do not extend to determining questions fact. In view of this conclusion this. point cannot be agitated before us.
In the result the appeals fail, but the applicant--Shri Palshikar--shall deposit the amount of Rs. 6,000/- in the Court of the Additional District judge within four months, as stated by his counsel., and he shall be entitled to withdraw this amount once vacant possession is given of the land in dispute to the Corporation. If so requested by the applicant, Shri Palshikar, the Corporation should join as co-plaintiff in a suit or proceeding to be filed by him against the tenants for Securing possession. If it refuses to do so within 3 months from the date the applicant requires it to join as co-plaintiff the respondent may withdraw this Rs. 6,000/deposited by him. The Corporation shall also give such further assistance as may be required by the applicant in .accordance with law. The applicant shall be entitled to costs; one hearing fee. G.C. Appeals dismissed.