Supreme Court - Daily Orders
Ajit Giridharilal Nahar vs Maharashtra State P.W.D. Employees Co ... on 18 May, 2022
Bench: K.M. Joseph, Hrishikesh Roy
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4153 OF 2022
(Arising out of SLP (C)No. 1160 of 2018)
AJIT GIRIDHARILAL NAHAR APPELLANT(S)
VERSUS
MAHARASHTRA STATE P.W.D. EMPLOYEES
COOPERATIVE HOUSING SOCIETY LTD. & ORS. RESPONDENT(S)
O R D E R
(1) Leave granted.
(2) The first respondent filed writ petition challenging
Resolution No. 505 passed by the second respondent which is, the Pune Municipal Corporation, declaring the part of the property of the first respondent as the public road under Section 205 of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as ‘1949 Act’ for brevity). The first respondent also laid a challenge to the order dated 15.06.2015. The third respondent is State of Maharashtra.
Signature Not Verified(3) The High Court by the impugned judgment has allowed Digitally signed by Nidhi Ahuja Date: 2022.05.21 10:19:46 IST Reason: the writ petition and quashed the notification finding that invocation of power under Section 205 of the 1949 Act was 1 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) illegal. The High Court has proceeded to find that Section 209 along with Section 77 and Section 78 clothed the authority with the power to acquire the land and there is no power available, in these facts, to resort to Section 205. (4) The appellant purchased property bearing Survey No. 149 in the year 2009. The first respondent is the owner of land bearing Survey No. 38 and 39. The land of the first respondent-Society is located to the north of the appellant’s land. The property of the first respondent- Society admeasures about 3464 square meters. The complaint stems from the fact that according to the appellant, his land is landlocked; there is no access to his property. The dispute falls to be determined with reference to 130 square meters which according to the appellant, he is entitled to get from the open space area of the first respondent- society. By application dated 11.01.2011, the appellant approached the first respondent and requested for access road through the open space area. The request was made on perpetual lease basis. He pointed out his willingness to pay the necessary charge. Finding that there was no response from respondent No. 1, the appellant applied on 20.04.2012 to the second respondent-corporation. The second respondent-corporation issued notice dated 01.06.2012 to the Chairman of the first respondent-society. The first respondent-society objected to the proposal. Thereafter, the appellant requested to the first respondent by letter 2 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) dated 20.09.12 to consider providing of an access road from their open space area. On 12.12.2013, the Managing Committee of the first respondent-society passed resolution No. 108:
“RESOLUTION NO. 108
Mr. Ajit Nahra, Plot No. 46, Bharatkunj Vasahat No. 2 Erandwane, Pune-38 is having plot adjacent to our society building BK-2. Society has given its approval for laying approach road to this adjacent plot. Mr. Ajit Nahar has given a letter to society requesting to grant him ‘No-objection certificate’ for measurement of said land. Managing committee discussed this subject and IT is Resolved that for the purpose of carrying out measurement of land under proposed road, No-objection letter be issued. Resolution is passed unanimously.” (5) The appellant agreed to pay Rs. 15 lakhs. There was another resolution on 28.12.2013:
“Resolution No. 108: The society has given approval to give approach road to Shri Ajit Girdharilal Nahar, Plot 46, Bharatkunj Vasahat, Erandawana, Pune-38. They have requested Shri Ajit Nahar to get done Govt. Demarcation, and to give no objection for making Govt. demarcation of the plot. After discussion it was decided to give no objection and committee has given unanimous approval.” On 30.12.2013, the appellant gave three cheques of Rs. 5 lakhs each. It is the appellant’s further case that such cheques were encahsed by the first respondent. On 10.1.2014, the first respondent gave a NOC subject to certain condition. However, subsequently the first respondent passed resolution in special general meeting to refuse permission for access. The second respondent passed 3 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) resolution on 23.12.2014 by which it decided to approve access.
(6) Respondent No. 1 had objected to the same vide communication dated 25.02.2015. The Commissioner directed the authorities to look into the grievance. The action was found proper on 14.05.2015. The Municipal Commissioner, on 15.06.2015, ordered permitting of a public street of six meters width through the open space in the sanctioned layout of the first respondent-society.
(7) It is, accordingly, feeling aggrieved that the first respondent challenged the proceedings as noted. (8) The High Court by the impugned judgment has found that respondent No. 2 was not justified in invoking Section 205 and this is after referring to Section 209 and Section 77 to
79. The reasoning is that if the owner of the private land has not consented for making a public street, recourse has to be made to Section 77 or Section 78. Both sections require the corporation to pay compensation. The resolution dated 23.12.2014 specifically provided that no compensation will be payable to the first respondent. It is found that there is no application of mind by the municipal corporation to the question whether municipal corporation can acquire the land of the first respondent by paying compensation to the first respondent. Recourse must be taken to Sections 77 and 78, if public street is to be made on a private land and 4 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) both the sections contemplate payment of compensation. (9) In regard to the stand of the corporation which is dealt with we find that what has engaged the attention of the High Court was paragraph XVI of the counter affidavit of the second respondent. The High Court discussed this aspect in paragraph 16 of its judgment. In regard to the complaint of the appellant about the action of the first respondent in accepting the amount as consideration for grant of permission, the appellant was left free to initiate appropriate proceedings against the first respondent for claiming refund of Rs.15 lakhs. The question as to whether the second respondent could acquire the land was left open. The resolution was declared illegal. Consequently, order dated 15.06.2015 was quashed.
(10) We have heard the learned counsel appearing on behalf of the appellant, learned counsel appearing on behalf of the first respondent and the learned counsel appearing for the second respondent.
(11) Learned counsel for the appellant would refer to the facts which we have noted. He would point out that the case of the appellant is that the appellant has parted with a large sums of money in the year 2014 viz., Rs.15 lakhs. The resolution which has been passed by the first respondent bears testimony to the first respondent resolving to accept the request of the appellant. However, they are on the basis of the special body resolution of the body dated 5 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) 23.12.2014.
(12) Learned counsel would, more importantly, point out that there is power with the second respondent under Section 205 to have done what is done. He invoked Section 205 (a) and (b). He emphasised the injustice that is caused to the appellant. The land is lying adjacent to each other. The only way out for the appellant is through the property of the first respondent. Next he submits that it is pertinent to note that the land in question which is to be used as access by the appellant is any way set out since 1978 as meant for access. This he submits by pointing out to the map which is also produced before the High Court. The map would show the following endorsement:
“For the purpose of proper circulation of road pattern and to have continuity of the water & drainage system and other service…. for the development of the adjacent land the PMC reserves the right to permit access and extension of the internal roads & services through the land under layout/ sub-division.” (13) He would, therefore, submit that in terms of this condition which is binding on the first respondent, the appellant is entitled to succeed. It is further emphasised that finality in this regard is attained by the first respondent accepting the condition by not preferring an appeal against the same under Section 47 of the Maharashtra Regional and Town Planning Act, 1966. The layout, in other words, of the first respondent has been approved subject to 6 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) the condition and the first respondent has acted upon the same and constructions have been made. Learned counsel for the second respondent also supports the appellant. He would, in fact, emphasise that this aspect was indeed referred to in the counter affidavit filed by it before the High Court.
However, the High Court has not adverted to or discussed this aspect.
(14) Per contra, learned counsel for the first respondent would, in the first place, point out that this Court issued notice only for the purpose of bringing about a settlement. Though attempts were made, settlement has not been arrived at. Secondly, he would submit that the impugned judgment of the High Court, on interpreting Section 205, 209 and 77 to 79 is perfectly justified. As far as the contention pointing out to the condition which is imposed since 1978 for the grant of permission and the approval of the layout plan, it is pointed out that it was only a right reserved for ensuring proper circulation of road pattern. (15) Having heard the learned counsel for the parties, in the first place, we must consider the impact of Court issuing notice only for the purpose of settlement. When we went through the orders, we find that this matter did engage the attention of another Bench before which it was heard. We also notice it was, in fact, part heard and it is, thereafter, the matter has come up before this Bench. This Court also while the matter was pending had attempted to 7 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) bring about a settlement. It has not worked out. Having regard to the issues which are raised, we would think and also the fact that the matter was heard quite elaborately earlier also, we would think that the matter must receive attention also on merits. However, we cannot also overlook the fact that the aspect relating to the imposing of the condition for approving the layout in 1978 has not been gone into by the High Court despite the specific pleading which is pressed before us by the appellant and the municipality. What was challenged before the High Court was a proceeding purporting to invoke Section 205. What would be the impact of the reservation in the year 1978 claimed by the appellant and the second respondent on the invocation of the power under Section 205 has not been considered. The first respondent, we may notice, has a case that the appellant has another alternate way. The question as to whether even if ultimately in the wake of the conditions imposed in the year 1978, the discretionary jurisdiction under Article 226 should be exercised in favour of the first respondent, also is a matter which may have to be considered. This is apart from the fact that the first respondent has been paid a sum of Rs.15 lakhs in the year 2014. It is true that the first respondent has also expressed its willingness to return the same within two months. Another question which may have to be considered is in the light of Section 205 as to whether it could be said that having regard to all that has 8 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) happened, the case should be treated as falling under Section 205(b). We would think that in the circumstances of the case, the matter must receive the attention of the High Court and a remand is unavoidable. Hence we allow the appeal, set aside the impugned judgment and remit the matter back to the High Court so that the aspects which we have adverted to may receive the attention of the High Court.
In the circumstances of the case, we request the High Court to dispose of the matter within a period of six months from the date a copy of the judgment is produced before the High Court.
There will be no orders as to costs.
…………………………………………………………………., J.
[ K.M. JOSEPH ] …………………………………………………………………., J.
[ HRISHIKESH ROY ] New Delhi;
May 18, 2022.
9 CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) ITEM NO.1 COURT NO.9 SECTION III S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No. 4153/2022 AJIT GIRIDHARILAL NAHAR Appellant(s) VERSUS MAHARASHTRA STATE P.W.D. EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. & ANR. Respondent(s) [FOR DIRECTIONS] (With IA No. 141218/2017 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No. 141219/2017 - EXEMPTION FROM FILING O.T. and IA No. 22021/2018 - EXEMPTION FROM FILING O.T. and IA No. 34990/2018 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES and IA No. 22020/2018 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 18-05-2022 This matter was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE K.M. JOSEPH HON'BLE MR. JUSTICE HRISHIKESH ROY For Appellant(s) Mr. Sudhanshu S. Choudhari, AOR Mr. Mahesh Shinde, Adv.
Ms. Rucha A. Pande, Adv.
Mr. Ajinkya Udane, Adv.
For Respondent(s) Mr. Makarand D. Adkar, Adv.
Mr. Vijay Kumar, Adv.
Mr. Dhaval S. Deshpande, Adv.
Mr. Shantanu M. Adkar, Adv.
Ms. Aparna Jha, AOR Mr. Samrat K. Shinde, Adv.
Mr. Rahul Chitnis, Adv.
Mr. Sachin Patil, AOR Mr. Aaditya A. Pande, Adv.
Mr. Geo Joseph, Adv.
Ms. Shwetal Shepal, Adv.
Mr. Shivaji M. Jadhav, Adv.
Mr. Anish R. Shah, Adv.10
CA NO. 4153/ 2022(@ SLP (C)No. 1160/2018) Mr. Brijkishor Sah, Adv.
M/s. S.M. Jadhav and Company, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending applications stand disposed of.
(NIDHI AHUJA) (RENU KAPOOR)
AR-cum-PS BRANCH OFFICER
[Signed order is placed on the file.]
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