Bombay High Court
Mr. Dhanraj S/O Harichand Khandelwal vs The State Of Maharashtra, Thr. Its ... on 30 September, 2021
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Anil S. Kilor
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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2/7 Judg.15.wp.672.2019
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 ::: Uploaded on - 01/10/2021 ::: Downloaded on - 02/10/2021 22:20:36 ::: 3/7 Judg.15.wp.672.2019 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 ::: Uploaded on - 01/10/2021 ::: Downloaded on - 02/10/2021 22:20:36 ::: 4/7 Judg.15.wp.672.2019 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 ::: Uploaded on - 01/10/2021 ::: Downloaded on - 02/10/2021 22:20:36 ::: 5/7 Judg.15.wp.672.2019 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 ::: Uploaded on - 01/10/2021 ::: Downloaded on - 02/10/2021 22:20:36 ::: 6/7 Judg.15.wp.672.2019 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 ::: Uploaded on - 01/10/2021 ::: Downloaded on - 02/10/2021 22:20:36 ::: 7/7 Judg.15.wp.672.2019 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
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