Bombay High Court
Bhiwandi Nizampur City Municipal ... vs Shri Vilas Kashinath Patil & Ors on 10 August, 2010
Author: D.G. Karnik
Bench: D.G. Karnik
1 WP No.1822/09
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
WRIT PETITION NO.1822 of 2009
Bhiwandi Nizampur City Municipal Corporation,
Bhiwandi ... Petitioner
versus
Shri Vilas Kashinath Patil & ors. ... Respondents
ig ...
Mr. N.R.Bubna for the petitioner.
Mr.Rajesh S. Datar for the respondents.
CORAM : D.G. KARNIK, J.
DATED : 10th August 2010
ORAL ORDER:-
1. Rule, returnable forthwith. Mr.Datar waives service for the respondent. By consent, heard forthwith.
2. The short question that arises for determination in this petition is, whether a municipal corporation established under the Bombay Provincial Municipal Corporation Act, 1949 is entitled to acquire private property of a citizen by offering him Floor Space ::: Downloaded on - 09/06/2013 16:15:47 ::: 2 WP No.1822/09 Index (for short the "FSI") or Transferable Development Rights (for short the "TDR") in lieu of compensation for acquisition of the land without the consent of the owner.
3. Respondents are the owners of the property bearing parts of survey nos.65, 66, 69, 73, 74 and 92 of Revenue Village Chavindra (hereinafter referred to "suit lands"), situated within the limits of Bhiwandi Nizampur City Municipal Corporation, a corporation established under the Bombay Provincial Municipal Corporation Act, 1949. A Development Plan for the city of Bhiwandi has been prepared and approved under the provisions of Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act").
The development plan proposes making of several roads in the city of Bhiwandi. The petitioner municipal corporation desires to construct a road through the suit lands in accordance with the development plan. According to the respondents, the road shown in development plan does not pass through their lands and it is not necessary to acquire their lands for the purpose of construction of the development plan road. Though it is disputed whether respondents' lands are required for the purpose of construction of the development plan road, I am prepared to assume for the purpose of this petition that the development road passes through the suit lands as in my view, that would not alter the ultimate order that is proposed to be passed in the petition.
4. The petitioner initiated talks with the respondents on or ::: Downloaded on - 09/06/2013 16:15:47 ::: 3 WP No.1822/09 about 11 December 2007 for acquisition on the suit lands by mutual consent. A meeting was convened by the City Engineer with the respondents on 13 December 2007 for discussion regarding the construction of the development plan road through the suit lands and the compensation to be paid for the acquisition. In the meeting, the petitioner proposed that it would offer an additional FSI or TDR in lieu of monetary compensation for acquisition of the suit lands. The respondents declined the offer of the municipal corporation of transferring their lands to the petitioner by accepting the FSI or the TDR in lieu of monetary compensation and demanded payment of monetary compensation at the market rate, which according to them was Rs.4,000/- per sq. yard. The talks failed. According to the respondents on failure of the talks and on failure to reach any agreement regarding the compensation, the petitioner high-handedly and without the respondents' consent started construction of the development road by making a forcible entry into the suit lands. After issuing a statutory notice the respondents filed a suit, bearing Regular Civil Suit no.77 of 2008, for injunction restraining the petitioner from entering upon the suit lands and constructing any road thereon without the acquisition of the suit lands in accordance with law. In the suit, respondents applied for an interim injunction during the pendency of the suit. The trial Court refused the application but on appeal, the appellate Court granted a temporary injunction to be operative during the pendency of the suit. Aggrieved by the decision of the appellate court, the petitioner has approached this ::: Downloaded on - 09/06/2013 16:15:47 ::: 4 WP No.1822/09 Court.
5. Relying upon section 126 of the MRTP Act, learned counsel for the petitioner submitted that petitioner has a right to acquire the suit lands for the purpose of a construction of a road provided under the Development Plan by offering the FSI or the TDR in lieu of the monetary compensation. The respondents are bound to accept the FSI or the TDR in lieu of the monetary compensation and they cannot insist upon acquisition of their lands by payment of market price in accordance with provisions of the Land Acquisition Act and/or section 77 and 78 of the Bombay Provincial Municipal Corporation Act. Since the petitioner had offered the FSI / TDR and was still willing to offer it, it was entitled to acquire the suit lands and enter upon it.
6. Learned counsel for the petitioner further submitted that construction of the road was necessary for free flow of vehicles in the city. The road was being constructed in the public interest.
Grant of injunction to the construction of the road would cause severe inconvenience to the members of the public who suffer traffic congestion. The balance of convenience was therefore in favour of the petitioner. Injunction therefore ought to have been refused by the appellate court.
7. Section 126 of the MRTP Act provides for the acquisition of a ::: Downloaded on - 09/06/2013 16:15:47 ::: 5 WP No.1822/09 land required for a public purpose specified in a development plan. Sub-section (1) of section 126 reads thus:-
(1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land
(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-
owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority, or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894, Floor Space Index (FS) or Transferable Development ::: Downloaded on - 09/06/2013 16:15:47 ::: 6 WP No.1822/09 Rights(TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land (together with the amenity) if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this section or under the Land Acquisition Act, 1894, as the case may be, shall vest in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority)
8. Sub-section (1) of section 126 of the MRTP Act authorises the Planning Authority, Development Authority or any Appropriate Authority to acquire any land which is required or reserved for any of the public purposes specified in any plan or scheme prepared under the Act. Sub-section (1) of section 126 of the MRTP Act prescribes three modes of payment of compensation for acquiring any land of a citizen. The three modes of compensation are ::: Downloaded on - 09/06/2013 16:15:47 ::: 7 WP No.1822/09 provided under clauses (a), (b) and (c) of sub-section(1) of Section 126. Clause (a) provides for payment of compensation by agreement i.e. to say that a land can be acquired by paying to the owner of the land the amount agreed between the owner and the acquiring body. Clause (b) provides that in lieu of the agreed amount, the Planning Authority can grant to the land owner or the lessee the FSI or the TDR against the area of the land surrendered free of cost and free from all encumbrances and also further additional FSI or TDR against the development or construction of the amenities on the surrendered land at his cost. The value of the land depends upon its building potential. The owner of a land can be compensated, if agreed to by him, by granting him a building potential in the shape of the FSI or the TDR. The owner of the land may then use the FSI for building additional buildings or structures in his remaining land or may utilise the TDR by constructing a building at some other place or sell or transfer it for a consideration and thereby compensate himself for the loss of the land. Clause (c) provides for the acquisition of land in accordance with the provisions of the Land Acquisition Act, 1894. The three clauses (a), (b) and (c) appearing in sub-section (1) of section 126 are connected with each other by a disjunctive conjunction "or".
Counsel for the petitioner submitted that use of the word "or" contemplates that acquiring body would have an option to apply either of the three modes and if the acquiring body closes to apply clause (b) the owner would have no option but to accept the FSI or the TDR in lieu of the monetary compensation. According to ::: Downloaded on - 09/06/2013 16:15:47 ::: 8 WP No.1822/09 him, the option to proceed under either of the clauses (a) (b) or
(c) lies with the acquiring body and if the acquiring body chooses to apply clause (b), the land owner cannot insist upon payment of monetary compensation. He cannot insist that the acquiring body must proceed under clause (c ).
8. Submission of learned counsel for the petitioner, attractive as it appears to be at the first blush, cannot be accepted for the reasons indicated below.
9. It is true that clauses (a) and (b) are separated by a conjunction "or". The word "or" would indicate that clauses (a),
(b) and (c) are alternate to each other that is to say that all clauses (a) and (b) cannot be applied simultaneously. Only one of the Clauses (a) or (b) or (c) can be applied. So far there is no difficulty. The question is whether this option of applying clause
(a) or (b) or (c) rests with the acquiring body or rests with the owner. In my view, the option rests with the owner. Any statute which authorises taking away of a property of a citizen must be construed strictly. If there is any ambiguity and two interpretations are reasonably possible, the interpretation which favors the citizen must be accepted. So construed the option given under clause (a) or (b) or (c) must be held to be available to the owner of the land and not to the acquiring body.
::: Downloaded on - 09/06/2013 16:15:47 ::: 9 WP No.1822/0910. There is yet another reason which militates against the stand of the petitioner municipal corporation. The opening words of clause (b) "in lieu of any such amount" refer to the amount which is agreed to under clause (a) of Section 126(1) of the MRTP Act. If there is no amount agreed to under clause (a) there would be no question of applying clause (b) at all. It is only when an amount is agreed to between the parties under clause (a) that in lieu of such amount the parties can further agree upon the FSI or the TDR in lieu of that amount. Clause (b) would not apply when the parties do not agree upon an amount because the FSI or the TDR provided under clause (b) is "in lieu of such (agreed) amount". Clause (c) of Section 126(1) of the MRTP Act provides the general rule that applies where the parties do not agree upon the amount of compensation or the FSI or the TDR in lieu thereof by mutual consent. It provides for acquisition of the property in accordance with the provisions of the Land Acquisition Act, 1894. Ordinarily that is the usual mode of acquisition of any property. In lieu of the usual mode, two modes in addition to the usual mode are provided in clauses (a) and (b) but they are subject to an agreement between the parties. In the absence of any agreement between the parties, the only mode for the acquisition of the property is under clause i.e acquisition under the Land Acquisition Act. Procedure for acquiring of the property under Land Acquisition Act, 1894 with some modifications thereto has been provided under sub- section (2) to (4) of section 126 of the MRTP Act.
::: Downloaded on - 09/06/2013 16:15:47 ::: 10 WP No.1822/0911. In the present case, there was no agreement between the parties as to the amount to be paid to the Respondents (owners) in lieu of the compensation nor was there any agreement between the parties for accepting the FSI or the TDR in lieu of the agreed amount of compensation. Consequently, it was not permissible for the petitioner to compel the respondents to accept the FSI or the TDR in lieu of the monetary compensation. In the absence of any agreement, compensation is required to be paid in accordance with the provisions of the Land Acquisition Act, subject to the modifications provided under sub-section (2) to (4) of section 126 of the MRTP Act.
12. As regards the balance of convenience, undoubtedly, it would be in favour of the petitioner. With the congestion of the roads in almost every city and town, construction of roads is undoubtedly a priority. It need not be emphasised that traffic congestion leads to a more number of vehicles remaining on the road for longer periods thereby polluting air for longer period of time. Stressing this aspect, relying upon a decision of Gujarat High Court in Daulatsinghji Savanshsinhi & ors. Vs. Executive Engineer, Himmatnagar & ors, AIR 1997 Guj 64, the Learned counsel for the petitioner submitted that injunction ought to have been refused as the balance of convenience was against the petitioner. In Daulatsinghji's case, a Single Judge of the Gujarat High Court refused to grant an injunction against the construction of a road ::: Downloaded on - 09/06/2013 16:15:47 ::: 11 WP No.1822/09 passing through private land on the ground that by grant of injunction right to life of other rural people to have easy access would be affected. Article 300A of the Constitution of India confers on a person a right to hold the property and says that no person shall be deprived of his property save by authority of law. The constitutional right of the respondents not to be deprived of their property except by authority of law cannot be taken away by dispossessing them without acquiring their property in accordance with law. No matter of balance of convenience and no matter of public interest can deprive a citizen of his constitutional right of retaining his property which cannot be taken away except by authority of law. Consequently, I am unable to subscribe to the view of refusing an interim injunction on the ground of balance of convenience where refusal to grant an injunction is likely to lead to an infringement of a constitutional right of a citizen.
Respondents cannot be deprived of their property and petitioner cannot enter upon their property for carrying out the construction of the road without following due process of law. Consequently, the order of the lower appellate court granting injunction must be upheld.
13. For these reasons, there is no merit in the writ petition which is hereby dismissed. Rule discharged without any order as to costs.
(D.G. KARNIK,J.) ::: Downloaded on - 09/06/2013 16:15:47 :::