Full Judgment Text
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PETITIONER:
MUNICIPAL CORPORATION, INDORE
Vs.
RESPONDENT:
SHRI K.N. PALSHIKAR, INDORE
DATE OF JUDGMENT:
06/09/1968
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
BACHAWAT, R.S.
HEGDE, K.S.
CITATION:
1969 AIR 579 1969 SCR (2) 13
ACT:
Madhya Bharat Municipal Corporation Act, 1956, ss. 305, 387,
392-Application for fixation of compensation for land
acquired by municipality-Solatium whether payable in
addition to compensation-High Court in revision whether can
consider question of sufficiency of compensation as fixed by
District Judge-Municipality whether can withdraw from
acquisition proceedings.
HEADNOTE:
The appellant corporation in accordance with its Road
Widening Scheme sought to acquire some of the land belonging
to the respondent. The ’respondent was not satisfied with
the compensation offered by the appellant or awarded by the
arbitrators, and under 8. 387(4) and (5) of the Madhya
Bharat Municipal Corporation Act, 1956 he filed an
application for fixation of compensation in the Court of
the District Judge, Indore. The appellant in its reply
submitted that the compensation awarded by the arbitrator
was too low. The Additional District Judge rejected an
application filed by the appellant for withdrawing its
claim over a portion of the land in question. He fixed
compensation for the land at the rate of Rs. 30/- per sq.
ft. with interest at 6% per annum from the date of the
delivery of the possession, and also awarded a solatium of
15% to the respondent. The ’revision application filed
against the judgment of the Additional District Judge by
the Corporation was dismissed by the High Court. On the
question of compensation the High Court held that it could
not interfere with the order of the Additional District
Judge as he had committed no irregularity in the exercise cf
his jurisdiction. By special leave the Corporation appealed
to this Court. The questions that fell for consideration
were (i) whether the Corporation was entitled under law to
withdraw from acquisition proceedings, (ii) whether the
respondent was entitled under the Act to a solatium in
addition to the compensation, (iii) whether the High Court
was right in ’refusing to go into the question of
sufficiency of compensation.
HELD: (i) There was no provision in the Act for
enabling the .Corporation to withdraw from the acquisition
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proceedings. In fact there automatic vesting of land in
the Corporation under s. 305 once the requisite conditions
were satisfied. [17 B-C]
(ii) The Additional District Judge was right in awarding
15% solatium. [ 19 E]
The Borough Municipality of Ahmedabad v. Yavendra
Vajubhai Divatis, I.L.R. [1937] Bom. 632, approved and
applied.
(iii) The High Court could not in a revision under s.
392 go into questions of fact and determine the amount of
compensation and it was right in declining to go into. the
question. Even if the powers under s. 392 are wider than
those under s. 115 of the Code of Civil Procedure they do
not extend to determining questions of fact. [19 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1137 and
1138 of 1965.
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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,
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Palshikar, accepted para 10 of the application.
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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
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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
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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 with-
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draw 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
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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,
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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
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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.
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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
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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
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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.
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