TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 2061
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....st Act, 1936 was issued on 27.11.1953 for acquiring 44.61 acres of land of the respondent. An award was passed on 31.12.1962 determining the compensation of Rs. 23,500/on the basis of compromise, which compensation amount was paid to the respondent and possession was taken over by the appellant of the land. On taking up the possession, the land vested in the appellant, which became the absolute owner. A statutory rule namely, Nagpur Improvement Trust Land Disposal Rules, 1955 was framed in exercise of power under Nagpur Improvement Trust Act, 1936 for disposal of land by the Nagpur Improvement Trust. As per Rule 3 of the Statutory Rules, 1955, one of the mode of transfer of trust land was by direct negotiation with the party. With regard to land admeasuring 44.61 acres as noted above, a policy decision was taken by the Board of the Trust dated 03.05.1968 for disposal of land to the owners on lease by charging the determined premium and the ground rent. The appellant accordingly invited application for re-allotment of the land on lease. The respondent filed an application dated 03.09.1975 for re-allotment of entire 44.61 acres of land. A decision dated 06.10.1975 was taken to reallo....
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....989, a lease was executed by the appellant in favour of respondent for 24 acres of land as was allotted by allotment letter dated 09.06.1982. The respondent filed a suit - Regular Civil Suit No. 2515 of 1989 against the Nagpur Improvement Trust, praying for following reliefs: (a) Declare that the plaintiff is entitled to re-allotment of 20.61 acres of her land to her to the exclusion of anybody else as the acquisition of the plaintiff's land for the purpose of defendant's scheme is not required by the defendant for its scheme. (b) Issue a mandatory injunction directing the defendant to reallot 20.61 acres of land out of survey no. 9/1, 11 and 9/2 of Mouza Godani, Umrer Road, Nagpur, to the plaintiff and execute a lease indenture accordingly in favour of the plaintiff. (c) Issue mandatory injunction directing the defendant to make the offer of her land admeasuring 20.61 acres of suit land S/Nos. 9/1, 11, 9/2 of Mouza Gondhani, Umrer Road, Nagpur to the plaintiffs land is not required by the defendant for its scheme and the defendant a permanently restrained from making offer of plaintiffs remaining suit land to anybody else in any manner and under any pretext. (d) Declare th....
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....owed the appeal, set aside the decree of the trial court and dismissed the suit. Against the judgment of the Appellate Court, second appeal was filed by the respondent before the High Court. The High Court framed following two substantial questions of law in the appeal: (1) Whether the lower appellate Court erred in applying and relying on the Nagpur Improvement Trust Land Disposal Rules, 1983, when in fact what was sought to be enforced by the appellant was the order dated 16.10.1975 in consonance with letter/order dated 06.10.1975 passed in terms of Board Resolution dated 03.05.1968, i.e. decision taken by the respondent much prior to the framing of Rules of 1983? (2) Once the Nagpur Improvement Trust, the acquiring body chooses to reallot the land acquired, whether such action of re-allotment can be enforced in the Court of Law? The High Court held that plaintiff was entitled for allotment of 20.61 acres of land in view of resolution of the Board dated 03.05.1968. The High Court also held that the Rules namely Nagpur Improvement Trust Land Disposal Rules, 1983 having came into force on 18.05.1983 was not applicable to the Board Resolution dated 03.05.1968 and the decision ....
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.... the Appellate Court was well within its jurisdiction to enter into the issue of limitation and hold that the suit was barred by time. The suit filed in the year 1989 was clearly barred by time and was rightly dismissed by the First Appellate Court. The High Court committed error in holding that Statutory Rules, 1983 were not applicable. 6. Shri Mukul Rohatgi, learned senior counsel refuting the submission of counsel for the appellant contends that plaintiff was clearly entitled for allotment of 20.61 acres of balance area of land as was already allotted by letter dated 16.10.1975. The allotment of land to the plaintiff was under Rule 5 of Rules, 1955. Hence, Division Bench judgment relied by the appellant in Transport Nagar Free Zone Co-operative Society Limited (supra) is not applicable. The resolution having been passed by the Board to re-allot area acquired from plaintiff, it was no longer a matter of contract. The letter dated 09.06.1982 allotting 24 acres of land cannot be said to be letter denying allotment of 44.61 acres, hence no cause of action arose to the plaintiff in the year 1982 and first time cause of action arose in the year 1989 when lease-deed was executed. Henc....
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....unicipal Corporation whenever possible. 4. The amount of consideration will have to be made in maximum 10 instalments and on the remaining unpaid amount of the consideration interest would be charged at the rate of 10% p.a. Hence you are required to deposit amount of Rs. 3,525/towards first instalment of the consideration in this office at the earliest and sign the form of terms and conditions of the allotment. Only after that the Trust would be able to take further action in the matter which please note." 10. On receipt of letter dated 16.10.1975 appellant requested for reduction of proportionate value of the premium from the total amount and further wrote on 02.03.1982 to the Trust wherein rate of 1.5 times of the amount of compensation was asked to be reduced. In the letter dated 02.03.1982 following request was made by the plaintiff: "Considering all the situation stated above, how can I give you more amount as cost of field which you acquired I would like to request you to give the same at the cost of acquisition only. Further terms are acceptable to me, at any time. If you do not consider my above request, I will have to move the Govt. for shelter." 11. After receip....
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....e allotment letter dated 16.10.1975 to the plaintiff of 44.61 acres of land was in furtherance of Resolution dated 03.05.1968. The plaintiff after receipt of the letter dated 16.10.1975 prayed for reduction of amount of premium demanded, several letters were written by the plaintiff regarding premium and allotment, last being letter dated 02.03.1982 as extracted above, in which the plaintiff herself was not ready to accept the terms as communicated by letter dated 16.10.1975. The Trust on 09.06.1982, thus, has alloted only 24 acres out of 44.61 acres of land. The facts of the case and correspondence as noticed above clearly indicate that at no point of time allotment of 44.61 acres was made in favour of the plaintiff. The decision to allot 44.61 acres was communicated on 16.10.1975 on terms and conditions mentioned therein. The plaintiff having expressed certain reservation with the conditions and asked for relaxation of conditions and the Trust after taking into consideration the entire facts and circumstances took a decision to allot only 24 acres of land out of 44.61 acres on 09.06.1982, there was never any firm allotment of 44.61 acres of land to the plaintiff giving any indefe....
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....nt of land. Sub-rule (2) of Rule 5 which provides for no exception except as otherwise provided in sub-rule (1) and Part VI of these Rules. Sub-rule (1) of Rule 5 referred to general or special sanction of the Government which is not applicable in the present case. Part VI dealt with grant of land for religious, educational, charitable and public purposes which also is not applicable in the facts of the present case. Hence, after the enforcement of the Rules of land vested and acquired by the Trust was to be disposed of only in the manner as indicated in sub-rule (2) of Rule 5. Admittedly 24 acres out of 44.61 acres of land was already allotted to the plaintiff on 09.06.1982 and Trust has taken a decision not to allot any further land in view of its subsequent decision dated 24.04.1983 to keep the remaining 20.61 acres of land for Department of Social Forest Trees for Central Nursery and for Nursery of the Nagpur Improvement Trust was taken by the Board. Thus, there was decision of Trust to set apart land of 20.61 acres for Department of Social Forest Trees for Central Nursery and for Nursery of the Trust. After enforcement of Rules, 1983 which were brought into force on 18.05.1983....
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....ccordance with the earlier Rules then prevailing. There is no question of nullifying the decision taken on 06.10.1975 and 16.10.1975 which was taken earlier to the subsequent Rules, 1983. In pursuance of earlier decision i.e. taken on 06.10.1975 and 16.10.1975 the entire allotment which took place prior to Rules, 1983 were completely saved but allotment which could not culminate before enforcement of Rules, 1983, would not have been made after the enforcement of Rules, 1983 except in accordance with Rules, 1983. We have already noticed that the plaintiff was allotted only 24 acres of land in pursuance of decision dated 06.10.1975 and 16.10.1975 and request of the plaintiff to allot entire 44.61 acres of land was not acceded to and only 24 acres of land was allotted possession of which was handed over to the plaintiff on 11.11.1982. There being no allotment of rest 20.61 acres of land prior to 18.05.1983 on the basis of earlier decision no allotment would have been made after the enforcement of the Rules in disregard to the statutory Rules. The statutory Rules enforced w.e.f 18.05.1983 substantially changed the manner of allotment and more rigorous conditions were put on the land of....
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.... vests in the State. He has a right to get compensation only for the same. The person interested cannot claim the right of restoration of land on any ground, whatsoever. " 21. The plaintiff's case at the highest is that her application for allotment of 20.61 acres of land was pending consideration when Rules, 1983 were enforced. The plaintiff's own case is that refusal to allot 20.61 acres of land took place only on 09.02.1989 when the Trust executed lease of 24 acres of land only. Thus, at best the application for reallotment of 20.61 acres of land was pending at the time when new Rules came in force. New Rules, thus, were fully attracted for any further disposal of land by the Trust as per Rule 5 and as per sub-Rule (2) of Rule 5 the land would have been disposed of except as otherwise provided in sub-Rule (1) only by holding public auction; inviting tenders by public advertisement; making offers to or accepting offers from any Government, Local Authority, Public Sector Undertaking or a body corporate which is owned or controlled by Government; inviting applications from persons or bodies of persons who are eligible for allotment of plots under Rule 4, by public advertis....
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....t reference to Rule 8C. The Madras High Court while not accepting some of the contentions raised on behalf of the applicants, struck down Rule 8C on the ground that it exceeded the rule making power given to the State Government under Section 15 which, it was said, was only to regulate and not to prohibit the grant of mining leases. As a consequence all the applications were directed to be disposed of without reference to Rule 8C. It was also observed that even if Rule 8C was valid it applied only to the grant of fresh leases and not to renewals. It was also held that it was not open to the Government to keep the applications pending for a long time and then to dispose them of on the basis of a rule which had come into force later. The State Government has come in appeal against the judgment of the Madras High Court while the respondent-applicants have tried to sustain the judgment of the Madras High Court on grounds which were decided against them by the Madras High Court. " 22. Rejecting the argument that Rule 8C is not attracted on the applications which were pending on date of amendment, it was held that applications were required to be disposed of on the basis of the Rules in....
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....l court was clearly in the teeth of the statutory Rules and the High Court committed error in taking the view that Rules, 1983 were not applicable in the present case. 24. It is also relevant to notice that lower Appellate Court has held that suit of the plaintiff was barred by time it having been filed more than three years after the refusal to allot the land. The High Court has held that the Appellate Court has committed error of law in considering the issue of limitation which was not the question raised before the trial court. In paragraph 17 of the judgment following has been held: "17. Though the allotment of 44.61 acres of land was on 16.10.1975, the lease-deed in respect of 24 acres of land was executed on 09.02.1989. Thus, there was refusal on 09.02.1989 to execute the lease-deed in respect of 20.61 acres of land. Hence, the cause of action in terms of Article 54 of the Limitation Act would start running from 09.02.1989 when the defendant-NIT refused to execute the lease-deed. The suit in question having filed on 15.12.1989 was not, therefore, barred by the law of limitation. In fact, this was not the question raised before the trial court and no issue was framed in res....