Purnima Talkies v. Chief Officer, Dahanu Nagar Parishad

16. An order dated 10 January 2024 was passed by the Trial Court on the above interim application (Exhibit 5) filed in the said suit of the petitioner rejecting the injunction application.

17. On refusal of the Trial Court to grant a temporary injunction, on 16 January 2024 the petitioner’s compound wall on the subject land was demolished by the respondent no. 2 under police protection. Further, respondent no. 2 put colored markings for the proposed road widening and installed cement poles of uneven markings on the subject land/property. The petitioner, as a consequence of such action of the respondents, amended the plaint in Civil Suit No. 29 of 2023, being aggrieved by such demolition. By an amendment (dated 16 July 2024), the petitioner additionally prayed for damages of Rs. 4,85,000 for illegal demolition of the compound wall and other structures on the Subject Land with directions to the respondents to reconstruct the demolished compound wall and other structures on the Subject Land of the petitioner, within a time bound period.

18. The petitioner then filed an appeal dated 9 February 2024 under Order XLIII of the CPC, against the order dated 10 January 2024 of the Trial Court (Supra) rejecting the interim application for injunctory reliefs filed by the petitioner.

19. By an order dated 31 May 2024, the said appeal of the petitioner was partly allowed by the Trial Court. The court held that, the contention of the petitioner to seek permission to re-erect the compound wall was required to be decided by the Trial Court. Accordingly, the order dated 10 January 2024 passed by the Trial Court rejecting the petitioner’s interim application (Exhibit 5), was set aside. The interim application filed in the suit was restored to the file of the Trial Court for de novo adjudication. Directions were also issued to respondent No. 2 keeping it open for the said respondent to decide the representation of the petitioner dated 20 September 2022 in regard to claiming compensation during pendency of the petitioner’s interim application, which was restored, as stated (Supra).

20. Pursuant to the above order a hearing notice was issued by respondent No. 2 to the petitioner on which the petitioner was heard in the offices of respondent No. 1 on 19 July 2024. Thereafter, as per minutes of hearing dated 19 July 2024 the petitioner submitted his response, raising objections in writing through his advocate, inter alia, alleging that respondent No. 1 had acted in a biased manner. Thus, the petitioner strongly opposed the hearing to be conducted by respondent No. 1.

21. On the aforesaid backdrop, dehors the objection of the petitioner, as noted (Supra) the respondent No. 1 proceeded to pass the impugned order dated 23 July 2024, against which the petitioner being aggrieved has preferred this writ petition filed on 11 August 2024.

(C) Rival Contentions:-

22. At the very outset, Ms. Yogita Deshmukh, learned counsel for the petitioner would submit that the respondents have acted contrary to and in breach of the provisions of Section 126 of the MRTP Act. It is further submitted that the mandate under Section 126(1)(a) and 126(1)(b) of the said Act has been totally overlooked, ignored by the respondents, in as much as, there is no agreement and/or a concluded contract between the petitioner and the respondent authorities, as far as the grant and acceptance of TDR/FSI is concerned. It is her submission that in view of such undisputed factual position, one would have to resort to Section 126(1)(c) of the MRTP Act, under which the petitioner is entitled to the grant of compensation to be determined and paid under the provisions of the 2013 Act. She would thus submit that the actions of the respondents are in complete violation of such statutory scheme and provisions contemplated under the MRTP Act, which cannot be countenanced.

23. Ms. Deshmukh further contended that the respondents could not have acquired the subject land of the petitioner without initiating proceedings as stipulated under the 2013 Act. Both logically and legally, it was incumbent to grant monetary compensation to the petitioner and thereafter the respondents ought to have proceeded for demolition in the manner recognised by law. However, none of this was done.

24. Ms. Deshmukh would further submit that for the purposes of granting TDR/FSI to the petitioner in lieu of compensation, there ought to be a concluded contract between the petitioner and the respondents, which was not so in the present case. Thus, nothing precluded the State and/or the respondents Nos. 1 to 3 from paying compensation to the petitioner under the provisions of the 2013 Act, as prescribed under Section 126(1)(c) of the MRTP Act. In other words, the respondents could not have foisted upon the acceptance of TDR/FSI on the petitioner in the absence of such agreement/concluded contract between them, as expressly provided under Section 126 of the MRTP Act. It is further submitted that in any event had the respondents intended to grant of TDR/FSI to the petitioner, in lieu of compensation, nothing prevented them from executing an agreement to that effect as mandated in law, failing which the petitioner had to be paid monetary compensation. It is submitted that the respondent authorities failed to consider that the subject land of the petitioner is situated at Dahanu which has been declared as an ecologically fragile area under notification dated 20 June 1991 issued by the MoEF, read with notification dated 4 April 2012 for preparation of draft development plan for Dahanu, which provided the permissible development activities to be undertaken under such plan. In view thereof, had there been any offer by the respondents to the petitioner to accept TDR/FSI that too would have served no purpose, as the subject land then formed a part of the green zone.

25. Ms. Deshmukh would then submit that respondents Nos. 1 and 2 ought to have considered that the ancestors of the petitioner had received the subject land under a Sanad dated 1 October 1939. The building structure of the petitioner talkies was almost 82 years old. The land and structure inside the compound wall was no more protected pursuant to the demolition of the same by the respondents. Such illegal demolition had caused huge financial loss and mental agony to the petitioner. To make things worse for the petitioner there was no compensation paid by the respondents to the petitioner, thus putting the petitioner to undue hardship and onerous burden. She submits that such actions of the respondents demonstrate arbitrariness and highhandedness on part of the respondents.

26. Ms. Deshmukh then placed reliance on the decision of the Full Bench of this Court (Nagpur Bench), in the case of Shree Vinayak Builders and Developers, Nagpur v. State of Maharashtra and Others[1] to buttress her submission that only when an agreement is entered between the parties with regard to acquisition of land, by granting TDR/FSI rights to the petitioner, would constitute a step towards acquisition of land. In the absence of such

1. 2022(4) Mh.L.J. 739 agreement/concluded contract between the parties as in the given case, such acquisition was contrary to the provisions of Section 126 of the MRTP Act and hence illegal.

27. Ms. Deshmukh would also place reliance on the decision of a Coordinate Bench of this Court in Our Lady of Immaculate Conception Church A Public Charitable Trust v. Municipal Corporation OF Greater Mumbai & Ors[2] (of which one of us Justice G.S. Kulkarni was a member). This is to contend that as held by the Full Bench decision of this Court (Supra), the respondents could not have acquired the subject land of the petitioner contrary to law, for the reasons noted above. In view thereof, the acquisition by the respondents in the present case was completely contrary to the mandate and procedure prescribed by law. Submissions of the Respondents:-

28. Mr. Kedar Dighe, learned Additional Government Pleader and Ms. Bhende, learned AGP for the respondents would not dispute the relevant factual matrix as narrated above, essential for adjudicating the dispute in the present petition. In fact, they would fairly submit that they cannot controvert the settled legal position in the given facts and circumstances. This is with regard to the predominant issue of land acquisition and payment of

2. 2024 SCC OnLine Bom 1905 compensation in the context of the provisions of the MRTP Act and the 2013 Act, with the legal consequences thereof on the demolition of the petitioner’s compound wall, without payment of compensation. Both the learned counsel for the respondents are not in a position to distinguish and/or controvert the settled law as laid down by the decisions of the Courts in this regard.

(D) Analysis and Conclusion:

29. At the very outset to enable us to adjudicate on the issues involved in the present petition, it is imperative to refer to the provisions of Section 125 of the MRTP Act which read thus:- “Section 125: Any land required, reserved or designated in a Regional plan, Development plan or town planning scheme for a public purpose or purposes including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose 1[within the meaning of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013)]: 2[Provided that, the procedure specified in sections 4 to 15 (both inclusive) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013) shall not be applicable in respect of such lands.]” Also, section 126 of the MRTP Act inter alia provides for acquisition of land required for public purpose. The said provision stipulates that after publication of the draft plan, or a development plan or any other plan or town planning scheme, any land which is required or reserved for any public purpose specified in any plan or scheme under the MRTP Act, the competent authority may acquire the land:- (a) by an agreement to pay the amount agreed to; or (b) in lieu of such amount by granting the landowner FSI or TDR on the surrender land or (c) by making an application to the State Government for acquiring the land under the 2013 Act.

30. In the above context, it is to be noted that the fulcrum of dispute in the present case touches upon the legal authority and power of the respondents under the MRTP Act to acquire the subject land for public purpose. On perusal of the scheme, framework, and applicable provisions of the MRTP Act, it is clear that this can be done only by invoking Section 126(1)

(c) of the MRTP Act. However, for the said provision to apply, there ought to be an express agreement between the parties, in regard to acceptance of TDR/FSI. In absence of such agreement, the TDR/FSI, cannot be foisted on the petitioner, particularly when, admittedly, there is no such agreement, as in this case.

31. We may now refer to a decision of the Full Bench of this Court in the case of Shree Vinayak Builders & Developers (Supra). The Court posed three important questions referred for opinion of the Larger Bench:- “(i) Whether the modes of acquisition provided under Section 126(1)(a) and (b) of the MRTP Act are at the choice of either of the parties or only of the acquiring authority?

(ii) If the planning authority has approved the request of the land owner for grant of monetary compensation or grant of TDR/FSI in lieu of compensation, can the land owner withdraw his request and thereby refuse or decline to surrender the land?“(i) Whether the modes of acquisition provided under Section 126(1)(a) and (b) of the MRTP Act are at the choice of either of the parties or only of the acquiring authority?

(ii) If the planning authority has approved the request of the land owner for grant of monetary compensation or grant of TDR/FSI

(iii) Can the grant of approval or passing of resolution by the authorities concerned for grant of TDR in lieu of monetary compensation be treated as a step for acquisition of land and thereby commencing the proceedings for acquisition of the land?” In the above context, it would be apposite to refer to the relevant paragraphs in the said judgment which have a significant bearing in deciding the issues involved in the present petition:

32. We would now gainfully advert to the judgment of a Coordinate Bench of this Court in the case of Our Lady of Immaculate Conception Church (Supra), wherein the Court in similar circumstances made the following observations.

The above judgment has duly considered and applied the decision of the Full Bench (Supra), reiterating that if there is no agreement between the owner of the land and the planning authority, the logical corollary would be that the land acquisition ought to be undertaken in accordance with Section 126(1)(c) of the MRTP Act. Resultantly, in absence of an agreement between the petitioner and the planning/development authority, the subject land could have been acquired only under the 2013 Act. Juxtaposing the said decision to the given facts, in our view, the above judgment would squarely apply to the present case.

33. While considering the submissions of the petitioner to the effect that the entire process relating to acquisition of the subject land was arbitrary, mechanical and highhanded we would refer to the seven guiding principles laid down by the Supreme Court in the case of Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.3, which ought to be followed by the authorities, prior to land acquisition, for public purpose. These are summarized as under:

3. 2024 SCC OnLine SC 968.

34. It is pertinent to note that such edict of law more particularly the right of restitution or grant of fair compensation to the petitioner is ex facie breached and or infringed, violated by the respondents. In this context, the Supreme Court has duly recognised that right to hold and enjoy property is an integral part of the constitutional right under Article 300A. Any deprivation or extinguishment of such right is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation or such other measures. Compensation has always been considered to be an integral part of the acquisition process. In the present case, the only mode and manner of restitution of the petitioner’s position, whose compound wall was demolished, in the absence of the respondents following due process of law as prescribed under Section 126 of the MRTP Act, would be by payment of compensation, to be determined and paid under the provisions of the 2013 Act. In fact, Courts have taken a consistent view that such compensation is not merely necessary but also that a fair and reasonable compensation is the sine qua non for any acquisition process.[4]

35. At this juncture, we consider it appropriate to also refer to the settled legal proposition as enunciated by the Court of Chancery in Taylor v.

4. In State of U.P. v. Manohar, (2005) 2 SCC 126, this Court held that payment of compensation is an integral part of the process of land acquisition. In M. Naga Venkata Lakshmi v. Visakhapatnam Municipal Corpn., (2007) 8 SCC 748, this Court held that wherever promised, compensation is ought to be paid. In NHAI v. P. Nagaraju, (2022) 15 SCC 1, this Court held that compensation must be adequate and must be arrived at keeping in mind the market value of the acquired land. In Vidya Devi v. State of H.P., (2020) 2 SCC 569, this Court held that even though compensation is not expressly provided for under Article 300A of the Constitution, it can be inferred therein. In the American jurisprudence, payment of compensation has been made part of due process (See Sweet v. Rechel [159 US 380 (1895): 40 L.Ed. 188], Delaware L. & W.R. Co. v. Morristown [276 US 182 (1928): 72 L.Ed. 523] and United States v. Caltex (Philippines) [344 US 149 (1952): 97 L.Ed. 157). Taylor[5] that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefore in the Act. The respondents clearly overlooked said settled legal principles in the case.

36. Thus, in the given facts and circumstances, we are constrained to observe that instead of taking recourse to lawful acquisition of land, the respondents in the present case have gone ahead to demolish the compound wall on the subject land of the petitioner that too without payment of any compensation to the petitioner. Thus, the respondents have acted contrary to and in the teeth of the provisions of law as discussed above, which has also infringed the constitutional right of the petitioner guaranteed under Article 300A.

37. In the light of the above discussion, we are certain that the petition needs to succeed. It is accordingly made absolute in terms of prayer clauses (b) & (c).

38. No order as to costs. (ADVAIT M. SETHNA, J.) (G. S. KULKARNI, J.)

5. [L.R.] 1 Ch. 426, 431 MAHENDRA WARGAONKAR