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2019 Supreme(Bom) 502
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. Sonak, J.
Maruti H. Bathe & Ors. - Appellants
Vs.
Pune Municipal Corporation & Ors. - Respondents
Writ Petition No. 5270 of 2006, 3821 of 2006, 3822 of 2006, 5269 of 2006
Decided On : 09-04-2019
V.P. Sawant, Adv., R.S. Khadapkar, Adv.
Headnote:
Maharashtra Regional Town Planning Act - Section 127 - section 406 of Maharashtra Municipal Corporations Act, 1949 - Section 406,405,216,213 – Constitution of India,1950 - Articles 226 and 227 - Challenge - Claim of Compensation - Municipal Corporation of City of Pune (PMC) challenging aforesaid judgment and order on ground that no compensation ought to have been awarded to and others (respondents) or in any case on ground that compensation awarded is excessive - Has been instituted and others against the aforesaid impugned judgment and order on ground that compensation awarded in their favour is inadequate and the same warrants enhancement. - Are cross petitions against impugned judgment and order passed by the learned Judge, Small Causes Court Pune (Appeal Court). - Position is similar when it comes in both of which challenge is to impugned judgment and order made by the Appeal Court - In Writ Petition No PMC has questioned award of compensation in favour of and another (respondents) and in Writ Petition and another have questioned the very same impugned order on ground that compensation awarded is meagre and warrants enhancement - Bathes were admittedly owners of strip of land ad-measuring sq.mtrs., i.e., sq.ft., which was reserved for purpose of wide D.P. Road in terms of development plan approved - Year 1996, PMC, vide letter offered Bathes compensation at rate of per sq.meter for acquisition of aforesaid land (said property) for setting out 60 wide D.P. Road - This offer was not accepted and Bathes issued notice under section 127 of Maharashtra Regional Town Planning Act to PMC to acquire aforesaid property within six months from date of notice - It is case of Bathes that since no acquisition proceedings were initiated within six months period reservation automatically lapsed - Nevertheless some correspondence ensued between Bathes and PMC in relation to acquisition of said property - Whether a councillor has ceased to hold office under section 12 regarding removal and disqualification of a Councillor under section 13 - whether a person has ceased to be a member of Transport Committee under section 26 whether Commissioner may be directed to remove a shaft or pipe on application of owner of a building or hut under section 175 - whether injustice has resulted on account of any erroneous interpretation of law - whether or not substantial justice will be promoted - Whether open or enclosed lies within the regular line of a public street and is not occupied by a building - Held, Solatium and interest thereon must be paid in all cases even if land acquired under any other statute which has no specific provision solatium - Supreme Court referred to its earlier ruling in Om Prakash that if Government could acquire land for a or other local body by resort to either Land Acquisition Act or U.P. Town Improvement Act it would in the former case have to pay solatium and in later case no solatium, which would lead to discrimination - On this basis Supreme Court approved the view taken by High Court in which it had awarded solatium even though, there was no provision under U.P. Town Improvement Act for award of such solatium - Supreme Court noted that solatium is recompense or reparation to loss caused to owner of land on account of compulsory acquisition - Bathes had made reference to provisions in section 406 of MMC Act that by itself will not denude appeal Court of its powers and authority to exercise jurisdiction under section 405 of MMC Act, which power and jurisdiction, undoubtedly was vested in appeal Court - Supreme Court also made reference to the decision of Nagpur Improvement Trust in which, it was categorically held that the owner of land is not concerned with nature of public purpose, i.e., whether the land is acquired for a hospital or for a school or for housing - So long as the acquiring authority and public purposes wherefor lands are acquired are same in view of fact that provisions have been made for payment of compensation in terms of provisions of Land Acquisition Act although acquisition is made under State Act, but if higher amount of compensation is payable under latter such higher amount of compensation will be payable - Supreme Court held that it is equally immaterial whether it is one acquisition Act or another acquisition Act under which land is acquired - If the existence of two Acts could enable State to give one owner different treatment from another equally situated owner who is discriminated against can claim the protection of Article 14 of Constitution – Rule accordingly
M.S. Sonak, J.
Heard learned counsel for the parties.
2. Learned counsel for the parties agree that all these petitions can be disposed of with common judgment and order, since the issues involved therein are common.
3. In Writ Petition No. 3821 of 2006 and Writ Petition No.5270 of 2006, the challenge is to the judgment and order dated 4th January 2006 made by the Judge, Small Causes Court, Pune (Appeal Court). The operative portion of which reads as follows:
"(1) The Appeal is partly allowed with proportionate costs.
(2) The Respondents do pay balance compensation of Rs.1,17,07,094/- (Rupees One Crore Seventeen Lac Seven Thousand Ninety four only) towards the compensation of land admeasuring 1854 sq.,mtrs. i.e. 19,950 sq.ft as detailed described in para 1B of the Plaint to the Appellants along with interest thereon at the rate of 6% per annum from the date of possession i.e. 12.8.2002 till realization of decretal amount.
(3) The Claim of compensation as regards to land admeasuring 646 sq. mtrs. As described in plaint para 1C is rejected.
(4) Decree be drawn up accordingly."
4. Writ Petition No.3821 of 2006 has been instituted by the Municipal Corporation of City of Pune (PMC) challenging the aforesaid judgment and order dated 4th January 2006 on the ground that no compensation ought to have been awarded to Shri. Maruti H. Bathe and others (respondents) or in any case, on the ground that the compensation awarded is excessive.
5. Writ Petition No. 5270 of 2006 has been instituted by . Maruti H. Bathe and others against the aforesaid impugned judgment and order dated 4th January 2006 on the ground that the compensation awarded in their favour is inadequate and the same warrants enhancement.
6. Thus, Writ Petition No. 3821 of 2006 and Writ Petition No. 5270 of 2006 are cross petitions against the impugned judgment and order dated 4th January 2006 passed by the learned Judge, Small Causes Court, Pune (Appeal Court).
7. The position is similar when it comes to Writ Petition Nos.3822 of 2006 and 5269 of 2006, in both of which, the challenge is to the impugned judgment and order dated 3rd January 2006 made by the Appeal Court. In Writ Petition No. 3822 of 2006, the PMC has questioned the award of compensation in favour of Amit A. Natekar and another (respondents) and in Writ Petition No. 5269 of 2006, Amit Natekar and another have questioned the very same impugned order on the ground that the compensation awarded is meagre and warrants enhancement.
8. Since the issues involved are substantially common the learned counsel for the parties agree that all these petitions can be disposed of by common judgment and order.
9. For sake of convenience, reference is made to the fact situation relevant to Writ Petition Nos. 3821 of 2006 and 5270 of 2006. The fact situation in the remaining two writ petitions is also quite similar, except insofar as details of acquired land and the compensation payable therefore, is concerned.
10. The Bathes were admittedly the owners of strip of land ad-measuring 1854 sq.mtrs., i.e., 19,950 sq.ft., which was reserved for purpose of 60' wide D.P. Road in terms of development plan approved on 5th January 1987. In the year 1996, PMC, vide letter dated 12th October 1997 offered Bathes compensation at the rate of Rs.3,565/- per sq.meter for acquisition of the aforesaid land (said property) for setting out 60' wide D.P. Road. This offer was not accepted and Bathes issued notice dated 15th October 1999 under section 127 of the Maharashtra Regional Town Planning Act to PMC to acquire the aforesaid property within six months from the date of notice. It is the case of the Bathes that since no acquisition proceedings were initiated within six months period, the reservation automatically lapsed. Nevertheless, some correspondence ensued between Bathes and PMC in relation to the acquisition of the said property. This was followed by negotiation between the parties, which did not fructify into any agreement. However, it is the cas
