Madhukar Namdeo Raut & Ors. Vs. Pune Municipal Corporation & Ors.
EmailAppeal: Civil Appeal Nos. 7232-7234 of 2001
(Arising out of SLP (Civil) Nos. 18071-18073 of 2000)
(Arising out of SLP (Civil) Nos. 18071-18073 of 2000)
Petitioner: Madhukar Namdeo Raut & Ors.
Respondent: Pune Municipal Corporation & Ors.
Apeal: Civil Appeal Nos. 7232-7234 of 2001
(Arising out of SLP (Civil) Nos. 18071-18073 of 2000)
(Arising out of SLP (Civil) Nos. 18071-18073 of 2000)
Judges: U.C. BANERJEE & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Oct 16, 2001
Head Note:
PRACTICE AND PROCEDURE
Constitution
Article 136 – Relief – Writ in High Court – No interim orders granted – Observation that if petitioner succeeds, he may have appropriate reliefs – On SLP, interim orders granted – However, prayer by petitioner to decide objections – Award already made – Intention to stop municipality from affecting sale of plots. Held that no case for interim orders made out. Appeal dismissed. (Para 10)
Constitution
Article 136 – Relief – Writ in High Court – No interim orders granted – Observation that if petitioner succeeds, he may have appropriate reliefs – On SLP, interim orders granted – However, prayer by petitioner to decide objections – Award already made – Intention to stop municipality from affecting sale of plots. Held that no case for interim orders made out. Appeal dismissed. (Para 10)
JUDGEMENT:
ORDER
1. Leave granted.
2. The town planning scheme in the state of Maharashtra has been initiated in the year 1934 and on the petitioners’ own showing, the latter were allowed to retain 25% of land from survey nos. 120A, 120B and 124/2 as depicted in the arbitrator’s award.
3. The basic grievance of the petitioner in the writ petition filed before the High Court has been that the brick-kilns on survey no. 133 have not been shifted to survey nos. 120A, 120B and 124/2 as per the arbitrator’s award and the compensation has not been released as per the award of the arbitrator in respect of the above noted survey numbers. It is by reason of the aforesaid that the petitioner moved the Bombay High Court with a prayer that till the brick-kilns on survey no. 133 are not shifted, the petitioners ought to be put in vacant possession thereof and the corporation should not allow use of the land under survey nos. 120A, 120B and 124/2 for residential purposes. The petitioners have also prayed for the interim order for injunction against the corporation as well as the occupants of survey nos. 120A, 120B and survey no. 124/2.
4. Be it noticed that as regards the shifting of existing brick-kilns the High Court did not feel incline to grant any interim relief by reason of the long lapse of time. Though, however, it has recorded an observation that in the event the petitioners/appellants succeed in the writ petition on the final disposal, the appellants herein can have appropriate relief and remedy.
5. Aggrieved by the same, the petitioners/appellants moved this Court under Article 136 of the Constitution and this Court directed issuance of notice on 20th November, 2000 with an interim order to the effect that there shall be an order of injunction against the three respondents who have since purchased plots from the municipal corporation, not to alter the nature of the land or construct any construction, pending further orders. This Court was further pleased to direct a further order of injunction against the Pune Municipal Corporation not to make any further sale of the plots in survey nos. 120A, 120B and 124/2.
6. In terms of the order of this Court dated 17th September, 2001 a final disposal of the petitions was directed and in terms therewith the matter has been placed in the list for final disposal.
7. Mr. K.K. Venugopal, learned senior counsel appearing in support of the appeals strongly contended that his right of ownership stands affected by reason of the action of the municipality and unless the injunction granted by this Court stands confirmed, the municipality would otherwise act in a manner contra the interest of the land owners. Mr. Venugopal has further contended that the ownership rests with the petitioners/appellants herein and as such no interference can be permitted in terms of the provisions of the known principles of law.
8. Mr. Mukul Rohtagi, additional solicitor general, appearing for the Pune municipality however contended that the writ petition by itself filed before the court does not warrant any such order.
9. Mr. V.A. Bobde, learned senior counsel and Mr. S. Ganesh, learned senior counsel appearing for the purchasers/developers, respondents also sounded same note of support to Mr. solicitor’s submissions that the writ petition made out a completely different case and the appellants are thus guilty of total suppression of facts.
10. In order to appreciate the contentions we may advert to the prayers in the writ petition at this juncture. The prayers in the writ petition filed before the Bombay High Court are as follows:-
“(a) that this Hon’ble Court may be pleased to issue writ of certiorari or any other writ. Order of direction in the nature of certiorari calling for the petitioners case and after looking into the legality thereof to quash and/or set aside the action and/or inaction on the part of the respondents in acquiring the kilns bearing s.nos. 120 A & B without any compensation and/or in not handing over vacant possession of 11A and BG from S. no. 133 and the action in not granting a hearing to the petitioners on their objections to minor modification and the action in selling the plots of land to prospective buyers from s.nos. 120A & B.
(b) that this Hon’ble court be pleased to issue writ of mandamus and direct the respondents to forthwith decide the objections of the petitioners as contained in their letter dated 4.12.1998 (ex. “E” hereto) and to forthwith handover vacant possession of 11A and BG from s. no. 133 and further restrain the respondents from effecting any sales of plot from s. nos. 120A & B to prospective buyers.
(c) In the alternative to direct the respondents to pay to the petitioners the compensation in accordance with the present market value of the property to the petitioners for acquiring s.nos. 120A and 120B in the manner as stipulated under the Land Acquisition Act.
(d) that pending the hearing and final disposal of the above petition this Hon’ble court be pleased to issue writ of mandamus or other writ, order or direction in the nature of mandamus restraining respondents no. 1 and 2 from handing over possession of survey nos. 120A and B town planning scheme no.3 final plot no. 545 admeasuring 1,10,882 sq.mtrs. to anybody in pursuance of the minor modification carried out u/s. 37 of the MRTP Act, 1966.
(e) for ad-interim reliefs in terms of prayers (a), (b), and (c).
(f) for cost of this petition.
(g) for such further and other reliefs as the nature and circumstances of the case may require.”
11. Mr. Venugopal while placing reliance on prayer ‘b’ contended that the inclusion of prayer ‘b’ by itself would be sufficient for an order of injunction against the proposed sale by the municipality. Mr. Venugopal further drew the attention of this Court to prayer ‘d’ as well. We are, however, unable to record our concurrence therewith. Prayer ‘b’ interpreting in its true perspective shows that the writ of mandamus has been prayed for against the respondents to decide the objections of the petitioners as contained in the letter dated 4.12.1998 pertaining to the possession of 11 acres 6 gunthas from survey no. 133. The further prayer of Mr. Venugopal as appeared in ‘b’ prayer, is to restrain the respondents from effecting any sales of plot from survey nos. 120 A and 120B to prospective buyers. The prayers are specific and there is no scope for any other interpretation to be attached thereto. The intent and purport of the prayer is to stop or restrain the municipal corporation from effecting any further sales in regard to plots in survey nos. 120A and 120B to the prospective buyers. As such, the interim order granted does not find support from the prayers as made in the High Court. That itself disentitles the interim order to the petitioners/appellants.
12. Be it noted that the matter has been argued at length before this Court but we deem it fit and expedient not to refer the same lest it might have some effect and since the matter is pending adjudication before the High Court of Bombay and we deem it fit and expedient not to refer to the same since it might affect the merits of the matter at the final adjudication of the matter by the High Court. Significantly, the availability of the statutory scheme : the appointment of the arbitrator and the award of the arbitrator are all admitted phenomena in the contextual facts as such we refrain ourselves from making any comment thereon.
13. Mr. Venugopal, however, points out that there is no award under Land Acquisition Act. Mr. Rohtagi, Mr. Bobde and Mr. Ganesh dispute such a state of affairs in the factual matrix.
14. On the wake of the facts and without adjudicating on the issues raised, question of further interim order apart from what has been granted by the High Court in our view does not and cannot arise.
15. On the wake of this, these appeals therefore have no merit and are dismissed. No order as to costs. The High Court would do well to dispose of the matter with utmost expedition and preferably within a period of six months from the date of communication of this order. Be it clarified that the observations made herein, if any, shall not have any effect at the time of final adjudication of the matter since this Court has not gone into the merits of the contentions raised by the parties.
1. Leave granted.
2. The town planning scheme in the state of Maharashtra has been initiated in the year 1934 and on the petitioners’ own showing, the latter were allowed to retain 25% of land from survey nos. 120A, 120B and 124/2 as depicted in the arbitrator’s award.
3. The basic grievance of the petitioner in the writ petition filed before the High Court has been that the brick-kilns on survey no. 133 have not been shifted to survey nos. 120A, 120B and 124/2 as per the arbitrator’s award and the compensation has not been released as per the award of the arbitrator in respect of the above noted survey numbers. It is by reason of the aforesaid that the petitioner moved the Bombay High Court with a prayer that till the brick-kilns on survey no. 133 are not shifted, the petitioners ought to be put in vacant possession thereof and the corporation should not allow use of the land under survey nos. 120A, 120B and 124/2 for residential purposes. The petitioners have also prayed for the interim order for injunction against the corporation as well as the occupants of survey nos. 120A, 120B and survey no. 124/2.
4. Be it noticed that as regards the shifting of existing brick-kilns the High Court did not feel incline to grant any interim relief by reason of the long lapse of time. Though, however, it has recorded an observation that in the event the petitioners/appellants succeed in the writ petition on the final disposal, the appellants herein can have appropriate relief and remedy.
5. Aggrieved by the same, the petitioners/appellants moved this Court under Article 136 of the Constitution and this Court directed issuance of notice on 20th November, 2000 with an interim order to the effect that there shall be an order of injunction against the three respondents who have since purchased plots from the municipal corporation, not to alter the nature of the land or construct any construction, pending further orders. This Court was further pleased to direct a further order of injunction against the Pune Municipal Corporation not to make any further sale of the plots in survey nos. 120A, 120B and 124/2.
6. In terms of the order of this Court dated 17th September, 2001 a final disposal of the petitions was directed and in terms therewith the matter has been placed in the list for final disposal.
7. Mr. K.K. Venugopal, learned senior counsel appearing in support of the appeals strongly contended that his right of ownership stands affected by reason of the action of the municipality and unless the injunction granted by this Court stands confirmed, the municipality would otherwise act in a manner contra the interest of the land owners. Mr. Venugopal has further contended that the ownership rests with the petitioners/appellants herein and as such no interference can be permitted in terms of the provisions of the known principles of law.
8. Mr. Mukul Rohtagi, additional solicitor general, appearing for the Pune municipality however contended that the writ petition by itself filed before the court does not warrant any such order.
9. Mr. V.A. Bobde, learned senior counsel and Mr. S. Ganesh, learned senior counsel appearing for the purchasers/developers, respondents also sounded same note of support to Mr. solicitor’s submissions that the writ petition made out a completely different case and the appellants are thus guilty of total suppression of facts.
10. In order to appreciate the contentions we may advert to the prayers in the writ petition at this juncture. The prayers in the writ petition filed before the Bombay High Court are as follows:-
“(a) that this Hon’ble Court may be pleased to issue writ of certiorari or any other writ. Order of direction in the nature of certiorari calling for the petitioners case and after looking into the legality thereof to quash and/or set aside the action and/or inaction on the part of the respondents in acquiring the kilns bearing s.nos. 120 A & B without any compensation and/or in not handing over vacant possession of 11A and BG from S. no. 133 and the action in not granting a hearing to the petitioners on their objections to minor modification and the action in selling the plots of land to prospective buyers from s.nos. 120A & B.
(b) that this Hon’ble court be pleased to issue writ of mandamus and direct the respondents to forthwith decide the objections of the petitioners as contained in their letter dated 4.12.1998 (ex. “E” hereto) and to forthwith handover vacant possession of 11A and BG from s. no. 133 and further restrain the respondents from effecting any sales of plot from s. nos. 120A & B to prospective buyers.
(c) In the alternative to direct the respondents to pay to the petitioners the compensation in accordance with the present market value of the property to the petitioners for acquiring s.nos. 120A and 120B in the manner as stipulated under the Land Acquisition Act.
(d) that pending the hearing and final disposal of the above petition this Hon’ble court be pleased to issue writ of mandamus or other writ, order or direction in the nature of mandamus restraining respondents no. 1 and 2 from handing over possession of survey nos. 120A and B town planning scheme no.3 final plot no. 545 admeasuring 1,10,882 sq.mtrs. to anybody in pursuance of the minor modification carried out u/s. 37 of the MRTP Act, 1966.
(e) for ad-interim reliefs in terms of prayers (a), (b), and (c).
(f) for cost of this petition.
(g) for such further and other reliefs as the nature and circumstances of the case may require.”
11. Mr. Venugopal while placing reliance on prayer ‘b’ contended that the inclusion of prayer ‘b’ by itself would be sufficient for an order of injunction against the proposed sale by the municipality. Mr. Venugopal further drew the attention of this Court to prayer ‘d’ as well. We are, however, unable to record our concurrence therewith. Prayer ‘b’ interpreting in its true perspective shows that the writ of mandamus has been prayed for against the respondents to decide the objections of the petitioners as contained in the letter dated 4.12.1998 pertaining to the possession of 11 acres 6 gunthas from survey no. 133. The further prayer of Mr. Venugopal as appeared in ‘b’ prayer, is to restrain the respondents from effecting any sales of plot from survey nos. 120 A and 120B to prospective buyers. The prayers are specific and there is no scope for any other interpretation to be attached thereto. The intent and purport of the prayer is to stop or restrain the municipal corporation from effecting any further sales in regard to plots in survey nos. 120A and 120B to the prospective buyers. As such, the interim order granted does not find support from the prayers as made in the High Court. That itself disentitles the interim order to the petitioners/appellants.
12. Be it noted that the matter has been argued at length before this Court but we deem it fit and expedient not to refer the same lest it might have some effect and since the matter is pending adjudication before the High Court of Bombay and we deem it fit and expedient not to refer to the same since it might affect the merits of the matter at the final adjudication of the matter by the High Court. Significantly, the availability of the statutory scheme : the appointment of the arbitrator and the award of the arbitrator are all admitted phenomena in the contextual facts as such we refrain ourselves from making any comment thereon.
13. Mr. Venugopal, however, points out that there is no award under Land Acquisition Act. Mr. Rohtagi, Mr. Bobde and Mr. Ganesh dispute such a state of affairs in the factual matrix.
14. On the wake of the facts and without adjudicating on the issues raised, question of further interim order apart from what has been granted by the High Court in our view does not and cannot arise.
15. On the wake of this, these appeals therefore have no merit and are dismissed. No order as to costs. The High Court would do well to dispose of the matter with utmost expedition and preferably within a period of six months from the date of communication of this order. Be it clarified that the observations made herein, if any, shall not have any effect at the time of final adjudication of the matter since this Court has not gone into the merits of the contentions raised by the parties.
