Manohar Lal Raj vs Municipal Corporation

@JUDGMENT-JUDGMENT

P. Sam Koshy, J

The present writ petition has been filed seeking for relief of a direction to the respondent firstly to pay compensation against the land belonging to the petitioner, which was acquired with interest @ 24% per annum from the time of the delivery of possession. Secondly, for commanding the respondent to allot developed plot at the said area equal to 1/5 th of the total land acquired of the petitioner.

The brief facts relevant for the adjudication of the present dispute is that the petitioner had approximately 2.51 acres of land situated on the Vyapar Vihar area under Municipal Corporation, Bilaspur, District Bilaspur. That on 21.07.1987 a portion of the land belonging to the petitioner measuring to 0.98 acres was acquired by the Bilaspur Development Authority, which subsequently got merged into the Municipal Corporation, Bilaspur. At the time of acquisition, it was agreed upon between the parties, which was executed on 21.07.1987 itself, wherein it was agreed between the parties that the petitioner shall be subsequently allotted developed plot to the extent of 1/5 th of the property of the petitioner, which was acquired. In addition, the petitioner also would be entitled for compensation of the said land acquired @ Rs.5/- per sq.ft. According to the petitioner, it is a case, where the respondent has failed to honour the agreement in all respects i.e. the petitioner has neither given developed plot of the size of the 1/5th of the total land acquired of the petitioner and at the same time, the respondent has also not paid the entire compensation for the total land acquired. Hence, the present writ petition has been filed claiming for the aforesaid relief.

According to the petitioner, though the agreement was entered into on 21.07.1987 and an advance amount of Rs. 10377.60 was paid by the respondent to the petitioner, however, thereafter no further payments have been made till date inspite of the fact that the writ petition is pending before this Court since 2002. The contention for the petitioner now is that since the acquisition took place in the year 1987 and the petitioner has been deprived of the entire compensation, which they should have got in the year 1987, till date having not being paid, neither the petitioner having being provided with developed plot equivalent to 1/5 th of the total land acquired. The petitioner has been put to substantial loss. It was contended that the petitioner has not been able to reap the fruits of the acquisition proceedings inspite of having lost about 0.98 acres of land and at the same time the respondent also have not fulfilled the part, which they had to perform, thus an appropriate relief be granted directing the respondent to pay compensation at the market level of the said property as it stands today. According to the petitioner, the area at which the land was acquired is as on date one of the costly area, so far as land and building price is concerned, therefore the respondent be directed to now compensate the petitioner at the prevailing land price/market value.

The counsel for th petitioner relied upon the judgment in the case of "Kashmir Singh v. State of Haryana & Ors." 2014(2) SCC 165, "Udho Dass v. State of Haryana & Ors." 2010(12) SCC 51, "Madhusudan Kabra & Ors. v. State of Maharashtra & Ors." 2018(1) SCC 140, "Mitesh Kumar Ramanbhai Patel & Ors. v. State of Gujarat & Ors." 2018(12) SCC 79 in support of his contention.

Per contra, opposing the writ petition the counsel appearing for Corporation submitted that it is a case where there has been no mala fides on the part of the respondent in not honouring the agreement, which was executed between the parties. According to the learned counsel for the Corporation, the petitioner at the first go itself was granted 40% of the land value and the balance of 60% of the amount could not be paid to the petitioner as it was found that the land which was acquired by the Corporation was in fact kept on mortgage by the petitioner with the Union Bank of India against a loan and there have been correspondences made by the Union Bank of India to the respondent-Corporation for payment of the balance amount to the petitioner against the mortgage that was made by the petitioner with the Bank in respect of the property in dispute. The counsel for the respondent-Corporation submits that now that the mortgage part stands discharged, the respondent-Corporation is ready to pay the balance of 60% of the amount due to the petitioner with interest as was agreed upon between the parties vide agreement dated 21.07.1978. So far as the allotment of developed plot is concerned, the counsel for the respondent-Corporation submits that the corporation has already alloted two plots at Vyapar Vihar Zone-1 i.e. the plot No. B/86 (measuring 50x80=4000 sq.ft.) and plot No. B/87 (measuring 43.75x80=3500 sq.ft.) totaling to 7500 sq.fts. and for which the petitioner has been called upon by the respondent for necessary compliance.

Having heard the contentions put forth on either side and on perusal of record, admittedly, the land measuring 0.98 acres belonging to the petitioner acquired by the respondent in the year 1987 and an agreement entered into between the parties on 21.07.1987. For ready reference clause-2 of the said agreement is reproduced herein under:

ष्चूंकि पार्टी नं.-1, बिलासपुर विकास प्राधिकरण ने नगर के समुचित विकास के लिए जूना बिलासपुर इलाके की भूमि का चुनाव मास्टर प्लान के अनुरूप किया है और उसके द्वारा विकास कार्य किया जा रहा है जिसके लिए तत्काल उन्हें भूमि की आवश्यकता है ताकि अपनी स्कीम की क्रियान्वयन कर सके और चूंकि यह विकास कार्य स्कीम के अनुसार सिर्फ प्राधिकरण द्वारा किया जा सकता है ऐसी दशा मे तात्कालिक आवश्यकता को देखते हुए पार्टी नं.-2 भविष्य में कभी भी आधिपत्य का दावा नहीं कर सकेगी और न ही स्थगन या निषेधाज्ञा के लिए वह कानूनी कार्यवाही कर सकेगा।

From the records produced by the parties, it also reveals that on 14.08.1987, there is a receipt of an amount of Rs.10,377.60 as 40% of amount as advance to the petitioner. The receipt of which has not been disputed by the petitioner. From the contention of the respondent it stands established that the balance of 60% of the amount has not been paid to the petitioner till date.

From the submissions it is also reflected that the respondent in fact intend to honour the agreement by paying the balance of 60% of the amount with interest as was agreed upon between the parties and from the submissions it is also established that the petitioner has been allotted two plots as referred to in the preceding paragraphs measuring 7500 sq.ft. as against the developed plots which was agreed upon to be given to the petitioner.

From the correspondences that have been made between the parties, the respondent-Corporation vide an application for taking document on record had produced a document of the petitioner himself vacant by the petitioner as early as on 08.04.2003, which is not disputed by the petitioner. In the said letter itself, the petitioner had specifically mentioned that of the 0.98 acre of land belonging to the petitioner, which had been acquired by the Municipal Corporation is entitled for Rs.5/- per sq.ft. of the total acquired land and after developing the said property, the Corporation shall provide developed property measuring 1/5th of the total acquired to the petitioner. At the same time, it is also necessary to refer to the documents enclosed along with the reply of the respondent, which clearly indicates two things, firstly the property of the petitioner was initially or at the time of acquisition found to be mortgaged by the petitioner with the Union Bank of India, which however has in due course of time been got released by the petitioner and secondly, it has been reveled that the Corporation also has been seeking instructions/guidelines from the State Government, so far as the claim of the petitioner is concerned, and the Corporation in fact has recommended in favour of the petitioner, which proves that the petitioner has not been provided with what was agreed upon between the parties from the agreement that was entered as early as on 21.07.1987.

From the correspondences that the Commissioner had made, it also reveals that the Corporation is more than willing to honour the agreement which was entered into between the parties in the light of the correspondences that have been made between the parties.

What is now left to be considered by this Court is, as to what is it that the petitioner could now be entitled for in terms of the agreement that was entered into between the parties. Admittedly there has been an agreement entered into between the parties as early as on 21.07.1987 the two major clauses of the agreement have already been reproduced in the preceding paragraph of this judgment. Now what has to be seen is that if the respondent has not honored any of the conditions to the agreement between any of the parties, the remedy that was available to the petitioner at that point of time was filing of a civil suit seeking for the specific performance of contract. For reasons best known the petitioner did not avail the said remedy available to him at the appropriate time in accordance with law. After a considerable lapse of time rather years together the present writ petition was for the first time filed by the petitioner on 16.04.2002 i.e. much after the prescribed period of limitation for filing of a civil suit was over. If we look into the relief sought for by the petitioner, it would reveal that the relief sought for by the petitioner herein is more for the direction to the respondent to honer the agreement entered into between the parties and to provide the relief as was agreed upon, which would had in fact been the relief of the petitioner had he filed a suit for specific performance of contract. Now that the writ petition is already pending consideration before this Court for well over 18 years, it would not be proper for this Court to dismiss the writ petition for not having availed the remedy of a civil suit for specific performance of contract.

Since the agreement and the terms of agreement are all admitted by the counsel for the respondent, there isn't any disputed question of fact left to be adjudicated in the present writ petition. From the documents enclosed by the respondent-Municipal Corporation along with their reply that was filed as early as on 03.05.2017, it is also revealed that the respondent-Corporation is still interested in honoring the terms and conditions of the agreement. Another aspect which needs to be taken note of is the fact that even to the reply that has been submitted by the respondent, the petitioner has not disputed to any of the contentions based therein and have also not disputed the documents, which have been enclosed along with the writ petition. One such document is the possession receipt (kabja raseed) written by the petitioner duly signed by him of having given the entire possession of 0.98 acres of land to the Municipal Corporation. The date of execution of the said possession receipt is also of the date when the agreement was entered into between the parties i.e. of 21.07.1987. Another document enclosed with the reply is the receipt of the part compensation by the petitioner on 14.08.1987, this document also has the signature of the petitioner and in the said documents it is emphatically mentioned that the petitioner receives an amount of Rs.10,377.60 towards 40% of the total compensation which the petitioner was to receive in terms of the agreement entered into between the parties. Details of the cheque is also mentioned in the said receipt. Annexure R/2 is a document which would show a correspondent made by the respondent to the petitioner in respect of the property of the petitioner, which was taken over by the Corporation found to be kept as a bank guarantee with the Union Bank of India, Bilaspur branch. The respondent had directed the petitioner to get the property free from encumbrances by getting the bank guarantee against the said property discharged. This correspondence by the respondent to the petitioner was made on a correspondence received from the Union Bank of India, Bilaspur branch intimating the respondents that the said property has been kept as a bank guarantee and the bank wanted the compensation to be paid to the petitioner be directly deposited in the Bank, so that the bank guarantee can be relieved.

Now what has to be understood from the aforesaid factual backdrop is that though there was an agreement between the parties executed on 21.07.1987, the respondent could not get the freehold possession of the property as the property stood mortgaged with the Union Bank of India. There is a correspondence in this regard made by the Union Bank of India to the Municipal Corporation and in turn the Municipal Corporation asking the petitioner to get the liability discharged from the bank.

The petitioner has not been able to produce any document by which it could be established as to when he got the liability discharged from the bank. Since the property stood mortgaged with the bank, the respondent also could not be blamed for not paying the balance of compensation/consideration for the land in terms of the agreement. However, now it seems that the property has since been relieved and discharged from any further liability from the bank.

It is pertinent to mention at this juncture that the petitioner himself along with the writ petition has filed Annexure P/2 which is dated 10.05.1990. It would be also relevant at this juncture to reproduce the contents of the said letter issued by the petitioner duly signed by him,

उक्त भूमि में से 0.98 एकड़ भूमि बिलासपुर विकास प्राधिकरण द्वारा अधिग्रहित कर ली गई है, जिसमें मुझे 1/5 हिस्सा जमीन 75ग100 फुट ;7500 वर्गफुटद्ध प्राप्त हो चुका है, शेष राशि 25077 रू. प्राप्त करना है, जिसमें से 10077 प्रथम किश्त राशि ही मुझे भुगतान दी गई है शेष 15000/- रूपये पाना शेष है।

यह कि मेरा भुगतान 15000/- रूपये इसलिए रोक दिया गया है कि मैंने एक शिक्षित बेरोजगार का 27000/- रू. गायरेंटर रहा हूं, जिसे यूनियन बैंक बिलासपुर से भुगतान किया गया जबकि शिक्षित बेरोजगारों के लिए नियमानुसार गायरेंटर की आवश्यकता नहीं है, अस्तु मुझे रोकी गई मुआवजा की भुगतान करने का कष्ट करें।

The plain reading of the contents of the aforesaid letter establishes the fact that the petitioner was in fact given the 1/5th developed property in the year 1990 itself which the petitioner seems to have not taken possession of and it appears that he was trying to negotiate with the respondent for a developed plot at a different location.

Along with the reply there is also a document Annexure R/6 dated 14.09.2010 whereby the Commissioner, Municipal Corporation, Bilaspur had sought certain guidelines from the State Government clearly recommending him in favour of the petitioner, so far as honoring of the terms and conditions of the agreement dated 21.07.1987. A repeat letter was issued by the Commissioner to the State Government on 28.01.2011. During the course of the proceedings, it further reveals that the petitioner subsequent to filing of the writ petition in the year 2002 made a representation to the Commissioner, Municipal Corporation, Bilaspur on 08.04.2003. It would be relevant to reproduce the contents of the said letter:

उपरोक्त विषय में प्रार्थना है कि मेरे भूमि स्वामी के हक की भूमि ग्राम जूना बिलासपुर ख.क्र. 829 कुल रकबा 2.51 में से 0.98 एकड़ बिलासपुर विकास प्राधिकरण द्वारा दिनांक 21.07.1987 को व्यापार विहार योजना में आपसी राजीनामा द्वारा अधिग्रहित की गई थी। अनुबंध के अनुसार 0.12 एकड़ का 5 रूपये प्रति वर्गफुट की दर से मुआवजा व 0.86 एकड़ का 20 प्रतिशत विकसित भूखण्ड मेरे ही भूमि में आबंटन हेतु अनुबंध किया गया था। कार्यालय में मेरे द्वारा स्वयं कई बार संपर्क किया गया एवं सन् 2001 में बताया गया कि जोन-2 में भूखंड उपलब्ध नहीं है। जोन-1 में भूखंड ले लेवें। मेरे द्वारा महोदय से अनुरोध है कि आज जो दर व्यापार विहार जोन-2 में है उतने मूल्य का विकसित भूखण्ड व्यापार विहार जोन-1 में आबंटित कर दिया जावे, व जो मुआवजे की रकग शेष बची है उस रकम के बदले भी मुझे व्यापार विहार जोन-1 में भूखंड आबंटित कर दी जाये। बैंक का अनापत्ति प्रमाण पत्र मेरे द्वारा 10-15 दिन में प्रस्तुत कर दिया जावेगा। महानुभाव से प्रार्थना है कि मेरे आवेदन पर सहानुभूतिपूर्वक विचार करते हुए मुझे जल्द से जल्द विकसित भूखण्ड आबंटित करने का कष्ट करें। प्राधिकरण की जो भी नियम व शर्तें हांेगी मुझे मंजूर है।

During the course of hearing the learned counsel for the respondent-Corporation issued another correspondence to the petitioner vide their letter dated 09.01.2019. The convenience of all, it would be more appropriate if the contents of the said letter issued by the respondent to the petitioner is reproduced herein under:

आवेदन श्री मनोहर लाल राज पिता श्री दौलत सिंह राज की भूमि जूना बिलासपुर (व्यापार विहार) के योजना के अंतर्गत भूमि का वर्ष 1987 में इकरारनामा के तहत अधिग्रहण किया गया। जिसमें आवेदक को 20: भूमि का मुआवजा दिए जाने का इकरारनामा किया गया था। उक्त इकरारनामा के अनुसार आपके द्वारा 7500 वर्गफुट भूमि एवं शेष राशि 25944/- रूपये मुआवजा दिए जाने हेतु आपका पत्र प्राप्त हुआ था। आवेदक को 7500 वर्गफुट भूमि व्यापार विहार जोन-1 में भूखंड क्र. ठध्86 ;50ग80त्र4000द्ध वर्गफुट एवं भूखंड क्र. ठध्87 ;43ण्75ग80त्र3500द्ध वर्गफुट कुल 7500 वर्गफुट भूखंड आबंटित हेतु सुरक्षित रखा गया है। शेष राशि 15567/- रूपये 12ः ब्याज दिनांक 21.07.1987 से 08.01.2019 तक कुल 31 वर्ष का ब्याज राशि 15567ग12ः प्रतिवर्ष 1868ग31 वर्ष का ब्याज राशि 57909/- रूपये एवं मूल 15567/- रूपये कुल राशि 73476/- रूपये का भुगतान कार्यालय में उपस्थित होकर चेक प्राप्त करें।

Under the circumstances, if the Municipal Corporation now agrees for making of the balance of payment to the petitioner and also allot the two developed plots to the petitioner which they had offered in the year 1990 itself, the same cannot be said to be bad in law or arbitrary in any manner. From the correspondence made by the respondent to the petitioner on 09.01.2019 contents of which was reproduced in the preceding paragraph would also reveal that the respondent are still ready to offer two plots i.e. B/86 and B/87 in Zone-1 at Vyapar Vihar, measuring 4000 sq.ft. and 3500 sq.ft. respectively, total measuring 7500 sq.ft. This would mean principally the respondent had all along willing and agreed to abide by the clause of the agreement of giving the petitioner 1/5th of developed plot of the total land acquired by the petitioner and the balance of the payments.

That just before the time of filing of the writ petition there was another correspondence made by the petitioner to the respondent, petitioner himself has enclosed along with the writ petition as Annexure P/3.

उक्त भूमि में से अपने एवं आपके विभाग ने 0.98 एकड़ भूमि अधिग्रहित कर ली गई थी। अधिग्रहण की शर्तानुसार आपके विभाग को उक्त अधिग्रहित भूमि में से 1/5 हिस्से की पूर्ण विकसित भूमि 75ग100 फुट 75,000 वर्गफुट प्रदान की जानी थी एवं शेष भूमि की राशि 25,077 राशि प्रदान करनी थी। एवं उक्त राशि में से आपके विभाग ने आवेदक को तात्कालिक समय में मात्र 10,377-60 पैसा की राशि भुगतान की गई।

The plain reading of the aforesaid contents of Annexure P/3 establishes two things, the admission of the petitioner that he was entitled for only 7500 sq.ft. of developed plot and the total compensation payable to him was Rs. 25,077/-. Of the aforesaid amount of Rs. 25,077/- the petitioner was paid an advance amount of Rs.10,377.60.

Now what has to be further considered is that since there is a specific agreement entered into between the parties with specific clause in respect of the rate at which the respondent would acquire the property and the area of developed plot which the petitioner would be entitled for. The agreement also had a specific clause of payment of interest in the event of the Corporation not making the payments promptly to the petitioner. The insertion of the clause of payment of interest on default of payment of compensation by the respondent takes care of the damages or loss caused to the petitioner for the intervening period. So also, it needs consideration of the fact that as per Annexure P/2 with the writ petition he was given a developed plot equivalent to 1/5th of the total land acquired of the petitioner, as early as in the year 1990 itself and if the petitioner does not accept the same it is at his own risk. Another fact which needs consideration is that the petitioner also did not take any legal recourse if at all he was aggrieved of the offer so made by the respondents in the year 1990 and finally the petition was filed after more than a decade.

Moreover, by efflux of time the property offered by the respondent to the petitioner also has received much appreciation on its value and the area also as on date is the most prime commercial location so far as the city of Bilaspur is concerned and the value of the two properties offered by the respondent to the petitioner as it stands today is quite heavy and as such the petitioner would not be put to any substantial loss. Further, since the claim made by the petitioner is arising out of an agreement entered between the parties, the claim of the petitioner now cannot go beyond the terms of agreement. This court in exercise of its writ jurisdiction also would not be in a position to travel beyond the terms of agreement and grant the petitioner anything more than that has been agreed upon between the parties.

So far as the judgments cited by the petitioner in the case in the case of "Udho Dass v. State of Haryana & Ors." 2010(12) SCC 51, "Madhusudan Kabra & Ors. v. State of Maharashtra & Ors." 2018(1) SCC 140 and "Kashmir Singh v. State of Haryana & Ors." 2014(2) SCC 165 is concerned, the plain reading of the factual matrix of the case under which those judgments were passed by the Hon'ble Supreme Court would clearly reflect that those judgments were passed under an entire different factual scenario with no similarities in any manner to the facts of the present case. Therefore the principles and the ratio of law laid down in those judgments are distinguishable on its facts alone.

Accordingly the writ petition stands partly allowed to the extent that the respondent are directed to forthwith take steps to allot plot No. B/86 and B/87 measuring 4000 sq.ft. and 3500 sq.ft. each as is disclosed in their correspondence dated 09.01.2019. Further, in terms of the clause 7 of the agreement so far as payment of consideration is concerned, the payment of the balance amount payable to the petitioner should also be released immediately along with the interest on the said amount at the same rate as agreed upon in the agreement dated 21.07.1987.

Let the respondent take necessary steps in this regard for compliance of the above direction at the earliest preferably within a period of 90 days from the date of receipt of the copy of this order.

The writ petition accordingly stands partly allowed.