Nagpur Improvement Trust Disposal Rules, 1988: s.5(2) – Disposal of surplus land – Policy decision in the year 1968 by appellant-Trust to dispose of 44.61 acres of land to the owners of the land from whom it was acquired by way of acquisition proceedings – Respondent (the owner from whom the land was acquired) filed application dated 3.9.1975 for re-allotment of entire 44.16 acres – On 6.10.1975 decision was taken to re-allot the 44.61 acres of land on lease to the respondent on certain terms and conditions – The decision was communicated to the respondent on 16.10.1975 – The respondent requested to reduce the amount of premium – Appellant on 9.6.1982 allocated to the respondent 24 acres out of 44.61 acres – Respondent acknowledged t54he allotment – Possession of the land was handed over on 11.11.1982 – The respondent thereafter requested the appellant to release remaining 20.61 acres of land to her – On 9.2.1989 appellant executed lease in favour of respondent in respect of 24 acres of land – Respondent filed suit seeking declaration that she was entitled to re-allotment of 20.61 acres of land – Trial court decreed the suit – Appellate court held that the respondent was not entitled for allotment – High Court, held that respondent was entitled for allotment of 20.61 acres of land – On appeal, held: Allotment of land was subject to statutory Rules – When policy decision was taken to dispose of surplus land (44.61 acres) and when 24 acres of land was allotted Land Disposal Rules, 1955 were applicable – Thereafter Land Disposal Rules, 1983 came into force and r. 5(2) thereof became applicable for disposal of land – Earlier resolution no longer could have been availed, after enforcement of 1983 Rules – Respondent’s claim for allotment of 20.61 acres was not covered by r.5(2) of 1983 Act – Hence no decree could have been passed contrary to statutory Rules – Nagpur Improvement Trust Land Disposal Rules, 1955.
Limitation Act, 1963:
s.3(1) – Consideration of issue of limitation by appellate court – When such issue was not before trial court – Propriety of – Held: In view of s.3(1)entering into issue of limitation (when the same was not before trial court) was permissible. Allowing the appeal, the Court
HELD: 1.1 The allotment of land of the appellant-Trust was subject to statutory Rules, namely, Nagpur Improvement Trust Land Disposal Rules, 1955. The Resolution dated 03.05.1968 was passed by the Board for disposal of surplus land acquired for the drainage and sewage disposal scheme, during the period of enforcement of 1955 Rules. The 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 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. [Paras 13 and 15] [1087-A, E-G]
1.2 The facts of the case and correspondence 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 indefeasible right of allotment of 44.61 acres of land and the plaintiff herself has to be blamed for not getting allotment of entire 44.61 acres of land. [Para 15] [1087-G-H; 1088-A-B]
1.3 After the allotment of 24 acres of land on 09.06.1982, a new set of Rules for disposal of land of Nagpur Improvement Trust was framed, namely, Nagpur Improvement Trust Land Disposal Rules, 1983 which came into force w.e.f. 18.05.1983. Part III of the Rules dealt with manner of disposal of land. [Para 16] [1088-C]
1.4 The present is a case where for the disposal of the land in question, Rule 5(2) of 1983 Rules became applicable from 18.05.1983. The earlier Resolution of the Board dated 03.05.1968 would no longer have been availed after the enforcement of 1983 Rules for allotment 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. Hence, after the enforcement of the Rules the 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. [Para 17] [1089-B, C-D]
1.5 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. After enforcement of Rules, 1983 which were brought into force on 18.05.1983, 20.61 acres of land could not be allotted to the plaintiff except by following Rule 5 of the Rules, 1983. [Para 17] [1084-D-E]
1.6 The First Appellate Court has categorically made note of the Rules, 1983 and held that the plaintiff was not entitled for any further allotment. Rules, 1983 were also relied by the appellant before the High Court in the Second Appeal filed by the plaintiff. The High Court took the view that since the decision to allot
44.61 acres of land was taken on 06.10.1975 and 16.10.1975 i.e. prior to Rules, 1983, the Rules had no retrospective effect which shall not nullify the actions taken in accordance 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. [Paras 17,
18 and 19] [1089-E-F, H; 1090-E-G]
1.7 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 the Trust. There cannot be any dispute with the proposition that after the land is acquired for public purpose it vests in the acquiring body and the land holder has no right to claim the land acquired. [Para 19] [1090-H; 1091-A-B]
State of Kerala and others v. M. Bhaskar Pillai and another (1997) 5 SCC 432 : [1997] 1 Suppl. SCR 87; Sulochana Chandrakant Galande v. Pune Municipal Transport and others (2010) 8 SCC 467 : [2010] 9 SCR 476 – relied on.
1.8 At best the application for re-allotment of 20.61 acres of land can be said to be 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 advertisement and land for public amenities such as for primary school, vehicle stand, public latrine or urinal, public library, reading room, hospital, dispensary or such other purpose, etc. Plaintiff’s claim is not covered in any manner of disposal under Rule 5(2), hence no decree would have been passed by the trial court contrary to the statutory Rules as envisaged by Rule 5(2). [Para 21] [1092-C-F]
1.9 The view of the High Court that Rules, 1983 are prospective and shall not effect the allotment made in favour of the plaintiff on 06.10.1975 and 16.10.1975 was erroneous. The allotments which were finalised in pursuance of Resolution dated 06.10.1975 and 16.10.1975 were saved, but allotment of any land which could not take place finally before enforcement of Rules, 1983 has to be in accordance with the Rules, 1983. [Para 21] [1092-F-G]
State of Tamil Nadu v. M/s. Hind Stone and others (1981)
2 SCC 205 : [1981] 2 SCR 742 – relied on.
1.10 Thus, the claim of plaintiff for allotment of additional land of 20.61 acres which can be at best said to be pending on the date of enforcement of Rules, 1983 would have been only dealt with in accordance with Rule 5 of Rules, 1983 and disregard of said Rules the trial court would not have decreed the suit directing the Trust to execute lease in favour of the plaintiff of 20.61 acres of land. The decree of the trial 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. Plaintiff was not entitled for the decree as has been granted by the trial court and affirmed by the High Court. [Paras 23 and 27] [1094-G-H; 1097-A]
Transport Nagar Free Zone Co-operative Society Limited v.. Nagpur Improvement Trust, 2005 (3) Bom.C.R. 485 – referred to.
2. 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 view of section 3(1) of the Limitation Act no error was committed by the Appellate Court in entering into the issue as to whether application was barred by time. The Appellate Court was well within its jurisdiction in considering the question of limitation. [Paras 24, 25 and 27] [1095-A-B, E; 1096-G-H] Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (dead) through Legal Representatives and Others (2015) 6 SCC 412 : [2015] 5 SCR 1075 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.