NAGPUR IMPROVEMENT TRUST versus SHEELA RAMCHANDRA TIKHE

[2018] 10 S.C.R.

NAGPUR IMPROVEMENT TRUST

SHEELA RAMCHANDRA TIKHE

(Civil Appeal No. 10853 of 2018)

BOCTOBER 31, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Nagpur Improvement Trust Disposal Rules, 1988:

s.5(2) – Disposal of surplus land – Policy decision in theCyear 1968 by appellant-Trust to dispose of 44.61 acres of land tothe owners of the land from whom it was acquired by way ofacquisition proceedings – Respondent (the owner from whom theland was acquired) filed application dated 3.9.1975 for re-allotmentof entire 44.16 acres – On 6.10.1975 decision was taken to re-allotthe 44.61 acres of land on lease to the respondent on certain termsDand conditions – The decision was communicated to the respondenton 16.10.1975 – The respondent requested to reduce the amount ofpremium – Appellant on 9.6.1982 allocated to the respondent 24acres out of 44.61 acres – Respondent acknowledged t54heallotment – Possession of the land was handed over on 11.11.1982E– The respondent thereafter requested the appellant to releaseremaining 20.61 acres of land to her – On 9.2.1989 appellantexecuted lease in favour of respondent in respect of 24 acres ofland – Respondent filed suit seeking declaration that she was entitledto re-allotment of 20.61 acres of land – Trial court decreed the suit– Appellate court held that the respondent was not entitled forFallotment – High Court, held that respondent was entitled forallotment of 20.61 acres of land – On appeal, held: Allotment ofland was subject to statutory Rules – When policy decision wastaken to dispose of surplus land (44.61 acres) and when 24 acresof land was allotted Land Disposal Rules, 1955 were applicable –GThereafter Land Disposal Rules, 1983 came into force and r. 5(2)thereof became applicable for disposal of land – Earlier resolutionno longer could have been availed, after enforcement of 1983 Rules– Respondent’s claim for allotment of 20.61 acres was not coveredby r.5(2) of 1983 Act – Hence no decree could have been passedcontrary to statutory Rules – Nagpur Improvement Trust LandHDisposal Rules, 1955.

NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRATIKHE

Limitation Act, 1963:

s.3(1) – Consideration of issue of limitation by appellatecourt – When such issue was not before trial court – Propriety of –Held: In view of s.3(1)entering into issue of limitation (when thesame was not before trial court) was permissible.

Allowing the appeal, the Court

HELD: 1.1 The allotment of land of the appellant-Trust wassubject to statutory Rules, namely, Nagpur Improvement TrustLand Disposal Rules, 1955. The Resolution dated 03.05.1968was passed by the Board for disposal of surplus land acquired forthe drainage and sewage disposal scheme, during the period ofenforcement of 1955 Rules. The allotment letter dated 16.10.1975to the plaintiff of 44.61 acres of land was in furtherance ofResolution dated 03.05.1968. The plaintiff after receipt of theletter dated 16.10.1975 prayed for reduction of amount ofpremium demanded. Several letters were written by the plaintiffregarding premium and allotment, last being letter dated02.03.1982 in which the plaintiff herself was not ready to acceptthe terms as communicated by letter dated 16.10.1975. The Truston 09.06.1982, thus, has alloted only 24 acres out of 44.61 acresof land. [Paras 13 and 15] [1087-A, E-G]1.2 The facts of the case and correspondence clearlyindicate that at no point of time allotment of 44.61 acres was madein favour of the plaintiff. The decision to allot 44.61 acres wascommunicated on 16.10.1975 on terms and conditions mentionedtherein. The plaintiff having expressed certain reservation withthe conditions and asked for relaxation of conditions and theTrust after taking into consideration the entire facts andcircumstances took decision to allot only 24 acres of land out of44.61 acres on 09.06.1982, there was never any firm allotment of44.61 acres of land to the plaintiff giving any indefeasible right ofallotment of 44.61 acres of land and the plaintiff herself has to beblamed 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, anew set of Rules for disposal of land of Nagpur Improvement

ATrust was framed, namely, Nagpur Improvement Trust LandDisposal Rules, 1983 which came into force w.e.f. 18.05.1983.Part III of the Rules dealt with manner of disposal of land. [Para16] [1088-C]

1.4 The present is case where for the disposal of the landBin question, Rule 5(2) of 1983 Rules became applicable from18.05.1983. The earlier Resolution of the Board dated 03.05.1968would no longer have been availed after the enforcement of 1983Rules for allotment of land. Sub-rule (2) of Rule 5 which providesfor no exception except as otherwise provided in sub-rule (1)and Part VI of these Rules. Hence, after the enforcement of theCRules the land vested and acquired by the Trust was to bedisposed of only in the manner as indicated in sub-rule (2) ofRule 5. [Para 17] [1089-B, C-D]

1.5 Admittedly 24 acres out of 44.61 acres of land wasalready allotted to the plaintiff on 09.06.1982 and Trust has takenDa decision not to allot any further land in view of its subsequentdecision dated 24.04.1983 to keep the remaining 20.61 acres ofland for Department of Social Forest Trees for Central Nurseryand for Nursery of the Nagpur Improvement Trust was taken bythe Board. After enforcement of Rules, 1983 which were broughtEinto force on 18.05.1983, 20.61 acres of land could not be allottedto 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 noteof the Rules, 1983 and held that the plaintiff was not entitled forFany further allotment. Rules, 1983 were also relied by the appellantbefore the High Court in the Second Appeal filed by the plaintiff.The High Court took the view that since the decision to allot44.61 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 whichshall not nullify the actions taken in accordance with the earlierGRules then prevailing. There is no question of nullifying thedecision taken on 06.10.1975 and 16.10.1975 which was takenearlier to the subsequent Rules, 1983. In pursuance of earlierdecision i.e. taken on 06.10.1975 and 16.10.1975 the entireallotment which took place prior to Rules, 1983 were completelysaved but allotment which could not culminate before enforcementH

of Rules, 1983, would not have been made after the enforcementof 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 landprior to 18.05.1983 on the basis of earlier decision no allotmentwould have been made after the enforcement of the Rules indisregard to the statutory Rules. The statutory Rules enforcedw.e.f 18.05.1983 substantially changed the manner of allotmentand more rigorous conditions were put on the land of the Trust.There cannot be any dispute with the proposition that after theland is acquired for public purpose it vests in the acquiring bodyand the land holder has no right to claim the land acquired. [Para19] [1090-H; 1091-A-B]State of Kerala and others v. M. Bhaskar Pillai andanother (1997) 5 SCC 432 : [1997] 1 Suppl. SCR 87;Sulochana Chandrakant Galande v. Pune MunicipalTransport and others (2010) 8 SCC 467 : [2010] 9 SCR 476 – relied on.

1.8 At best the application for re-allotment of 20.61 acresof land can be said to be pending at the time when new Rulescame in force. New Rules, thus, were fully attracted for any furtherdisposal 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 asotherwise provided in sub-Rule (1) only by holding public auction;inviting tenders by public advertisement; making offers to oraccepting offers from any Government, Local Authority, PublicSector Undertaking or body corporate which is owned orcontrolled by Government; inviting applications from persons orbodies of persons who are eligible for allotment of plots underRule 4, by public advertisement and land for public amenitiessuch as for primary school, vehicle stand, public latrine or urinal,public library, reading room, hospital, dispensary or such otherpurpose, etc. Plaintiff’s claim is not covered in any manner ofdisposal under Rule 5(2), hence no decree would have beenpassed by the trial court contrary to the statutory Rules asenvisaged by Rule 5(2). [Para 21] [1092-C-F]

1.9 The view of the High Court that Rules, 1983 areprospective and shall not effect the allotment made in favour of

Athe plaintiff on 06.10.1975 and 16.10.1975 was erroneous. Theallotments which were finalised in pursuance of Resolution dated06.10.1975 and 16.10.1975 were saved, but allotment of any landwhich could not take place finally before enforcement of Rules,1983 has to be in accordance with the Rules, 1983. [Para 21][1092-F-G]B

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 additionalland of 20.61 acres which can be at best said to be pending on theCdate of enforcement of Rules, 1983 would have been only dealtwith in accordance with Rule 5 of Rules, 1983 and disregard ofsaid Rules the trial court would not have decreed the suit directingthe Trust to execute lease in favour of the plaintiff of 20.61 acresof land. The decree of the trial court was clearly in the teeth ofthe statutory Rules and the High Court committed error in takingDthe view that Rules, 1983 were not applicable in the present case.Plaintiff was not entitled for the decree as has been granted bythe trial court and affirmed by the High Court. [Paras 23 and 27][1094-G-H; 1097-A]

Transport Nagar Free Zone Co-operative Society LimitedEv.. Nagpur Improvement Trust, 2005 (3) Bom.C.R. 485– referred to.

2. Lower Appellate Court has held that suit of the plaintiffwas barred by time it having been filed more than three yearsafter the refusal to allot the land. The High Court has held thatFthe Appellate Court has committed error of law in consideringthe issue of limitation which was not the question raised beforethe trial court. In view of section 3(1) of the Limitation Act noerror was committed by the Appellate Court in entering into theissue as to whether application was barred by time. The AppellateGCourt was well within its jurisdiction in considering the questionof 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 Representativesand Others (2015) 6 SCC 412 : [2015] 5 SCR 1075 –relied on.H

NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRATIKHE

Case Law Reference2005 (3) Bom.C.R. 485referred toPara 5[1997] 1 Suppl. SCR 87relied onPara 19[2010] 9 SCR 476relied onPara 20[1981] 2 SCR 742 relied onPara 21[2015] 5 SCR 1075 relied onPara 26

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10853of 2018.

From the Judgment and Order dated 14.03.2017 of the High Courtof Judicature of Bombay, Nagpur Bench at Nagpur in Second AppealNo. 122 of 2015.

Shyam Divan, Huzefa Ahmadi, Sr. Advs., Satyajit A. Desai,Ms. Anagha S. Desai, Anshuman Singh,, Advs. for the Appellant.

Mukul Rohatgi, Sr. Adv., Abhishek Bhoot, Ravindra Khapre, PratikR. Bombarde, Advs. for the Respondent.

The Judgment of the Court was delivered by

ASHOK BHUSHAN, J. 1. Leave granted.

2. This appeal has been filed by Nagpur Improvement Trust,challenging the judgment dated 14.03.2017 of High Court of JudicatureBombay at Nagpur in Second Appeal No. 122 of 2015, by which judgmentthe Second Appeal filed by the respondent has been allowed by settingaside the judgment of lower appellate court and restoring the judgmentof trial court decreeing the suit.

3. Brief facts of the case necessary to be noted for deciding thisappeal are:-

The Nagpur Improvement Trust, the appellant has been constitutedunder the Nagpur Improvement Trust Act, 1936. For the purposes ofDrainage and Sewerage Scheme Part-II, notification under Section 39of the Nagpur Improvement Trust Act, 1936 was issued on 27.11.1953for acquiring 44.61 acres of land of the respondent. An award waspassed on 31.12.1962 determining the compensation of Rs.23,500/- onthe basis of compromise, which compensation amount was paid to therespondent and possession was taken over by the appellant of the land.On taking up the possession, the land vested in the appellant, which

Abecame the absolute owner. statutory rule namely, NagpurImprovement Trust Land Disposal Rules, 1955 was framed in exerciseof power under Nagpur Improvement Trust Act, 1936 for disposal ofland by the Nagpur Improvement Trust. As per Rule 3 of the StatutoryRules, 1955, one of the mode of transfer of trust land was by directnegotiation with the party. With regard to land admeasuring 44.61 acresBas noted above, policy decision was taken by the Board of the Trustdated 03.05.1968 for disposal of land to the owners on lease by chargingthe determined premium and the ground rent. The appellant accordinglyinvited application for re-allotment of the land on lease. The respondentfiled an application dated 03.09.1975 for re-allotment of entire 44.61Cacres of land. decision dated 06.10.1975 was taken to re-allot the44.61 acres to the respondent on the terms and conditions stipulated inthe Board Resolution dated 03.05.1968. By letter dated 16.10.1975, theappellant informed the respondent in reference to her application dated03.09.1975 that land acquired by the Trust may be allotted to her on the

terms and conditions as mentioned in the letter. The letter dated 16.10.1975Dcommunicated that amount of consideration for allotment would be 1.5times of the amount received by them from the Land Acquisition Officer.The lessee can use the land only for Agriculture purposes and the amountof consideration will have to be made in maximum 10 installments. Therespondent was required to deposit amount of Rs.3,525/- towards firstEinstallment and sign the form of terms and conditions of the allotment,only after that the Trust would be able to take further action in the matter.The respondent in reply to the aforesaid letter wrote back to theappellant on 01.11.1975 requesting to revise the amount of premiumpayable by her. The respondent wrote further letters, lastly on 02.03.1982,Fagain reiterating her request to reduce the amount. It was furtherrequested that she should be given the land measuring 44.61 acres at thecost of acquisition only. The letter dated 02.03.1982 was replied by theappellant vide letter dated 09.06.1982 allocating land measuring 24 acresout of 44.61 acres. The revised premium for allotment of 24 acres was

fixed as Rs.19,230/- and first installment of 10% was requested to beGpaid immediately and to further accept terms and conditions of allotment.The respondent acknowledged the allotment letter dated 09.06.1982 andcommunicated her acceptance on 15.06.1982. The respondent acceptedthe allotment on revised premium. In pursuance of the acceptance ofallotment letter dated 09.06.1982 allotting 24 acres of land on terms andHconditions mentioned therein, the possession of 24 acres of land was

also handed over to the respondent on 11.11.1982. The respondent aftertaking possession of 24 acres of land again wrote letter dated 17.06.1983thanking the appellant for allotment of 24 acres of land and furtherrequesting to release remaining 20.61 acres of land. The appellant wroteon 31.12.1986 to the respondent to pay Rs.4514.95 due from her. Therespondent thereafter sent various representations for allotment ofremaining 20.61 acres of land. On 09.02.1989, lease was executed bythe appellant in favour of respondent for 24 acres of land as was allottedby allotment letter dated 09.06.1982. The respondent filed suit – RegularCivil Suit No. 2515 of 1989 against the Nagpur Improvement Trust,praying for following reliefs:-

(a)Declare that the plaintiff is entitled to re-allotment of 20.61acres of her land to her to the exclusion of anybody else asthe acquisition of the plaintiff’s land for the purpose ofdefendant’s scheme is not required by the defendant for itsscheme.

(b)Issue mandatory injunction directing the defendant to re-allot 20.61 acres of land out of survey no.9/1, 11 and 9/2 ofMouza Godani, Umrer Road, Nagpur, to the plaintiff andexecute lease indenture accordingly in favour of theplaintiff.

(c)Issue mandatory injunction directing the defendant to makethe offer of her land admeasuring 20.61 acres of suit landS/Nos.9/1, 11, 9/2 of Mouza Gondhani, Umrer Road, Nagpurto the plaintiffs land is not required by the defendant for itsscheme and the defendant permanently restrained frommaking offer of plaintiffs remaining suit land to anybodyelse in any manner and under any pretext.

(d)Declare that the plaintiffs suit land i.e. 20.6 acres of land inSurvey Nos. 9/1, 11, 9/2 of Mouza Godhani, Umrer Road,Nagpur, has been unnecessarily acquired with malafideintention and that it was never required and needed by theGdefendant for its drainage and Sewerage Disposal SchemePart-II as firstly notified on 27.11.1983, as per award dated31.12.1962.

(e)Saddle the costs of the suit on the defendant and

A(f)Grant any other relief which this Hon’ble Court deems fitin the facts and circumstances of the case.

The trial court framed following issues:-

1)Does the plaintiff prove by abuse of process of law,malafidely and under colorabale exercise of power thatBdefendant has unnecessarily acquired her land?

2)Does she further prove that she has the preferential rightto get reallotment of remaining 20.61 acres of land?

3)Does she further prove that she had deposited Rs.4515.95Cfor allotment of remaining 20.61 acres of land?

4)Does she further prove that defendant is avoiding to re-allot her remaining 20.61 acres of land?

5)Whether plaintiff is entitled to get relief as prayed?

6)What order and decree?

The trial court held that Issue No. 1 does not survive. Issue No.3was decided against the plaintiff, however, trial court answered the IssueNos. 2, 4 and 5 in favour of the plaintiff and decreed the suit holding thatplaintiff is entitled for allotment of remaining 20.61 acres of land. Plaintiff

was directed to deposit remaining premium amount of Rs.16,295/- alongEwith 10% p.a. interest and the appellant was directed to execute thelease-deed of land admeasuring 20.61 acres in favour of the respondent.

The appellant aggrieved by the judgment and decree of the trialcourt filed Regular Civil Appeal No. 632 of 2007. The District Judge,Nagpur formulated following points for consideration:-F

1)Whether respondent-plaintiff is entitled to allotment of thesuit land?

2)Is the suit barred by time?

3)Is the judgment and decree impugned herein call forinterference?G

4)What order?

The learned District Judge held that plaintiff was not entitled forallotment. The District Judge further held that suit filed by the plaintiffwas virtually suit for specific performance of the letter of allotmentdated 16.10.1975 and suit having been filed beyond period of 3 years isH

barred by time. The District Judge vide judgment dated 26.08.2014allowed the appeal, set aside the decree of the trial court and dismissedthe suit. Against the judgment of the Appellate Court, second appealwas filed by the respondent before the High Court. The High Courtframed following two substantial questions of law in the appeal:-

(1)Whether the lower appellate Court erred in applying andrelying on the Nagpur Improvement Trust Land DisposalRules, 1983, when in fact what was sought to be enforcedby the appellant was the order dated 16.10.1975 inconsonance with letter/order dated 06.10.1975 passed interms of Board Resolution dated 03.05.1968, i.e. decisiontaken by the respondent much prior to the framing of Rulesof 1983?

(2)Once the Nagpur Improvement Trust, the acquiring bodychooses to re-allot the land acquired, whether such actionof re-allotment can be enforced in the Court of Law?

The High Court held that plaintiff was entitled for allotment of20.61 acres of land in view of resolution of the Board dated 03.05.1968.The High Court also held that the Rules namely Nagpur ImprovementTrust Land Disposal Rules, 1983 having came into force on 18.05.1983was not applicable to the Board Resolution dated 03.05.1968 and thedecision taken on 06.10.1975 and 16.10.1975. The High Court furtherheld that trial court having not framed any issues regarding limitation,the first appellate Court committed error in holding that the suit wasbarred by limitation, consequently, the second appeal has been allowedby the High Court, restoring the judgment and decree of the trial court.The Nagpur Improvement Trust being aggrieved by the judgment of theHigh Court has come up in this appeal.

4. We have heard Shri Shyam Divan, learned senior counsel andShri Huzefa Ahmadi, learned senior counsel for the appellant. We havealso heard Shri Mukul Rohtagi, learned senior counsel, who has appearedfor the respondent.

5. Learned counsel for the appellant submitted that suit filed bythe plaintiff was barred by limitation. The appellant had claimed re-allotment of 44.61 acres of land as per Resolution of the Board dated03.05.1968. The Board having taken decision to allot only 24 acres ofland, which was communicated by letter dated 09.06.1982, the cause of

Aaction with regard to 20.61 acres of land arose on the said very date andsuit having been filed in the year 1989 is barred by time. It is furthersubmitted that after enforcement of Rules, 1983, Rule 5 provided formanner of disposal of land and there being no statutory provision for re-allotment of land to the land owner from whom land was acquired, thesuit filed by the plaintiff for claiming re-allotment could not have beenBdecreed. Earlier Rules, 1955, which permitted allotment by directnegotiations having been rescinded and statutory Rules, 1983 created aprohibition for allotment of any land of the Trust except as Rule 5(2), theclaim of the plaintiff was liable to be dismissed and the trial courtcommitted error in decreeing the suit. It is further submitted that evenCthe Rules 1955, Rule 3(a), which provided for allotment of land by directnegotiations was struck down by Division Bench of the Bombay HighCourt vide its judgment dated 7/20.09.2004 Transport Nagar Free ZoneCo-operative Society Limited Vs. Nagpur Improvement Trust,2005(3) Bom.C.R.485. The plaintiff could not have relied on Rules,1955 claiming allotment. The High Court committed error in observingDthat First Appellate Court erred in considering the question of limitationwhen no issue was framed by the trial court. It is submitted that suithaving been barred by limitation, the Appellate Court was well within itsjurisdiction to enter into the issue of limitation and hold that the suit wasbarred by time. The suit filed in the year 1989 was clearly barred byEtime and was rightly dismissed by the First Appellate Court. The HighCourt committed error in holding that Statutory Rules, 1983 were notapplicable.

6. Shri Mukul Rohatgi, learned senior counsel refuting thesubmission of counsel for the appellant contends that plaintiff was clearly

Fentitled for allotment of 20.61 acres of balance area of land as wasalready allotted by letter dated 16.10.1975. The allotment of land to theplaintiff was under Rule 5 of Rules, 1955. Hence, Division Bench judgmentrelied by the appellant in Transport Nagar Free Zone Co-operativeSociety Limited (supra) is not applicable. The resolution having beenpassed by the Board to re-allot area acquired from plaintiff, it was noGlonger matter of contract. The letter dated 09.06.1982 allotting 24acres of land cannot be said to be letter denying allotment of 44.61acres, hence no cause of action arose to the plaintiff in the year 1982and first time cause of action arose in the year 1989 when lease-deedwas executed. Hence, the suit of the plaintiff was not barred by limitation.HThe suit of the plaintiff was filed under Section 39 of the Specific Relief

Act, 1963 by which plaintiff was enforcing her entitlement.

7. Learned counsel for the respondent further contends thatpresent is not case where this Court may exercise its jurisdiction underArticle 136 of the Constitution of India by interfering in the judgment ofthe High Court. The total area of land was 44.61 acres which was ownedby the plaintiff and was acquired and Trust having taken decision toreturn the land to land owner since it was no longer required for thescheme, the plaintiff has every right to receive acquired area of 44.61acres and no error has been committed by the trial court in decreeingthe suit.

8. We have considered the submissions of the learned counselfor the parties and perused the records.

9. The principal issue which needs to be decided is as to whethertrial court was right in holding that plaintiff was entitled for allotment of20.61 acres of land for which decree was granted. From the facts noticedabove, there is no dispute between the parties that in pursuance ofresolution dated 03.05.1968 of the Board, plaintiff had made an applicationon 03.09.1975 for allotment of entire 44.61 acres of land and letter ofallotment dated 16.10.1975 for 44.61 acres of land was issued. Theallotment letter dated 16.10.1975 contains certain conditions. It is usefulto extract the communication dated 16.10.1975 which is to the followingeffect:

“With reference to the above application letter this is to informyou that under the drainage and sewage disposal scheme allotmentof 44.61 acres land in Khasra NO.9-1,9-2 and 11 out of excessland acquired by the Trust may be allotted to you on the termsand conditions as mentioned in lease deed subjected to using itonly for agricultural purpose.

1.The amount of consideration for the above land would be1.50 times of the amount received from Land AcquisitionOfficer.

2.The allotment from the Trust Layout would be done on thebasis of lease for which Land Rent of 2% of the value ofconsideration will have to be paid.

3.The lessee can use the said land only for agriculturalpurpose. For irrigating the land the water of sewage flow

would be provided by Nagpur Improvement Trust and/orNagpur Municipal Corporation as per the rate fixed up byNagpur Municipal Corporation whenever possible.

4.The amount of consideration will have to be made inmaximum 10 instalments and on the remaining unpaidBamount of the consideration interest would be charged atthe rate of 10% p.a.

Hence you are required to deposit amount of Rs.3,525/- towards firstinstalment of the consideration in this office at the earliest and sign theform of terms and conditions of the allotment. Only after that the TrustCwould be able to take further action in the matter which please note.”

10. On receipt of letter dated 16.10.1975 appellant requested forreduction of proportionate value of the premium from the total amountand further wrote on 02.03.1982 to the Trust wherein rate of 1.5 timesof the amount of compensation was asked to be reduced. In the letterDdated 02.03.1982 following request was made by the plaintiff:

“Considering all the situation stated above, how can I giveyou more amount as cost of field which you acquired I wouldlike to request you to give the same at the cost of acquisitiononly. Further terms are acceptable to me, at any time.

If you do not consider my above request, I will have tomove the Govt. for shelter.”

11. After receipt of the letter dated 02.03.1982 the Trust by letterdated 09.06.1982 made allotment of 24 acres out of 44.61 acres of landto the following effect:

“With reference to your application mentioned above this is toinform that the Chairman is pleased to consider your request forallotment of land measuring about 24 acres out of 44.61 acres ofland acquired under drainage and sewerage disposal scheme onthe same terms and conditions informed to you vide No.ES/7821dated 16.10.1975. The revised premium for allotment of 24 acreswould be about Rs.19.230/- and you will have to pay 1[st] installment10% of the premium immediately and accept the terms andconditions for allotment and sign necessary lease indenture etc.”

12. The possession of 24 acres of land was also handed over toHthe respondent on 11.11.1982. The plaintiff thus was well aware that her

request for allotment of entire 44.61 acres was not acceded to and only24 acres have been allotted. Subsequent execution of the lease dated09.02.1989 was in continuation of the allotment dated 09.06.1982.

13. As noted above the allotment of land of the Trust was subjectto statutory Rules, namely, Nagpur Improvement Trust Land DisposalRules, 1955. Rule 3 of the Rules provides as follows:

“Rule 3. The transfer of Trust land shall be-

(a) by direct negotiation with the party; or

(b) by public auction; or

(c) by inviting tenders; pr

(d) by concessional rated.”

14. Rule 5 of the 1955 Rules which has also been referred is asfollows:

“Rule 5. The Trust may lease out on concessional rates any Trustland to any (i) Public institution or body registered under any lawfor the time being in force or to (ii) the evictees (which meanspersons whose lands in some locality have been compulsorilyacquired by the Trust and includes tenants in occupation of suchlands) which vests or is to vest in the Trust, or to (iii) the poorpersons residing within the limits of the Nagpur Corporation whohave no house of their own within the limits either individually oras member of joint family and whose annual income from allsources either individually or of the joint family, as the case maybe does not exceed Rs.1,800/- per annum.”

15. The Resolution dated 03.05.1968 was passed by the Boardfor disposal of surplus land acquired for the drainage and sewage disposalscheme, during the period of enforcement of 1955 Rules. The allotmentletter dated 16.10.1975 to the plaintiff of 44.61 acres of land was infurtherance of Resolution dated 03.05.1968. The plaintiff after receiptof the letter dated 16.10.1975 prayed for reduction of amount of premiumdemanded, several letters were written by the plaintiff regarding premiumand allotment, last being letter dated 02.03.1982 as extracted above, inwhich the plaintiff herself was not ready to accept the terms ascommunicated 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. The facts of the

Acase and correspondence as noticed above clearly indicate that at nopoint 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 onterms and conditions mentioned therein. The plaintiff having expressedcertain reservation with the conditions and asked for relaxation ofconditions and the Trust after taking into consideration the entire factsBand circumstances took decision to allot only 24 acres of land out of44.61 acres on 09.06.1982, there was never any firm allotment of 44.61acres of land to the plaintiff giving any indefeasible right of allotment of44.61 acres of land and the plaintiff herself has to be blamed for notgetting allotment of entire 44.61 acres of land on account of she havingCraised request for the reduction of the premium and she having notcommunicated her consent to accede to the terms and conditions ofallotment as proposed by the Trust.

16. After the allotment of 24 acres of land on 09.06.1982, newset of Rules for disposal of land of Nagpur Improvement Trust wasDframed, namely, Nagpur Improvement Trust Land Disposal Rules, 1983which came into force w.e.f. 18.05.1983. Part III of the Rules dealtwith manner of disposal of land. Rule 5(1) & (2) which are relevant forthe present case are as follows:

“Rule 5. General.- (1) No piece of Government land vested in orEmanaged by the Trust shall be transferred except with the generalor special sanction of the Government given in that behalf.

(2) Except as otherwise provided in sub-rule (1) and in Part VIof these rules, all other lands vested in and acquired by the Trustshall be disposed of by the Trust by -

F(i) holding public auction; or

(ii) inviting tenders by public advertisement; or

(iii) making offers to or accepting offers from any Government,Local Authority, Public Sector Undertaking or body corporatewhich is owned or controlled by Government;

(iv) inviting applications from persons or bodies of persons whoare eligible for allotment of plots under rule 4, by publicadvertisement to be published at least in one leading local newspaper each in Marathi, Hindi and English on the basis ofpredetermined premium or other considerations or both andHdeciding these applications by drawing lots, if necessary, as it

may determine, from time to time in accordance with the ruleshereinafter appearing.

(v) Land for public amenities such as for primary school, vehiclestand, public latrine or urinal, public library, reading room,hospital, dispensary or such other purpose may be transferredto the Corporation of the City of Nagpur, either free of premiumand ground rent or at nominal premium and ground rent as theTrust may determine in each case.”

17. The present is case where for the disposal of the land inquestion Rule 5(2) became applicable from 18.05.1983. The earlierResolution of the Board dated 03.05.1968 would no longer have beenavailed after the enforcement of 1983 Rules for allotment of land. Sub -rule (2) of Rule 5 which provides for no exception except as otherwiseprovided in sub-rule (1) and Part VI of these Rules. Sub-rule (1) of Rule5 referred to general or special sanction of the Government which is notapplicable in the present case. Part VI dealt with grant of land for religious,educational, charitable and public purposes which also is not applicablein the facts of the present case. Hence, after the enforcement of theRules of land vested and acquired by the Trust was to be disposed ofonly in the manner as indicated in sub-rule (2) of Rule 5. Admittedly 24acres out of 44.61 acres of land was already allotted to the plaintiff on09.06.1982 and Trust has taken decision not to allot any further land inview of its subsequent decision dated 24.04.1983 to keep the remaining20.61 acres of land for Department of Social Forest Trees for CentralNursery and for Nursery of the Nagpur Improvement Trust was takenby the Board. Thus, there was decision of Trust to set apart land of20.61 acres for Department of Social Forest Trees for Central Nurseryand for Nursery of the Trust. After enforcement of Rules, 1983 whichwere brought into force on 18.05.1983, 20.61 acres of land could not beallotted to the plaintiff except by following Rule 5 of the Rules, 1983.The First Appellate Court has categorically made note of the Rules,1983 and held that the plaintiff was not entitled for any further allotment.After referring to Rules, 1983 specifically Rules 5, 4 and 23, the FirstAppellate Court in paragraph 22 laid down following:

“22) In the present case, admittedly land adm.24 acres wasalready allotted to the respondent by the appellant before cominginto force of the Rules of 1983 and therefore, the appellant is noteven entitled to claim 500 sq. meter of land. Except the aforesaid

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Aprovision there is no other provision in these Rules empoweringthe Trust to allot land to the respondent without the sanction ofState Government.”

18. Rules, 1983 were also relied by the appellant before the HighCourt in the Second Appeal filed by the plaintiff. The High Court heldBthat Rules, 1983 had no retrospective effect so as to nullify the actionstaken in accordance with the earlier Rules, hence, Rules,1983 were notrelied. The High Court held that lower Appellate Court committed errorin relying on Rule 5 of Rules, 1983. The High Court in paragraph 18 ofthe judgment has held following:

C“18. The lower Appellate Court has committed an error in holdingthat the defendant-NIT could not have disposed of the land infavour of the appellant-plaintiff without there being any authorityof law. The reliance was placed by the lower Appellate Court onthe provision of Rule 5 of the Nagpur Improvement Trust LandDisposal Rules, 1982 to hold that there was no compliance andDthe allotment was not in conformity with it. In my view, suchreliance was misplaced. The reason being that the said Ruleswee brought in force on 18.05.1983 and the decision to re-allot44.61 acres of land to the appellant-plaintiff was taken on6.10.1975 and 16.10.1975, i.e. prior to coming into force of theseERules. The Rules had no retrospective effect so as to nullify theactions taken in accordance with the earlier Rules prevailing.The substantial question of law at serial No.(I) is, therefore,answered accordingly.”

19. The High Court took the view that since the decision to allotF44.61 acres of land was taken on 06.10.1975 and 16.10.1975 i.e. prior toRules, 1983, the Rules had no retrospective effect which shall not nullifythe actions taken in accordance with the earlier Rules then prevailing.There is no question of nullifying the decision taken on 06.10.1975 and16.10.1975 which was taken earlier to the subsequent Rules, 1983. Inpursuance of earlier decision i.e. taken on 06.10.1975 and 16.10.1975Gthe entire allotment which took place prior to Rules, 1983 were completelysaved but allotment which could not culminate before enforcement ofRules, 1983, would not have been made after the enforcement of Rules,1983 except in accordance with Rules, 1983. We have already noticedthat the plaintiff was allotted only 24 acres of land in pursuance of decisiondated 06.10.1975 and 16.10.1975 and request of the plaintiff to allotH

entire 44.61 acres of land was not acceded to and only 24 acres of landwas allotted possession of which was handed over to the plaintiff on11.11.1982. There being no allotment of rest 20.61 acres of land prior to18.05.1983 on the basis of earlier decision no allotment would have beenmade after the enforcement of the Rules in disregard to the statutoryRules. The statutory Rules enforced w.e.f 18.05.1983 substantiallychanged the manner of allotment and more rigorous conditions were puton the land of the Trust. There cannot be any dispute with the propositionthat after the land is acquired for public purpose it vests in the acquiringbody and the land holder has no right to claim the land acquired. In thiscontext reference has been made to State of Kerala and others vs.M. Bhaskar Pillai and another, (1997) 5 SCC 432. In paragraph 4following has been laid down:“4. In view of the admitted position that the land in question wasacquired under the Land Acquisition Act, 1894 by operation ofSection 16 of the Land Acquisition Act, it stood vested in theState free from all encumbrances. The question emerges: whetherthe Government can assign the land to the erstwhile owners? Itis settled law that if the land is acquired for public purpose,after the public purpose was achieved, the rest of the land couldbe used for any other public purpose. In case there is no otherpublic purpose for which the land is needed, then instead ofdisposal by way of sale to the erstwhile owner, the land shouldbe put to public auction and the amount fetched in the publicauction can be better utilised for the public purpose envisaged inthe Directive Principles of the Constitution. In the present case,what we find is that the executive order is not in consonancewith the provision of the Act and is, therefore, invalid. Underthese circumstances, the Division Bench is well justified indeclaring the executive order as invalid. Whatever assignmentis made, should be for public purpose. Otherwise, the land ofthe Government should be sold only through the public auctionsso that the public also gets benefited by getting higher value. “

20. This Court again in Sulochana Chandrakant Galande vs.Pune Municipal Transport and others, (2010) 8 SCC 467, heldthat after vesting of land in State free from all encumbrances afteracquisition, landowner becomes persona non grata after vesting and hasright to compensation only and cannot claim right of restoration of land

Aon any ground, whatsoever. In paragraph 22 following has been laiddown:

“22. In view of the above, the law can be summarised that oncethe land is acquired, it vests in the State free from allencumbrances. It is not the concern of the land owner how hisBland is used and whether the land is being used for the purposefor which it was acquired or for any other purpose. He becomespersona non grata once the land vests in the State. He has aright to get compensation only for the same. The person interestedcannot claim the right of restoration of land on any ground,whatsoever. “

21. The plaintiff’s case at the highest is that her application forallotment of 20.61 acres of land was pending consideration when Rules,1983 were enforced. The plaintiff’s own case is that refusal to allot20.61 acres of land took place only on 09.02.1989 when the Trust executedlease of 24 acres of land only. Thus, at best the application for re-allotmentDof 20.61 acres of land was pending at the time when new Rules came inforce. New Rules, thus, were fully attracted for any further disposal ofland by the Trust as per Rule 5 and as per sub-Rule (2) of Rule 5 theland would have been disposed of except as otherwise provided in sub-Rule (1) only by holding public auction; inviting tenders by publicEadvertisement; making offers to or accepting offers from anyGovernment, Local Authority, Public Sector Undertaking or bodycorporate which is owned or controlled by Government; invitingapplications from persons or bodies of persons who are eligible forallotment of plots under Rule 4, by public advertisement and land forpublic amenities such as for primary school, vehicle stand, public latrineFor urinal, public library, reading room, hospital, dispensary or such otherpurpose, etc. Plaintiff’s claim is not covered in any manner of disposalunder Rule 5(2), hence no decree would have been passed by the trialcourt contrary to the statutory Rules as envisaged by Rule 5(2). Theview of the High Court that Rules, 1983 are prospective and shall notGeffect the allotment made in favour of the plaintiff on 06.10.1975 and16.10.1975 was erroneous. As observed above the allotments whichwere finalised in pursuance of Resolution dated 06.10.1975 and16.10.1975 were saved, but allotment of any land which could not takeplace finally before enforcement of Rules, 1983 has to be in accordancewith the Rules, 1983. In this context, reference is made to the judgmentHof this Court in State of Tamil Nadu vs. M/s. Hind Stone and others,(1981) 2 SCC 205. In that case, the applications by various personsdesirous of taking mining lease were pending when the Rules for grantof lease were amended. The Rules were amended on 02.12.1977 byintroducing Rule 8-C, it was contended by several applicants that Rule8-C was not applicable to the applicants whose applications were pending.The relevant facts were mentioned in paragraph 4 which are to thefollowing effect:

“4. Several persons who held leases for quarrying black granitebelonging to the State Government and whose leases were aboutto expire, applied to the Government of Tamil Nadu for renewalof their leases. In some of the cases applications were madelong prior to the date of G.O. Ms. No. 1312 by which Rule 8Cwas introduced. Some applications were made after Rule 8Ccame into force. There were also some applications for the grantof fresh leases for quarrying black granite. All the applicationswere dealt with after Rule 8C came into force and all of themwere rejected in view of Rule 8C Several Writ Petitions werefiled in the High Court questioning the vires of Rule 8C on variousgrounds. Apart from canvassing the vires of Rule 8C, it wascontended that Rule 8C did not apply to grant of renewals oflease at all. It was also argued that in any event, in those casesin which the applications for renewal had been made prior’ tothe coming into force of Rule 8C, their applications should havebeen dealt with without reference to Rule 8C. The Madras HighCourt while not accepting some of the contentions raised onbehalf of the applicants, struck down Rule 8C on the ground thatit exceeded the rule making power given to the State Governmentunder Section 15 which, it was said, was only to regulate and notto prohibit the grant of mining leases. As consequence all theapplications were directed to be disposed of without referenceto Rule 8C. It was also observed that even if Rule 8C was validit applied only to the grant of fresh leases and not to renewals. Itwas also held that it was not open to the Government to keep theapplications pending for long time and then to dispose them ofon the basis of rule which had come into force later. The StateGovernment has come in appeal against the judgment of theMadras High Court while the respondent-applicants have triedto sustain the judgment of the Madras High Court on grounds

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Awhich were decided against them by the Madras High Court. “

22. Rejecting the argument that Rule 8-C is not attracted on theapplications which were pending on date of amendment, it was held thatapplications were required to be disposed of on the basis of the Rules inforce at the time of the disposal of the applications. Following was laiddown in paragraph 13:

“13. Another submission of the learned Counsel in connectionwith the consideration of applications for renewal was thatapplications made sixty days or more before the date of G.O.Ms. No. 1312 (December 2, 1977) should be dealt with as ifRule 8C had not come into force. It was also contended thateven applications for grant of leases made long before the dateof G.O. Ms. No. 1312 should be dealt with as if Rule 8C had notcome into force. The submission was that it was not open to theGovernment to keep applications for the grant of leases andapplications for renewal pending for long time and then to rejectthem on the basis of Rule 8C notwithstanding the fact that theapplications had been made long prior to the date on which Rule8C came into force. While it is true that such applications shouldbe dealt with within reasonable time, it cannot on that accountbe said that the right to have an application disposed of in areasonable time clothes an applicant for lease with right tohave the application disposed of on the basis of the rules in forceat the time of the making of the application. No one has vestedright to the grant or renewal of lease and none can claim avested right to have an application for the grant or renewal of alease dealt with in particular way, by applying particularprovisions. In the absence of any vested rights in anyone, anapplication for lease has necessarily to be dealt with accordingto the rules in force on the date of the disposal of the applicationdespite the fact that there is long delay since the making of theapplication. We are, therefore, unable to accept the submissionof the learned Counsel that applications for the grant or renewalof leases made long prior to the date of G.O. Ms. No. 1312should be dealt with as if Rule 8-C did not exist.”

23. We, thus, are of the considered opinion that the claim of plaintifffor allotment of additional land of 20.61 acres which can be at best saidto be pending on the date of enforcement of Rules, 1983 would have

been only dealt with in accordance with Rule 5 of Rules, 1983 anddisregard of said Rules the trial court would not have decreed the suitdirecting the Trust to execute lease in favour of the plaintiff of 20.61acres of land. The decree of the trial court was clearly in the teeth of thestatutory Rules and the High Court committed error in taking the viewthat Rules, 1983 were not applicable in the present case.

24. It is also relevant to notice that lower Appellate Court has heldthat suit of the plaintiff was barred by time it having been filed more thanthree years after the refusal to allot the land. The High Court has heldthat the Appellate Court has committed error of law in considering theissue of limitation which was not the question raised before the trialcourt. In paragraph 17 of the judgment following has been held:

“17. Though the allotment of 44.61 acres of land was on16.10.1975, the lease-deed in respect of 24 acres of land wasexecuted on 09.02.1989. Thus, there was refusal on 09.02.1989to execute the lease-deed in respect of 20.61 acres of land.Hence, the cause of action in terms of Article 54 of the LimitationAct would start running from 09.02.1989 when the defendant-NIT refused to execute the lease-deed. The suit in questionhaving filed on 15.12.1989 was not, therefore, barred by the lawof limitation. In fact, this was not the question raised before thetrial court and no issue was framed in respect of it. The lowerAppellate Court has committed an error of law in consideringsuch issue and holding that the suit in question was barred by thelaw of limitation. The finding of the lower Appellant Court,therefore, needs to be set aside.”

25. In so far as view of the High Court that Appellate Courtcommitted error in entertaining the question of limitation which was notthe issue framed by the trial court, suffice is to refer the provision ofSection 3 of the Limitation Act, 1963. Section 3(1) of the Limitation Actprovides as follows:

“Section 3. Bar of limitation.-(1) Subject to the provisionscontained in sections 4 to 24(inclusive), every suit instituted,appeal preferred, and application made after the prescribed periodshall be dismissed, although limitation has not been set up as adefence.”

26. This Court in Foreshore Cooperative Housing SocietyLimited vs. Praveen D. Desai(dead) through LegalRepresentatives and others, (2015) 6 SCC 412, had consideredthe question of jurisdiction of Court in reference to provisions of LimitationAct. Noticing Section 3 of the Act following was observed:

“48. Section 3 of the Limitation Act, 1963 clearly provides thatevery suit instituted, appeal preferred and application made afterthe prescribed period of limitation, subject to the provisionscontained in Sections 4 to 24, shall be dismissed although thelimitation has not been set up as defence.

49. Constitution Bench of five Judges of this Court in the caseof Pandurang Dhondi Chougule v. Maruti Hari Jadhav, AIR 1966SC 153, while dealing with the question of jurisdiction, observedthat plea of limitation or plea of res judicata is plea of lawwhich concerns the jurisdiction of the court which tries theproceeding. The Bench held(AIR p.155, para 10):

10. The provisions of Section 115 of the Code have been examinedby judicial decisions on several occasions. While exercising itsjurisdiction Under Section 115, it is not competent to the HighCourt to correct errors of fact however gross they may, or evenerrors of law, unless the said errors have relation to the jurisdictionof the court to try the dispute itself. As Clauses (a), (b) and (e)of Section 115 indicate, it is only in cases where the subordinatecourt has exercised jurisdiction not vested in it by law, or hasfailed to exercise jurisdiction so vested, or has acted in theexercise of its jurisdiction illegally or with material irregularitythat the revisional jurisdiction of the High Court can be properlyinvoked. It is conceivable that points of law may arise inproceedings instituted before subordinate courts which are relatedto questions of jurisdiction. It is well settled that plea of limitationor plea of res judicata is plea of law which concerns thejurisdiction of the court which tries the proceedings. finding onthese pleas in favour of the party raising them would oust thejurisdiction of the court, and so, an erroneous decision on thesepleas can be said to be concerned with questions of jurisdictionwhich fall within the purview of Section 115 of the Code. But anerroneous decision on question of law reached by thesubordinate court which has no relation to questions of jurisdiction

of that court, cannot be corrected by the High Court UnderSection 115. “

27. No error was committed by the Appellate Court in enteringinto the issue as to whether application was barred by time. The AppellateCourt was well within its jurisdiction in considering the question oflimitation. We, however, for the present case need not express any opinionwith regard to the question of limitation in view of we having held thatplaintiff was not entitled for the decree. Thus, even without entering intothe question of limitation we are of the clear opinion that plaintiff wasnot entitled for the decree as has been granted by the trial court andaffirmed by the High Court.

28. In the result, the appeal is allowed, the judgment of the HighCourt is set aside and the suit of the plaintiff stands dismissed.

Kalpana K. Tripathy Appeal allowed.