1. The plaintiff purchased an old dilapidated house in Nasik bearing Municipal No, 759, and abutting the Gayadhani Lane on the south for Rs. 10,000, by a sale deed, Exhibit 68, dated May 29, 1922. On June 26 following, he applied to the Municipality for permission to build a new house on the site thereof. The Chief Officer, thereupon, ordered that he should leave a space of eight feet on the south side all along the whole length of his house, which was eighty-nine feet seven inches from east to west, for being incorporated into the street adjoining it, and build on the remaining portion.
2. That was an illegal order. Admittedly, when the plaintiff asked for permission to build, a regular line of the street had not been prescribed. The Chief Officer could not order the plaintiff to set back his land. He could only lay down in what manner the new building should be erected having regard to the provisions of the Act.
3. The plaintiff then appealed to the general body on September 11, 1922, and that body resolved, on March 12, 1923, that the proposed new building should be set back to the extent of only three feet on the south side and compensation should be paid to him for the setback. The plaintiff appears to have agreed to give up the strip of his land, three feet wide, to the Municipality, and so far it may be said there was an agreement. But it is an agreement which it is impossible for any Court to carry into effect on account of its uncertainty. It is not possible for the Court to decide for the parties what should be the price to be paid by the Municipality for the land that the plaintiff agreed to give up to them.
4. However, on April 5, 1923, the plaintiff made an application, demanding the price of the land taken by the Municipality. As a matter of fact nothing really effective was done to arrive at an agreement with regard to the price. There were negotiations to refer the dispute to arbitration, but no arbitrators were appointed to take up the reference. It does not appear even that there was any submission to arbitration. There was only a certain amount of conversation with regard to the method by which the amount of compensation should be calculated.
5. The plaintiff then brought a suit to recover compensation, and the defendant pleaded that the suit was premature and was barred under Section 160 of the District Municipal Act. The Judge found this question in favour of the plaintiff. But, going into the question of what was the value of the strip of land given up by the plaintiff, held it was Rs. 1,600 only, as the defendant Municipality had agreed to pay for the site, and not for the structure thereon.
6. Now, we think that the whole of the proceedings taken were wrong owing to a failure on the part of the Municipality to realize what their proper powers were under the Act. We have not been referred to any section of the Act under which the Municipality would have the power to acquire any portion of the plaintiff's land by agreement. They I certainly had no power whatever to call upon the plaintiff to surrender to them the strip of land. If they required to obtain possession of any portion of the plaintiff's land they would probably have to show that it was required for a public purpose before they could spend Municipal funds on the acquisition.
7. However that may be, we have here merely negotiations between the parties which near crystallized into an agreement which could be enforce by the Court. Therefore, there is no jurisdiction by which the Court can be entitled to make a contract for the parties and decide between them what would be the amount to be paid by the Municipality for the plaintiff's land.
8. We think then that the cross-objections that the suit should have been dismissed must be upheld and the suit must be dismissed. In the circumstances of the case we make no order as to costs.