Bombay High Court
Town Planning Officer A’Nagar And … vs Abdul Razak Abdul Karim And Others on 18 July, 2025
2025:BHC-AUG:18767
1 SA.144-1999.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.144 OF 1999
1. Town Planning Officer,
Ahmednagar Municipal Corporation,
Ahmednagar.
2. Ahmednagar Municipal Corporation,
Ahmednagar through it's
Commissioner. ... Appellants.
Versus
1. Abdul Razak Abdul Karim (Died)
Through L.Rs.
1(i) Sugrabi Abdul Rajjak Khan,
Age 70 years, Occu. Household,
1(ii) Javed Abdul Rajjak Khan (Died)
Since deceased through L.Rs.,
i] Akhtar Javed Khan,
Age: 51 years, Occu. Household,
R/o. Opp. Nehru Statute, Misgar Colony,
Laltaki, Ahmednagar-414 001.
ii] Shabana Javed Khan,
Age: 41 years, Occu. Household,
R/o. Appu Hatti Chowk, Misgar Chawl,
Laltaki, Ahmednagar 414 001.
iii] Wajid Javed Khan,
Age: 37 years, Occu. Business,
R/o. H. No. 118, Appu Hatti Chowk,
Misgar Chawl, Laltaki, Ahmednagar - 414 001.
iv] Tanvir Javed Khan,
Age: 30 years, Occu. Business,
R/o. H. No. 118, Appu Hatti Chowk,
Misgar Chawl, Laltaki, Ahmednagar - 414 001.
2 SA.144-1999.odt
v] Rizwana Irfan Tambatkar,
Age: 33 years, Occu. Household,
R/o. Laltaki, Misgar Chawl, Ahmednagar.
vi] Najema Yunus Shaikh,
Age: 35 years, Occu. Household,
R/o. Survey No. 347, Galli No. 30, Siddharth Nagar,
Near In Aam Masjid, Pune.
1(iii)Khalid Abdul Rajjak Khan,
Age 58 years, Occu. Business,
1(iv)Hamid Abdul Rajjak Khan,
Age 56 years, Occu. Business,
All R/o Misgar Colony, Laltaki,
Ahmednagar.
1(v) Asifa Mahemodddin Sakharekar,
Age 52 years, Occu. Household,
R/o Opp. Chhotibi Masjid, Hatim Parisar,
Tq. Papadi, District Thane, Wasai.
2. Abdul Rashid Abdul Kadar,
Since deceased through L.Rs.,
(i) Mr. Kauser Khan,
(ii) Mr. Sahail Khan,
(iii) Mr. Ashfaq Khan,
(iv) Mr. Mansoor Khan,
All Major, Occ. of all Nil.
R/o C/o Khalid Abdul, Razak Khan,
Lal Taki, Misgal Colony, Ahmednagar.
3. Aijaj Abdul Kadar,
Age 45 years, Occu. Business.
4. Akhatar Mohammad Ibrahim (Died),
Since deceased through L.Rs.,
4-A) Wazeedu Rahman Zikroo Rahman,
Age 22 years, Occu. Nil,
4-B) Sayeeda Zikroo Rahman,
Age Major, Occu. Household,
3 SA.144-1999.odt
4-C) Zahida Zikroo Rahman,
Age 25 years, Occu. Household,
4-D) Sayeed Zikroo Rahman,
Age Major, Occu. Nil,
All through Khalid Abdul Razzakhan
General Power of Attorney Holder,
R/o Lal Taki, Misgal Colony, Ahmednagar,
5. Nazma Mohamad Ibrahim,
Age : 48 years, Occu. Household,
Nos.2 to 5 through their
General Power of Attorney Holder
Khalid Abdul Razakhan.
All R/o Laltaki, Misgar Colony,
Ahmednagar.
6. The State of Maharashtra,
Through Collector, Ahmednagar.
7. Director of Regional Town Planning,
Nashik Division, Nashik. ... Respondents.
...
Advocate for Appellants : Mr. Subodh P. Shah.
Advocate for Respondent Nos.1(i), 1(iii) to (v) & 5 : Mr. Ajeet
B. Kale.
Advocate for Respondent Nos.2(2), 2(iv) : Mr. Sandip R.
Andhale.
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 10.07.2025
PRONOUNCED ON : 18.07.2025.
JUDGMENT :
–
1. Heard both sides finally.
4 SA.144-1999.odt
2. This appeal was admitted on 26.02.2001 and ground
Nos.I, II, III, V, VI, VII and VIII were recorded to be substantial
questions of law involved in the appeal. Both sides mainly
addressed substantial questions of law mentioned in ground
Nos.I, II, III, V, VI. No any other substantial question of law is
pressed into service by the parties.
3. Appellants are original defendant Nos.3 and 4 who are
challenging judgment and decree in Regular Civil Suit No.913
of 1989 passed by Joint Civil Judge Senior Division,
Ahmednagar on 17.01.1995 which is confirmed by judgment
and decree dated 09.12.1998 by Additional District Judge,
Ahmednagar in Regular Civil Appeal No.80 of 1995. Parties are
referred to by their original status.
4. Plaintiffs are granted relief of declaration that they are
owners of the suit property. The defendants are directed to
remove encroachment on the suit property and to deliver
vacant possession thereof to the plaintiffs. Appellant No.1 is
directed to furnish account of income fetched from the suit
property.
5. The plaintiffs claim to be owner of City Survey No.1269,
1270, 1271 and 1282 which are converted into plot Nos.76,
5 SA.144-1999.odt
136, 135, 134 respectively, situated within Municipal limits of
Ahmednagar city, Dane Dabara. The suit plots were purchased
by Fakir Mohamed Hafiz on 04.07.1899 and the plaintiffs
inherited them. They found that suit plots were encroached by
third persons by erecting temporary stalls. On making inquiry,
it revealed that the suit plots were reserved for parking of
bullock carts (Gadi Tal) in town planning scheme of 1928. It
further revealed that without resorting to due procedure of law
of either acquisition or payment of compensation, defendant
No.2/the then Municipal Council grabbed possession. It
inducted third persons by executing lease deeds in their favour
and was deriving profits unauthorisedly. The plaintiffs issued
notices to the appellants and others on 18.12.1987 for
releasing the suit plots which was not replied. The reservation
was claimed to have been lapsed.
6. The suit was contested by defendants by filing written
statement. It is contended to be barred by time. Ownership of
respondent Nos.1 to 5 was disputed. It is contended that Civil
Court had no jurisdiction. No notice was issued under Section
80 of the Civil Procedure Code. It is further contended that
suit plots were included in the town planning scheme under
the Bombay Town Planning Act of 1915 (hereinafter referred
6 SA.144-1999.odt
to as “Act” for sake of brevity and convenience) and reserved
for cart parking. Arbitrator was appointed and compensation
of Rs.3,001/- was determined.
7. Predominant plea of the defendants was that suit plots
vested in the local authority due to finalization of town
planning scheme vide resolution dated 07.05.1928. A
notification to that effect was published in the gazette. It is
contended that nobody from the plaintiffs approached the
defendants for receiving compensation of 3,001/-. It is further
contended that the reservation could not lapse under Section
127 of Maharashtra Regional Town Planning Act.
8. Plaintiffs adduced oral evidence of three witnesses. The
defendants did not adduce any oral evidence. The
correspondence between City Survey Office and the Local
Authority are placed on record. Notification dated 07.05.1928
under Section 40 of Act Exh.60 and final scheme Exh.72 are
the vital documents around which entire matter revolves.
9. Learned counsel Mr. Subodh P. Shah submits that both
the Courts below overlooked that suit plots were reserved in
town planning scheme which was finalized on 07.05.1928. In
a final town planning scheme, compensation of Rs.3,001/- was
7 SA.144-1999.odt
computed which was payable to the original owner. In view of
Section 41 suit plots absolutely vested in the local body. He
would submit that at the relevant time, Bombay Town Planning
Act 1915 was in force which was superseded by Bombay Town
Planning Act of 1954 and lastly by Maharashtra Regional Town
Planning Act 1966 (hereinafter referred to as “M.R.T.P Act” for
sake of brevity and convenience). The provisions of Section
127 of M.R.T.P. Act are not attracted and the claim of the
plaintiffs based on Section 127 is misconceived. It is contended
that plaintiffs are approaching belatedly. It is vehemently
contended that in view of vesting of the plots, no question of
possession or compensation or acquisition would arise.
10. It is submitted that plaintiffs did not challenge award of
the arbitrator or notification dated 07.05.1928, Exh.60 and
final scheme Exh.72. It is submitted that final town planning
scheme was revised in the year 1960 and there is no confusion
for vesting of the plots in the defendants. Lastly, it is submitted
that both the Courts below committed patent illegality in
holding that without resorting to the provisions of Land
Acquisition Act, the suit plots have been taken into possession
and allotted to third person.
8 SA.144-1999.odt
11. Per contra, Mr. Ajeet B. Kale for respondents/original
plaintiffs would submit that it was not that on 07.05.1928, the
scheme was sanctioned but it was in the year 1950 which is
evident from letter dated 05.04.1983 at Exh.120. It is
vehemently contended that there is absolutely no record to
show that procedure of acquisition under Land Acquisition Act
of 1894 was ever undertaken. No notification under Section 6
of Land Acquisition Act was ever issued. No compensation was
paid because suit plots were in the heart of the city and could
have fetched considerable compensation. It is contended that
title of the plaintiffs is evident from city survey record and
there is no challenge to their title. Though the suit plots were
reserved it was incumbent upon the defendants to acquire
them by following due procedure. Plaintiffs rightly issued
notices at Exh.61 and 62 on 18.12.1987 under Section 127 of
M.R.T.P. Act. For non-compliance of the same, plaintiffs are
entitled to get back suit plots and those stand de-reserved.
12. Learned counsel Mr. Kale further submits that arbitrator’s
role is very limited to the extent of determination of
compensation and contributions. The determination of
Rs.3,001/- would not validate vesting of the title with the local
body. He would further submit that there is a difference
9 SA.144-1999.odt
between scheme and development plan. The provisions of
Section 126 and 127 are applicable for the town planning
schemes also. It is submitted that Exh.60 pertains to scheme
for Dane Dabara and Exh.72 is the resolution which would not
make out case of the defendants. It is submitted that Section
51 of the Act also contemplates acquisition of the property
reserved for the public purpose under town planning scheme,
which is not complied with. Lastly, it is submitted that there
are concurrent findings of facts and no interference is called
for.
13. Learned counsel Mr. Sandip Andhale appearing for
respondent No.2 adopts the submissions of respondent No.1.
Additionally, he would submit that the defendants did not lead
any evidence and therefore, they are bound to fail in appeal.
No material is placed on record by them to show that
possession was actually handed over by the plaintiffs to the
defendants.
14. I have considered rival submissions of the parties. Both
the Courts below concurrently held that plaintiffs are the
owners of the suit plots. Those were purchased by their
predecessor Fakir Mohamed Hafiz on 04.07.1899. They have
placed sufficient material in the form of Exh.82 to 85 to
10 SA.144-1999.odt
support their title. Even final scheme at Exh.72 upon which
great reliance is placed by the defendants discloses name of the
owner in its redistribution and valuation statement which
corroborates claim of title. I find no merit in the submission of
learned counsel for the appellant that plaintiffs are not the
owners.
15. The core question which goes to the root of the matter is
as to whether due to sanction of final town planning scheme
suit plots vested with the local authority or as to whether the
suit plots need to be acquired by the local authority after
following due procedure of law.
16. Trial Court recorded following findings :
(i) Ownership of the plaintiffs is proved.
(ii) Municipality did not produce any record to show
payment of compensation.
(iii) There was no demarcation of the plots.
(iv) City survey record did not show implementation of
town planning scheme.
(v) Letter dated 05.04.1983 at Exh.120 shows
sanctioning of the scheme in the year 1950 but
there is no demarcation and handing over
possession as per scheme.
11 SA.144-1999.odt
(vi) Suit plots were not acquired as per procedure
under Land Acquisition Act.
(vii) No finalization of town planning scheme in 1928
by taking recourse to Land Acquisition Act.
(viii) Suit was within limitation.
(ix) Reservation on the suit plots lapsed and those are
to be restored to the plaintiffs.
17. Lower Appellate Court confirmed the findings of the
Trial Court and reiterated that Municipal council did not take
any step to acquire suit plots and the reservation lapsed in
view of notice dated 18.12.1987.
18. The judgment passed by both the Courts below do not
show any discussion on Section 40 and 41 of the Act and their
repercussions. It cannot be lost sight of that suit plots were
reserved for some public purpose during the British
Government. Present Regular Civil Suit No.913 of 1989 is
filed on 19.12.1989. M.R.T.P. Act came into force on
11.01.1967. Before that, there was Bombay Planning Act 1951
which was repelled by Bombay Town Planning Act 1954. For
the purpose of reservation of the land, its acquisition and its
vesting in local body Bombay Town Planning Act of 1915 was
applicable. Both the Courts below overlooked this aspect of
12 SA.144-1999.odt
the matter and proceeded to examine the facts in view of
provisions of M.R.T.P. Act.
19. If the defendants succeed in proving that the vesting of
the suit plots are in accordance with Act, then submissions
referring to Section 126 or 127 of M.R.T.P. Act are redundant.
If their plea of vesting fails then only the purchase notice dated
18.12.1987 issued under Section 127 of M.R.T.P. Act would
come into effect. Both the Courts below negative plea of the
defendants that there was lawful vesting of the suit plots in the
local body and proceeded to examine whether the reservation
lapsed or not. This is grave error of jurisdiction committed by
both the Courts below. Without conducting foremost inquiry of
vesting of the suit plots under the Act, it was held that
reservation lapsed by implication of Section 127 of the M.R.T.P.
Act. The substantial questions of law pressed into service
specifically pertain to vesting of the suit land under Section 41
of the Act.
20. The defendants have not led any oral evidence on
record. The correspondence between Local Authority and City
Survey Office Exh.60, Exh.72, letter dated 05.04.1983 Exh.120
are the public documents. I have gone through the documents
Exh.72 and Exh.60 notification dated 07.05.1928, and town
13 SA.144-1999.odt
planning scheme of Dane Dabara (final) at Exh.72. A
document at Exh.72 is comprising of covering letter dated
31.01.1926 issued by Arbitrator and town planning scheme
Dane Dabara containing re-distribution and valuation
statement. Covering letter dated 31.01.1926 is issued by
Arbitrator forwarding a final scheme under Section 30 (10) of
the Act. The relevant provisions is as follows :
“30. In accordance with the prescribed procedure the
arbitrator shall –
(1) ..........
(2) ..........
(3) ..........
(3A) ..........
(3B) ..........
(3C) ..........
(3D) ..........
(4) ..........
(5) ..........
(6) ..........
(7) ..........
(8) ..........
(9) ..........
(10) draw up in the proscribed form the final scheme
in accordance with the draft scheme :
provided that –
(i) he may make variations from the draft scheme ;
(ii) any variation estimated by him to involve an
increase of ten per centum in the costs of the scheme
14 SA.144-1999.odtas described in Section 16 shall require the sanction
of the [Provincial Government]:
Provided further that he shall make no substantial
variation without the consent of the local authority
and without hearing any objections that may be raised
by the owners concerned ; and that in the case of any
substantial variation made by him the owners
concerned shall have the right of appeal to the
[Provincial Government].
21. Re-distribution and valuation statement shows name of
the plaintiffs at serial No.56, suit plots, their area and value
determined to the tune of Rs.3,001/-. There is no material on
record to show that this amount was ever received by the
plaintiffs. Equally it is true that no such a claim was ever made
by them, muchless in the present proceedings.
22. In pursuance of the correspondence of the Arbitrator, a
resolution was passed by Government of Bombay on
07.05.1928 under Section 40(1) sanctioning the town planning
scheme final. Following are the relevant extract of resolution :
“Resolution – The requisite notification sanctioning the Town
Planning Schemes, Ahmednagar Nos. I and II-Final, under
Section 40(1) of the Bombay Town Planning Act, 1915 should
be published in the Bombay Government Gazette.
2. The notification should also be forwarded to the Editor
of the “Diu Mitra”, Ahmednagar, for publication and he
15 SA.144-1999.odtshould be asked to send the bill of costs to Government in
duplicate for payment.
3. The Collector of Ahmednagar should be asked to make
arrangements for posting copies of the notification in or near
the area included in the schemes and at the office of the local
authority.
By order of the Government of Bombay
(Transferred Departments)”
23. Simultaneously, notification was also published in the
gazette declaring the date of commencement of the final
scheme as 01.07.1928. Its relevant portion is as under :
“It is hereby notified that the Government of Bombay
(Transferred Departments) have been pleased to sanction the
final schemes. The said schemes will be open to the
inspection of the public at the office of the said Municipality
at Ahmednagar and copies will be obtainable at Rs.4-2-0 and
Rs.2-5-0 respectively, per copy. The date on which the
liabilities created by the schemes shall take effect and the
final schemes shall come into force shall be the first day of
July 1928.”
24. It is evident from Exh.60 notification dated 07.05.1928
that final town planning scheme for area Dane Dabara was
sanctioned on 07.05.1928 and it was given effect to from
01.07.1928. The minute reading of the notification shows
following relevant facts :
16 SA.144-1999.odt
(a) Making of town planning scheme vide notification
dated 20.08.1999 was sanctioned under Section 9(6) of
the Act.
(b) Draft town planning scheme was sanctioned under
Section 14 Sub Section (2) by the Government
notification dated 22.11.2023 and Arbitrator was
appointed for the said scheme under Section 29 of the
Act.
(c) Final scheme for approval was submitted by the
Arbitrator vide letter dated 24.08.1927 under Section
40(1)(2) for the approval of the Government.
(d) Final town planning scheme was sanctioned under
Section 40 vide Government Resolution dated
07.05.1928.
(e) Final scheme was given effect from 01.07.1928.
25. The final town planning scheme has been sanctioned as
per the provisions of the Act. There was no challenge to
various stages, notifications and the correspondence by
plaintiffs. The final scheme has also not been challenged by
the plaintiffs in the present suit. I have no iota of doubt that
due procedure of law was followed to sanction final town
planning scheme. The non disbursement of the compensation
17 SA.144-1999.odt
of Rs.3,001/- to the plaintiffs or their predecessor in title does
not affect the final sanction and its consequences.
26. Both the Courts below did not look into vital aspect of
the matter. It is relevant to note following provisions :
“40. (1) After the Tribunal of Arbitration has decided all
matters arising out of clauses [(3A), (3B), (3C),] (4), (5), (6)
and (9) of section 30, the arbitrator shall forward the final
scheme through the local authority to the [Provincial
Government]. [On receipt of the final scheme, the Provincial
Government may, by notification in the Official Gazette,
sanction the scheme or refuse to give such sanction, provided
that in sanctioning the scheme the Provincial Government
may make such modifications as may in its opinion be
necessary for the purposes of correcting an error, irregularity
or informality.]”
(2) ………………
“(3) On and after the date fixed in such notification a town
planning scheme shall have effect as if it were enacted in this
Act.”
“41. On the day on which the final scheme comes into
force –
(a) all lands required by the local authority’ shall, unless it is
otherwise determined in such scheme, vest absolutely in the
local authority free from all encumbrances;
(b) all rights in original plots which have been reconstituted
shall determine and the reconstituted plots shall become
subject to the rights settled by the arbitrator.”
18 SA.144-1999.odt
27. An inevitable conclusion by implication of Section 40
Sub Section (3) quoted above is that from 01.07.1928 finalized
town planning scheme has partaken the Act. Due to the
statutory force, the consequences of Section 41 follows. By
way of Section 41(a), the suit plots acquired by Ahmednagar
Municipal Council, the then Local Authority stood vested
absolutely free from all encumbrances in it with effect from
01.07.1928. Learned counsel Mr. Subodh Shah is right in
contending that the plaintiffs have lost all right, interest in the
suit plot due to Section 41(a) of the Act.
28. I have not been pointed any provisions by the learned
counsels for the respondents that after 01.07.1928 suit plots
are liable to be restored or divested from the Local Authority.
Once the title of the property is transferred to the Local
Authority, the exercise of issuing purchase notice on
18.12.1987 at Exh.61 and 62 under Section 127 of M.R.T.P. Act
is futile. The claim of the plaintiffs that no procedure was
followed for taking over possession, payment of compensation
or the acquisition of the suit plots under Land Acquisition Act
become redundant. Both the Courts below only focused on the
provisions of Section 126 and 127 of the M.R.T.P. Act.
However, it should have demonstrated that title remained with
19 SA.144-1999.odt
the plaintiffs so as to enable them to take recourse to Section
127.
29. It is contended that no material is placed on record to
show payment of compensation to the plaintiffs. I cannot be
oblivious of the fact that suit plots stood vested way back in
1928 and the suit is filed in 1989 after about 61 years. In all
probabilities it would not have been possible to preserve the
record and produce it before the Courts below. The plaintiffs
or their predecessor in title did not challenge vesting of the
properties in time. Hence, absence of any material would not
change the scenario or legal position.
30. The statutory effect of Section 40(3) and Section 41(a)
are very drastic and conclusive. Therefore, even in the absence
of any record showing handing over any possession, payment
of compensation and recourse to Land Acquisition Act would
not enure to the benefits of the plaintiffs. It has to be held that
the acquisition of the suit plots are as per Section 51 of the Act.
“51. Land needed for the purpose of a town planning scheme
shall be deemed to be land needed for a public purpose,
within the meaning of the Land Acquisition Act, 1894.”
31. Similarly, as per Section 126 and 127 of M.R.T.P. Act, the
procedure is laid down for acquisition of the properties
20 SA.144-1999.odt
required for public purpose and the consequences of not taking
steps for the acquisition. However, it is conclusively proved by
the defendants that vesting of the suit plots occurred on
01.07.1928 and therefore Section 126 and 127 can have no
application which came into force with effect from 11.01.1967.
By that time, vesting had already taken place.
32. Learned counsel Mr. Subodh Shah sought reliance on the
judgment of Dinkar Ramchandra Honale and others Vs. the
Municipal Corporation of Greater Bombay and another ; 1982
SCC OnLine Bom 67. He adverted my attention to paragraph
Nos.7 and 9 of the judgment. He is right in contending that
once the scheme is finalized rights of the original owner are
determined. Following is the relevant paragraph :
“9. Once it is held that on coming into force of the final
scheme and title or interest in the land stood extinguished
and the reconstituted plots became subject to the rights
settled by the Arbitrator along in view of the provisions of
the Section 83 of the Act, them the plaintiffs cannot be heard
that they had any subsisting right in the plots.”
33. Appellants further relied on judgment of Jayesh Dhanesh
Goragandhi Vs. Municipal Corporation of Greater Mumbai and
others ; (2012) 13 Supreme Court Cases 305 . In that case
appellant was owner of the plot which was within Borivali
21 SA.144-1999.odt
Municipal Council. It was reserved for public purpose under
draft scheme sanctioned in the 1962. The Arbitrator appointed
under the Act determined the compensation. A notice issued
by respondent/Corporation under Section 89 of the M.R.T.P.
Act was challenged by filing suit by the owners. Although
initially the plaint was rejected, lateron, due to the
intervention of High Court, City Civil Court decreed the suit
directing Corporation to take recourse to provisions of Section
126 of M.R.T.P. Act for the purpose of acquisition of the land.
Being aggrieved, Corporation preferred first appeal. It was
dismissed. Then, latter patent appeal was filed and it was
allowed by the Division Bench. Thereafter, matter reached
Supreme Court. The point for determination is quoted in
following paragraph :
“17. We have already stated that the only question that arises
for consideration is whether the landowners can take
recourse to Section 126 of the MRTP Act, once the town
planning scheme is framed and the final scheme has been
brought into force, vesting the land in the Corporation and
providing compensation as provided in the Town Planning
Scheme.”
34. Entire scheme of M.R.T.P. Act for land reserved for public
purpose and purport of sanction is dealt with in following
paragraphs :
22 SA.144-1999.odt
“35. The Town Planning Scheme envisaged under the MRTP
Act is, therefore, a code by itself and the provisions relating
to compensation are inbuilt in the scheme itself. The
provisions of Town Planning scheme provide for computation
of compensation by the Arbitrator and if a party is aggrieved
by the determination of compensation by the arbitrator, a
party has a right of appeal before the Tribunal under the
provisions of the MRTP Act. On the final scheme being
sanctioned by the State Government under Section 88(a), the
property vests free of all encumbrances in the State
Government and all rights of the original holders in the
original plot of land stand extinguished, the rights of the
parties are those governed by the provisions of the said
scheme and cannot be dealt with outside the scheme.”
“49. Once the town planning scheme is finally sanctioned
under Section 86, compensation is finally determined by the
Arbitrator, the property vests under Section 88 in the State
Government, then there is no question of resorting to further
acquisition under Section 126(2) of the Act. The words
“town planning scheme” used in Section 126(2) is in respect
of the town planning scheme which is yet to be finalized and
sanctioned under Section 86 by the State Government as a
final scheme for inviting objections under Section 67 of the
Act. Provisions of Section 126(2) providing for acquisition of
land, therefore will apply only prior to the town planning
scheme is finally sanctioned under the provision of Section
86 of the Act.”
“50. We therefore hold that the provisions of Section 126
can apply only when the scheme is not sanctioned and the
amount of compensation has not been determined by the
Arbitrator. Therefore, in cases where town planning scheme
23 SA.144-1999.odtis already sanctioned and the property vests in the State
Government under Section 88 (a) of the Act, the question of
resorting to Section 126(2) of the Act does not arise.”
35. Pertinently, Section 86 and 88 of M.R.T.P. Act are pari
materia to Sections 40 and 41 of Bombay Town Planning Act of
1915. Therefore, the observations and the ratio laid down by
the Apex Court in above referred paragraphs can be made
applicable to the facts of the present case. In view of the ratio
laid down by the Apex Court, it is not possible to countenance
submissions of learned counsel Mr. Kale and Mr. Andhale that
the appellants are obliged to follow procedure of acquisition
which includes payment of compensation. Appellants have
made out a case for causing interference in the impugned
judgment and decree.
36. It reveals from record that Arbitrator determined
compensation of Rs.3,001/- for the plots in question which can
be seen from Exh.72. It is the case of the defendants that
plaintiffs or their predecessor in title did not come forward to
receive the compensation. It is trite law that to receive
compensation for acquisition is a constitutional right under
Article 300-A. If Rs.3,001/- is remained to be disbursed, then
plaintiffs are entitled to receive it with interest. Being public
body, earlier provincial Government, then Municipal Council
24 SA.144-1999.odt
and present Corporation should have taken steps to disburse
the amount. Applicants are entitled to receive the
compensation with interest. Considering overall circumstances,
I find that appellant/Municipal Corporation is liable to pay
Rs.3,001/- @ Rs.10% per annum to respondent Nos.1 to 5.
37. For the reasons assigned above, I find that there is merit
in the substantial questions of law in ground Nos.I, II, III which
are required to be answered in favour of the appellants.
Impugned judgments are vitiated due to patent illegality and
grave error of jurisdiction. Hence, second appeal succeeds.
38. Second appeal is allowed.
39. The judgment and decree dated 17.01.1995 passed by
the Trial Court as well as judgment and decree dated
09.12.1998 passed by Lower Appellate Court are quashed and
set aside.
40. Regular Civil Suit No.913 of 1989 filed by respondent
Nos.1 to 5 shall stand dismissed. However, there shall be no
order as to costs.
25 SA.144-1999.odt
41. Appellants shall pay Rs.3,001/- with interest @ Rs.10/-
to respondent Nos.1 to 5 within a period of eight (8) weeks
from today.
42. Decree be drawn accordingly.
(SHAILESH P. BRAHME, J.)
…
vmk/-
