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Mohan Gopal Chavan Vs. T.R. Kulkarni and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 2078 and 2520 of 1968
Judge
Reported inAIR1973Bom150; (1972)74BOMLR822; ILR1973Bom700
ActsMaharashtra Regional and Town Planning Act, 1966 - Sections 74
AppellantMohan Gopal Chavan
RespondentT.R. Kulkarni and anr.
Appellant AdvocateSharad Manohar, Adv.
Respondent AdvocatePrakash S. Shah, Adv.
Excerpt:
.....section 74 of the maharashtra regional and town planning act, 1966, was dismissed by the district judge, sholapur, being the tribunal of appeal under the above act by a common judgment in the matter of town planning appeals nos. 1 to 113 of 1967. the judge held that in the petitioner's appeal no. 47 of 1967 as also in about other 10 appeals before him the municipal corporation of sholapur had not been made a party respondent. in five of these appeals, at the time of the first hearing of the appeals, an objection was raised on june 4, 1968, that the municipal corporation was a necessary party respondent for the purposes' of these appeals. in view of that contention, the petitioner applied on june 5, 1968, that the memo of appeal should be allowed to be amended by showing the municipal..........section 74 of the maharashtra regional and town planning act, 1966, was dismissed by the district judge, sholapur, being the tribunal of appeal under the above act by the judgment and order dated june 28, 1968, which is a common judgment in the matter of town planning appeals nos. 1 to 113 of 1967. the learned judge held that in the petitioner's appeal no. 47 of 1967 as also in about other 10 appeals before him the municipal corporation of sholapur had not been made a party respondent. in five of these appeals, at the time of the first hearing of the appeals, an objection was raised on june 4, 1968, that the municipal corporation was necessary party respondent for the purposes of these appeals. in view of that contention, the petitioner applied on june 5, 1968, that the memo of appeal.....
Judgment:

K.K. Desai, J.

1. The petitioner's Appeal No. 47 of 1967 under Section 74 of the Maharashtra Regional and Town Planning Act, 1966, was dismissed by the District Judge, Sholapur, being the Tribunal of appeal under the above Act by the judgment and order dated June 28, 1968, which is a common judgment in the matter of Town Planning Appeals Nos. 1 to 113 of 1967. The learned Judge held that in the petitioner's Appeal No. 47 of 1967 as also in about other 10 appeals before him the Municipal Corporation of Sholapur had not been made a party respondent. In five of these appeals, at the time of the first hearing of the appeals, an objection was raised on June 4, 1968, that the Municipal Corporation was necessary party respondent for the purposes of these appeals. In view of that contention, the petitioner applied on June 5, 1968, that the memo of appeal should be allowed to be amended by showing the Municipal Corporation as the 2nd respondent, the first respondent being the Town Planning Officer, Sholapur. The learned Judge rejected that application for amendment by his order dated June 5, 1968. In connection with rejection of the application, the learned Judge called upon the Advocate of the Municipal Corporation who was present for the hearing of all the other appeals before the learned Judge to show cause why the amendment should not be allowed. Having regard to the arguments advanced by the Advocate for the Corporation, the application was rejected. The appeal was then finally heard along with all the above other appeals and for the reasons mentioned in paragraph 27 of the common judgment delivered in the appeals, the learned Judge dismissed the Appeal No. 47 of 1967 of the present petitioner. The learned Judge stated that the appeal was filed on 1st February, 1967. The period of limitation prescribed under Section 74 (1) of the Act was two months from the date of the communication of the Arbitrator's (Town Planning Officer) decision to the appellant. The learned Judge held that the period of limitation commenced to run from January 5, 1967, and that the appeal should have been filed in any event having regard to the coming into force of the above Act of 1966 before the end of April 1967. The application for amendment of the memo of appeal by addition of the Corporation as 2nd respondent was made on June 5, 1968, much beyond the period prescribed for filing an appeal against the Corporation. He held that the delay was of one year and two months and there was no sufficient ground for condoning delay. For this reason, he dismissed the appeal.

2. The above decision of the learned Judge is challenged before us by Mr.Sharad Manohar on behalf fo the petitioner on diverse grounds. He submitted that appeals by third parties citizens under Section 74 of the Act must in all cases by against the Municipal Corporation concerned and not against any other parties at all. The result of this position was that the Municipal Corporation need not be mentioned in the memo of appeal as a party respondent. The default in not mentioning the Municipal Corporation was for the above reason of no consequence at all. Each and all the parties including the learned Judge were aware that the appeal was only against the Municipal Corporation of Sholapur and against no one else. The learned Judge should have, therefore, held that the default in mentioning the name of the Municipal Corporation as a respondent in the memo of appeal was of no consequence. The learned Judge's finding that the appeal was time barred against the Corporation was accordingly incorrect. He further submitted that it was the duty of the appellate Tribunal to take notice of the statutory provisions of the above Act and come to the above finding. In connection with his submissions, he referred to the provisions in Order 1, Rule 10 of the Code of Civil Procedure and Sections 21 and 29(2) of the Indian Limitation Act, 1963.

3. Mr. Shah for the respondent No.2 has submitted that we should not accept these submissions made by Mr.Manohar. In his submission, having regard to the expiry of time, the scheme as finally settled by the above appellate order has become final scheme and the disposal of the petitioner's appeal even by decision made in favour of the petitioner will not be sufficient to affect the finality of the scheme. He has in that connection relied upon the provisions in Section 86 of the Act. Mr.Manohar has in reply relied upon the provisions in Section 91 of the Act which enable the Planning Authority to correct irregularities in the scheme.

4. In connection with the above submissions, without referring to the contents of all the relevant sections of the Act, it may at once be observed that the provisions of the Act are meant for formulation, inter alia, of town planning schemes. In connection with the formulation of such schemes, power has been conferred on the authorities to reconstitute original plots of owners and to fix compensation for discontinuance of use of plots by the owners and Arbitrator appointed under Section 72 is authorised to determine and fix diverse matters specified in items (I) to (xviii) of sub-section (3) of Section 72. In connection with all these matters to be decided by Arbitrator, the aggrieved parties can only be on the one side citizens and on the other the Municipal Corporation interested in the finalisation of the Town Planning Scheme in question. In appeals filed before the appellate Tribunal under Section 74 of the Act in respect of the decisions made in the matter of each plot the owner of the plot on the one hand and the concerned Municipal Corporation would be the only directly aggrieved parties. The result of the provisions in the Act for formulation and finalisation of town planning scheme and particularly the contents of the Section 72 (3) and the provision for appeal under Section 74 is that in all appeals by citizens-plots owners before the appellate Tribunal under Section 74 the only aggrieved party would always be the concerned Municipal Corporation. Having regard to the above situation, the fact that the petitioner had mentioned in his memo of appeal the Town Planning Officer as the respondent and had failed to mention the Municipal Corporation of Sholapur as the 2nd respondent was of no consequence whatsoever. It was the result of the above scheme of the Act that the appellate Tribunal-the District Judge-heard all the appeals arising from the decisions made by the Arbitrator as Appeals Nos. 1 to 113 of 1967 at the same time and pronounced decision by a single common judgment in all the appeals. The learned Judge should have appreciated the above scheme of the Act and that the failure of the petitioner to mention the Municipal Corporation of Sholapur eo nominee in the memo of appeal was accordingly of no consequence. The learned Judge should have, therefore, granted the application for amendment made on behalf of the petitioner. The learned Judge was wrong in rejecting that application for amendment and further making a finding that the appeal of the petitioner was barred by the period of limitation prescribed under Section 74 of the Act.

5. Now, Mr.Shah is possibly right in his submission that the decision of this appeal in favour of the petitioner will not assist the petitioner in any manner for the reason that the scheme has now become entirely final under Section 86 of the Act, but we do not think it appropriate to discuss and determine this question raised by Mr.Shah in the present petition. The matter may be discussed in the appeal of the petitioner before the appellate Tribunal. There will be liberty in the appellate Tribunal to decide this question in accordance with law.

6. In the result, the petitioner succeeds in this petition. The Municipal Corporation of Sholapur will be added as the 2nd respondent in the petitioner's appeal No. 47 of 1967 and the question raised in the petitioner's appeal will be decided by the Tribunal of Appeal on the footing that the appeal was not barred by the Law of Limitation. There will be no order as to costs.

Special Civil Application No. 2520/68.

7. The facts in the special Civil Application No. 2520/68 are in many respects similar to the facts in Special Civil Application No. 2078 of 1968 just disposed of. Even so there is no necessity of setting aside the decision of the Tribunal of Appeal that the appeal of the petitioner was barred by the Law of Limitation. The reason for the above finding is that as is mentioned in paragraph 2 of the petition the petitioner trust was the owner of original plot No. 155 admeasuring 13 square yards situated at Mangalwar Peth, Sholapur. The whole of the plot has been completely acquired by the Municipal Corporation of Sholapur for the purpose of widening of the road. the petitioner's grievance in the appeal filed by it was that the compensation of Rs. 3,159 fixed in respect of this plot of land should have been fixed at Rs. 6,750. We called upon Mr. Sharad Manohar to point out provisions in the Act which entitle the petitioner to file an appeal on the question of the quantum of compensation for wholly acquired plot of land of an owner. Mr.Manohar has stated that there was no right of appeal in the petitioner in the matter of the quantum of compensation under Section 74 of the Act.

8. In the result, the petitioner is not entitled to any relief against the dismissal of his appeal in the present case. Rule is accordingly discharged. There will be no order as to costs.

9. Order accordingly.


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