PUNE MUNICIPAL CORPORATION Vs. HAZARAT KHAWAJA SHAIKH SALLALUDDIN CHISTI ALIAS DHAHTA SHAIKH SALLA DARGA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution raises a question as to the interpretation of the Bombay Provincial Municipal Corporation Act, 1949, hereinafter referred to as "the Act". The petitioner is the Pune Municipal Corporation while the respondents are the owners of a property, part of which has been acquired by the Municipal Corporation under circumstances mentioned in section 213 of the Act. Section 213 of the Act provides that the Municipal Commissioner may, after giving to the owner of the land or building not less than seven clear days written notice of his intention to do so, take possession, on behalf of the Corporation of the said land with its enclosing wall, hedge or fence, if any, if such land is within the regular line of a public street. This is broadly called the process of straightening the contours of a road in a city. Provision has been made for payment of compensation under section 216 of the Act for any loss which is thus suffered by the owner of a building or land. Before we proceed to examine the relevant provisions of the Act and the contentions raised on behalf of the parties appearing before us, we may briefly indicate the circumstances in which this petition has been filed.

(2.) For the construction of a new bridge on river Mutha for the purpose of joining two areas known as Kasba Peth and Shivajinagar in Pune City, open land measuring 1619, 125 square feet belonging to the respondents was taken over by the Municipal Commissioner of Pune after following the procedure prescribed under section 213 of the Act. The Commissioner awarded what he regarded as the compensation to the respondents and this compensation amounted to Rs. 12,034.75 p. This consisted of cost of the land at the rate of Rs. 6 per square foot, cost of the structure at Rs. 750 and solatium at the rate of 15 per cent. The respondents preferred an appeal under section 391 of the Act to the Judge of the Court of Small Cause and in that appeal the Small Causes Court Judge enhanced the compensation to Rs 29,949.42 p., though the respondents had claimed even much higher compensation. The award passed by the Court of Small Causes is of 10th August, 1978 and is the subject-matter of challenge in this petition.

(3.) The petition as originally filed challenging the amount of compensation determined by the Court of Small Causes had contended that there was no basis for the award of the enhanced compensation made by the Small Causes Court. At the time of the hearing of this petition before us, an additional ground has been urged by the learned Advocate-General appearing in support of the petition and it is that under section 216 of the Act compensation in the manner in which compensation is awarded under the Land Acquisition Act cannot be awarded to any person who is deprived of his property under section 213 of the Act. Relying upon a judgment of a Division Bench of this Court in (Special Civil Application No. 999 of 1973 (with others) decided on 13th of December 1978) by Shah, J. (with Pendse J.), the learned Advocate-General also contended that in that judgment the award of compensation at one-third of the market value of the land acquired has been upheld by this Court and, therefore, that could be regarded as a reasonable compensation for the loss suffered by the owner of a property under section 216 of the Act. He has, therefore, proceeded to contend that the compensation awarded by the Court of Small Causes on the basis of the market value of the property is totally wrong and erroneous and deserves to be set aside. On the other hand, Mr. Naik, the learned Advocate appearing for the respondents, has contended that the Small Causes Court has determined the amount of compensation and that amount can be regarded as a measure of the loss suffered by the respondents and this Court in exercise of its jurisdiction under Article 226 of the Constitution need not interfere with the same.