1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 168 OF 2004 Kalyan Municipal Corporation : Appellant. Versus Shri Surendra Prabhakar Karnik : Respondent. Shri.A.S.Rao for the Appellant. Shri.R.G.Ketkar for the Respondent. CORAM : R.M.SAVANT, J DATED : AUGUST 21, 2008 P.C. 1. The above Second Appeal takes exception to the Judgment and Decree dated 3.10.2003 passed by the learned IInd Additional District Judge, Kalyan by which the Judgment and Decree dated 27.1.2000 passed by the trial Court i.e. the learned Joint Civil Judge, Junior Division, Kalyan came to be confirmed. 2. The dispute involved in the above Second Appeal is as 2 regards the acquisition of the Respondent's compound wall and the septic tanks situated in the compound of the Respondent's property for road widening. The area required for the road widening, according to the Appellant/Corporation is 180 sq.mtrs. The Respondent herein , apprehending that the his compound wall would be demolished by the Appellant/Corporation for the purpose of road widening, filed R.C.S.No.775 of 1992. It was the case of the Respondent/Plaintiff in the said suit that he is the owner of SurveyNo.71, city survey No.302 2/1 and that he has developed the said property by obtaining necessary permission from the Appellant/Corporation. It is the case of the Plaintiff that whilst obtaining the development permission on 18.9.1987, he had left the area of 180 sq.mtrs for road widening as the same was contemplated in the final development plan of the year 1980 of the Appellant/Corporation. It is the case of the Plaintiff that the said area of 180 sq.mtrs, which was left apart whilst carrying out the development pursuant to the plan sanctioned on 18.9.1987, utilized by the Appellant/Corporation and a garbage bin has been constructed on the same. Apprehending that the compound wall would be demolished by the Appellant/Corporation for the purpose of 3 road widening that the said suit came to be filed by the Plaintiff. 3. The Appellant/Corporation, which was the defendant in the said suit, filed its written statement and principally relied upon the undertaking dated 27.7.1987 purportedly given by the Plaintiff that he would hand over 180 sq.mtrs to the Appellant/Corporation for the purpose of road widening as contemplated in the final development plan. It is the case of the Appellant/Corporation in the said written statement that the alignment is now finalised and a regular line of street as contemplated under the provisions of B.P.M.C. Act, 1949 has been drawn. As per the said alignment the compound wall of the Plaintiff falls within the said alignment. 4. The parties went to trial. On the basis of the evidence that was before the trial Court, the trial Court came to a conclusion that the Appellant/Corporation wanted to acquire the property of the Plaintiff without following due process of law. The trial Court was of the view that if the Appellant/Corporation was desirous of changing the alignment of the road it ought to have given notices to the concerned parties including the Plaintiff/Respondent above named and, having not done so, there was no compliance of the provisions of the 4 B.P.M.C. Act, 1949 and the M.R.T.P Act, 1966. In so far as other objection of the Appellant/Corporation as regards maintainability of the suit on account of non-compliance of Section 487 of the B.P.M.C. Act is concerned, the trial Court ruled in favour of the Plaintiff and held that the suit was maintainable. The trial Court, therefore, decreed the said suit filed by the Plaintiff and granted injunction. However, the injunction granted in favour of the Plaintiff is qualified by observing that the Appellant/Corporation would follow the due process of law before acquiring the Plaintiff's compound wall. 5. Aggrieved by the Judgment and Order dated 27.1.2000 passed by the trial Court, the Appellant/Corporation filed R.C.A. No.17 of 2001 in the Court of II Additional District Judge, Kalyan. The Lower Appellate Court, by its Judgment and Order dated 3.10.2003 confirmed the decree passed by the trial Court. The Lower Appellate Court also reiterated the finding of the trial Court as regards the undertaking and held that the Appellant/Corporation ought to have followed the due process of law in case it wants to acquire the properties which are affected by change of alignment. 6. Both the Courts below have, therefore, concurrently held 5 that the Appellant/Corporation had failed to substantiate its case in respect of the alleged undertaking given by the Plaintiff. 7. It is sought to be contended on behalf of the Appellant/Corporation that there is no change of alignment and what is sought to be acquired is what has been agreed by the Plaintiff whilst obtaining commencement certificate for carrying out the development in the property in question. It is contended that in view of the said undertaking, the finding of both the Courts below that the Appellant/Corporation should follow the due process of law before acquiring the Plaintiff's property is unwarranted and unjustified. 8. Per contra it is contended by the learned counsel for the Plaintiff/Respondent that 180 sq.mtrs which was required for the purpose of road widening has already been handed over to the Appellant/Corporation and on which the Appellant/Corporation has constructed a garbage bin. In support of the said submission, the learned counsel for the Respondent submitted that the Respondent would not have been given completion certificate by the Appellant/Corporation unless he had handed over the said 180 6 sq.mtrs. The fact that the compliance certificate has been granted by the Appellant/Corporation falsifies the case of the Appellant/Corporation that the said area of 180 sq.mtrs is still to be handed over. It is further submitted on behalf of the Respondent that the Appellant/Corporation after taking possession of the said area of 180 sq.mtrs. has now changed the alignment of the road in question probably keeping in line with the revised development plan of the area. It is therefore submitted on behalf of the Respondent that the finding of both the Courts below that the Appellant/Corporation had to follow the due process of law before acquiring the property of the plaintiff cannot be faulted with. 9. As indicated above, both the Courts below have concurrently held against the Appellant/Corporation and have recorded a finding that the Appellant/Corporation has failed to substantiate its case as regards the undertaking allegedly furnished by the Plaintiff/Respondent. Both the Courts below have also held that the Appellant/Corporation has to follow the due process of law and acquire the Plaintiff's compound wall. 10. In my view, the challenge raised in the above Second 7 Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. However, it is made clear that it would be open for the Appellant/Corporation to follow the due process of law and acquire the Plaintiff's property which is required for the purpose of the proposed road widening. [R.M.SAVANT, J]