1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1400 OF 1994 1. Khaja Viqaruddin S/o Syed Hussain Age : 48 Yrs., Occ. : Govt. service R/o : Baijipura, Aurangabad. 2. Khaja Bashiruddin S/o Syed Hussain Age : 50 Yrs., Occ. : service R/o : Nabi Khan, Paithan, Tq. Paithan, Dist. : Aurangabad. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through Collector, Aurangabad. 2. The Municipal Council Paithan, through its Chief Officer. .... RESPONDENTS Mr. K.G.Khader, Advocate for petitioner. Mr. M.D.Joshi, Advocate for respondent no. 2. Mr. N.B.Patil, Assistant Govt. Pleader for State. CORAM : B.R.GAVAI & S.V.GANGAPURWALA, JJ. DATE : 30/6/2010 ORAL JUDGMENT : [ PER - B.R. GAVAI, J. ] 1. By way of present petition, the petitioner claims that he should be awarded compensation at the market value of the land, which land 2 according to the petitioner, has been taken in possession by the Municipal Council, Paithan for widening of the road. 2. According to the petitioner, the petitioner owns land S.No. 325 at Paithan. It is the case of the petitioner that the said land was taken in possession by the Municipal Council for widening of the road without paying any compensation. As such, correspondence was made and the Municipal Council has in fact assured the petitioner that he will be given compensation for the land in question. 3. The position is seriously disputed by the learned counsel for the respondent no. 2 as well as the State. It is the specific stand of the Municipal Council that in the year 1972, since there was scarcity in the State of Maharashtra, under Employment Guarantee Scheme, various projects were undertaken for providing employment to the citizens. According to the respondents, the lands in question were given by the respective land owners for implementation of the said scheme and the road in question was constructed in the year 1972. It is the contention of the respondent that in the year 1992, only strengthening of the road was done and no new road was constructed. 4. From the perusal of record, it is revealed that the respondent 3 Municipal Council has also taken a stand that the petitioner has in fact encroached upon the site which was reserved for the road and has seriously disputed the claim of the petitioner regarding entitlement of any compensation. 5. The Apex Court in the case of D.L.F. Housing Construction ( P ) Ltd. V/s Delhi Municipal Corporation and others reported in AIR 1976 – Supreme Court - 386 has observed that, : “ In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course of the High Court to follow was to dismiss the Writ Petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit ” . 6. In the said case, the High Court had embarked upon an enquiry, where disputed question of fact were involved and had 4 adjudicated thereon. The said Judgment of the High Court was reversed by the Apex Court on the ground that it was not permissible for the High Court to do so. The factual basis is the same in the present matter also. The petitioner may have good case on merits, but there is nothing on record to show that there is admission either by the Municipal Council or the State that for widening of the road in the year 1992, the land of the petitioner was acquired, nor there is an admission that the council is liable to pay the compensation. In this back-ground, petition involves serious question of fact, which can not be adjudicated in the summary enquiry that is permissible under Article 226 of the Constitution of India. The petition is dismissed on this ground alone. The petitioner would be at liberty to take such steps as are advised and as are permissible in law. Rule is discharged. 5. In view of disposal of Writ Petition, nothing survives in Civil Application No. 3708 of 1998 . It is accordingly disposed of. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/WP 1400.94