Solapur Municipal Coarporation v. Shri. Vithal Hanmantsa Gangii (Since Deceased) By His Lrs 1.1. Shri.Dattatraya Vithal Gangji

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3370 OF 1995 Solapur Municipal Corporation ....

Petitioner Indra Bhuwan, Railway Lines, (Ori. Defendant Solapur.

No. 5) Vs.

Vitthal Hanmantsa Gangaji since deceased in the course of the suit represented by the LRs.

1A Shri. Dattatray Vitthal Gangji since deceased, thru' Legal Heirs 1A-1 Smt. Sindhubai Dattatray Gangji Age : 45 years, Occ.: Household 1A-2 Mr. Shrinivas Dattatray Gangji Age : 38 years, Occ. : Business 1A-3 Mr. Shrinivas Dattatray Gangji Age : 36 years, Occ. : Business 1A-4 Smt. Suvarna Anand Bhumkar Age : Adult, Occ.: Household All resident of House No. 589 East Mangalwar Peth, Solapur.

2/6 1B Shri. Chandrakant Vithal Gangji Age : 46 years 1C Shri. Vijay Vithal Gangji Age : 42 years 1D Shri. Arun Vithal Gangji since deceased thru' his Legal Heirs 1D-1 Smt. Shanta Arun Gangji Age : 52 years, Occ.: Household 1D-2 Mr. Anand Arun Gangji Age : 25 years, Occ. : Service 1D-3 Mr. Abhijit Arun Gangji Age : Adult, Occ. : Service All resident of Abhiman Nagar, 2nd Phase 20, Murarji Peth, Solapur Amendment carried out as per Court order dated 18/7/2011 passed in C.A. No. 405 of 2011 1E Shri. Sudarshan Vithal Gangji Age : 38 years, Occ.: Business, Resident of 589, East Mangalwar Peth, Solapur The District Collector, Solapur (State of Maharashtra)

3/6 The Assistant Director of Town Planning, Solapur The Special Land Acquisition Officer, Solapur City, Solapur.

The Commissioner, Municipal Corporation, Solapur ....

Respondents (No. 1 Original Plaintiff. Nos. 2 to 5 Original Defts. 1 to 4) Mr. R.S. Alange for the Petitioner.

Mr. Pankaj Das for Respondent No. 1A-1 to A-4, 1-B, 1-C, 1D-1 to D3 and 1-E. Mr. A.B. Vagyani, Government Pleader a/w Mr. C.P. Yadav, Assistant Government Pleader for Respondent Nos. 2 to 4. Coram : N.M. Jamdar, J.

Date : 8 May 2017 ORAL JUDGMENT :

The Writ petition is placed before the Special Vacation Court to take up the final hearing of the pending old matters. By this petition, the Petitioner-Municipal Corporation has challenged the order passed by the learned District Judge, Solapur

4/6 dated 28 October 1993 disposing of Appeal No. 405 of 1991 filed by the Petitioner-Corporation as abated.

The Respondent No.1 filed a Regular Civil Suit No. 101 of 1978 seeking a declaration that the proceedings taken in respect of acquisition of the suit property are null and void. The suit property is a House No. 589, City Survey No. 360, situated at Solapur. In the suit, the Petitioner-Corporation and the State Government filed their Written Statement and suit was contested. The learned Civil Judge held that the Civil Court had jurisdiction to entertain the suit and held that the land acquisition proceedings in respect of the suit property were bad in law and null and void in view of provisions of Maharashtra Regional Town Planing Act, 1966. Accordingly, the learned Civil Judge, by judgment and decree dated 5 October 1991. Appeal No. 405 of 1991 was filed by the PetitionerCorporation on 20th December 1991.

Notices were issued to the Respondent on that date. After notices were returned with Bailiff's report that the Respondent no.1 has expired, the PetitionerCorporation moved an application below Exhibit 14 on 17 June 1992, which has been rejected by the learned District Judge by the impugned order dated 20 October 1993, consequently dismissing the Appeal.

5/6 I have heard Mr. R.S. Alange, the learned counsel for the Petitioner, Mr. Pankaj Das, the learned counsel for Respondent no.1 and Mr. A.B. Vagyani, the learned Government Pleader for Respondent no.2, State.

Mr. Alange, the learned counsel for the Petitioner submitted that the impugned order is perverse and the learned District Judge has not exercised the jurisdiction and discretion properly. Mr. Das, the learned counsel for Respondent no.1 supported the impugned order stating that there is no reason given for delay nor there is any specific prayer.

The suit filed by Respondent no.1 was decreed and acquisition proceedings initiated for the purpose of road widening, were set aside. Pursuant to this public interest that the PetitionerCorporation filed a First Appeal. After the notice issued in the appeal, was returned with Bailiff report and thereafter when enquiries were made, the Petitioner-Corporation came to know about the details of heirs of Respondent no.1. The learned District Judge, by a cryptic order did not allow the Petitioner to bring the heirs of Respondent no.1 on record and refused to condone the delay, thereby dismissing the appeal in its entirety. Code of Civil Procedure places an obligation on the Pleader to inform the death of a party to the other side. As it

6/6 discernible from the impugned order, there is no such communication by Respondent no.1. This reason has been stated in the application, which ought to have been sufficient by the learned District Judge as stated earlier. The learned Judge also did not explore the option of imposition of costs. The approach taken is perverse. In these circumstances, the petition deserved to be allowed and the Appeal filed by the Petitioner is required to be restored. Accordingly, rule is made absolute in terms of prayer clause (b). Appeal No. 405 of 1991 stands restored to file to the District Judge, Solapur. The learned District Judge will make an endeavour to dispose of the Appeal within a period of one year from the date writ of this order reaches. All contentions on merits of the parties are kept open. Parties to appear before the learned District Judge on 15 June 2017. No order as to costs.

( N.M. Jamdar, J.)