1. The petitioners have challenged a resolution no.22 adopted by the respondent Surat Municipal Corporation (“SMC” for short) in its general body meeting dated 29.4.1999. By the impugned resolution, the Corporation decided to lay out public streets at various places in terms of section 205 of the Bombay Provincial Municipal Corporations Act, 1949 (“BPMC Act” for short), one of them being Matawadi road passing through the wadi of Mohanbhai Kudnavawala and connecting the road of Rang Avdhut. Though from such description, immediately, the position of the proposed road is not clear, counsel for the petitioners drew my attention to the map at page- 11, Annexure-A to point out that such public street would pass through the existing residential locality where the petitioners have their houses so constructed on the plots owned by them.
2. Counsel for the petitioners raised following contentions against such notification :
1) That the final town planning scheme had already been sanctioned. If the Corporation desired to lay down any further streets, same could not be done without varying the scheme.
2) Drawing my attention to section 205 of the BPMC Act, he contended that any such laying of public street had to be with the agreement of the owners of the land.
3) No procedure was followed before the resolution was passed. The petitioners were not given any hearing. Their objections were not taken into account.
4) The authorities failed to consider whether such public street was necessary and likely damage or inconvenience which may cause to the residence of the locality.
5) Counsel submitted that such proposal was mooted way back in April 1999. After 10 years at this stage the authorities would have to freshly decide whether such a public street is required.
6) Counsel lastly contended that in any case, public streets could not be laid out without acquiring the land.
3. On the other hand, Shri Mrugen Purohit for the respondent corporation opposed the petition contending that the Corporation had the power under the BPMC Act particularly, under section 205 of the said Act, to lay out any public street. He drew my attention to the provisions of the section 209 and 210 in support of his contention.
4. Section 205 of the BPMC Act pertains to power to make new public streets and reads as under :
“205. The Commissioner, when authorised by the Corporation in this behalf, may at any time-
(a) lay out and make a new public street;
(b) agree with any person for the making of a street for public use through the land of such person, either entirely at the expense of such person or partly at the expense of such person and partly at the expense of the Corporation and that such street shall become, on completion, public street, which shall vest in the Corporation;
(c) construct bridges any sub-ways;
(d) divert or turn an existing public street vested in the Corporation a portion thereof Section 209 pertains to power to acquire the premises for improvement of public streets and reads as under :
“209. Power to acquire premises for improvement of public streets.
(1) The Commissioner may, subject to the provisions of sections 77, 78 and 79-
(a) acquire any land required for the purpose of opening, widening, extending, diverting or otherwise improving any public street, bridge or sub-way or of making any new public street, bridge or sub-way and the buildings, if any, standing upon such land;
(b) acquire in addition to the said land and the buildings, if any, standing thereupon, all such land with the buildings, if any, standing thereupon, as it shall seem expedient for the Corporation to acquire outside of the regular line, or of the intended regular line, of such street;
(c) lease, sell or otherwise dispose of any land or building purchased under clause(b)
(2) The acquisition of land for providing, extending or improving a place for the parking of vehicles shall be deemed to be acquisition of land for the purpose of providing, extending or improving a public street.
(3) Any convenience of land or a building under clause(c) of sub-section(1) may comprise such conditions as the Commissioner thinks fit, as to the removal of the existing building, the description of new building to be errected, the period within such new building shall be completed and other such matters.”
Section 210 pertains to power to prescribe street lines. Sub-section(1) thereof authorises the Commissioner to prescribe the line on one or both the sides of any public street and from time to time, subject to approval of the Standing Committee, prescribe a fresh line in substitution for any line so prescribed or for any part thereof.
5. From the perusal of the section 205 of the BPMC Act, it emerges that clause(a) thereof provides that the Commissioner when authorised by the Corporation may lay out and make a new public street. Clause(b) however, envisages that the Commissioner may agree with any person for making of a street for public use through the land of such person, either entirely at the expense of such person or partly at the expense of such person and partly at the expense of corporation and that such street shall become, on completion, public street which shall vest in the Corporation.
6. Two modes in which under section 205, the Commissioner could lay out a public street would be either in clause(a) or in clause(b). Clause(b) in particular, pertains to laying down such a street with the agreement of a person through whose land such street is laid down. In the present case, the proposed road would pass through the land of the present petitioners. Under clause(b) of section 205 thereof the Commissioner had to obtain their agreement. This in the present case, is admittedly not done.
7. It may be open for the Commissioner to lay down such a new public street in terms of clause(a) of section 205 of the BPMC Act even without agreement. However, the same not being on agreement, in my opinion, it could not be done without the Commissioner resorting to the procedure for acquiring the said lands provided under section 209 of the BPMC Act. In the present case, no such steps have been initiated.
8. Learned Single Judge of this Court in his judgement dated 27.11.2006 in Special Civil Application No.12363/2006 and connected petitions had opined as under :
“8. It is an admitted position that the Corporation has exercised the power for laying down of the new public street under Section 205 of the Act. It is true that as per Section 205 of the Act, there are enabling powers with the Corporation to lay out and make a new public street. Section 209 of the Act provides for the power to acquire premises for the improvement of the public streets which includes the acquisition of the land required for opening, widening, extending, diverting or otherwise improving any public street, bridge or sub-way or of making any new public street, if any, standing upon such land. It also provides for the acquisition of the additional land and building. The word `premises' is defined as per Section 2(46) of the Act and the definition is inclusive and it also includes the land of any tenure whether open or enclosed. Therefore, on conjoint reading of Section 205 read with section 209 of the Act, it appears that for laying down of new public street by the Corporation, the procedure is required to be followed by the Commissioner subject to the provisions of Sections 77, 78 and 79 of the Act. Section 77 provides for acquisition of immovable property which would of course include the land but the manner of acquisition is by agreement on such terms and at such rates or prices not extending to maximum as approved by the Standing Committee of the Corporation. Section 78 of the Act provides for acquisition by following the provisions of Land Acquisition Act, 1894 in the event the Commissioner is unable to acquire the land by agreement as per Section 77 of the Act. Therefore, it is apparent that even if the Corporation is having enabling power under Section 205 of the Act for laying down of a new public street, it is required for the Corporation to acquire the land of the public street either by agreement as per Section 77 of the Act or in alternative by following the procedure through the State Government under the Land Acquisition Act as per Section 78 of the Act. Until the procedure is followed either under Section 77 or Section 78 of the Act, the land cannot be said as as having vested to the Corporation for making it available as public street for its utilization of general public. It is only after the procedure is followed under Section 77 or Section 78 of the Act, as the case may be, the land would vest to the Corporation and, thereafter, the Corporation may make it available to the public at large being a new public street. In the present case, as no procedure under Section 77 or 78 of the Act is followed, the action of the Corporation calling upon the petitioners societies to surrender the land and/or remove the compound wall over the said land can be said as without following the mandatory procedure as required under the Act and, therefore, such action cannot be sustained in eye of law at this stage.”
9. In the result, the petition succeeds. Impugned resolution No.22 adopted by the respondent Surat Municipal Corporation (“SMC” for short) in its general body meeting dated 29.4.1999 is quashed. Petition is disposed of. Rule made absolute.
(Akil Kureshi,J.) (raghu)