Bombay High Court
Solapur Municipal Coarporation vs Shri. Vithal Hanmantsa Gangii ... on 8 May, 2017
Bench: N.M. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELL ATE JURISDICTION
WRIT PETITION NO.3370 OF 1995
Solapur Municipal Corporation .... Petitioner
Indra Bhuwan, Railway Lines, (Ori. Defendant
Solapur. No. 5)
Vs.
1 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.
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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
2 The District Collector, Solapur
(State of Maharashtra)
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3 The Assistant Director of Town
Planning, Solapur
4 The Special Land Acquisition Officer,
Solapur City, Solapur.
5 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 D-
3 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.
2 By this petition, the Petitioner-Municipal Corporation has
challenged the order passed by the learned District Judge, Solapur
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dated 28 October 1993 disposing of Appeal No. 405 of 1991 filed by
the Petitioner-Corporation as abated.
3 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.
4 Appeal No. 405 of 1991 was filed by the Petitioner-
Corporation 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 Petitioner-
Corporation 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.
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5 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.
6 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.
7 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 Petitioner-
Corporation 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
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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.
8 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.)
