MOHAN GOPAL CHAVAN Vs. T R KULKARNI
LAWS(BOM)-1972-1-3
HIGH COURT OF BOMBAY
Decided on January 12,1972

MOHAN GOPAL CHAVAN Appellant
VERSUS
T.R.KULKARNI Respondents

JUDGEMENT

- (1.) THE petitioner's Appeal No. 47 of 1967 under Section 74 of the Maharashtra Regional and Town Planning Act, 1966, was dismissed by the District Judge, Sholapur, being the Tribunal of appeal under the above Act by the judgment and order dated June 28, 1968, which is a common judgment in the matter of Town Planning Appeals Nos. 1 to 113 of 1967. The learned Judge held that in the petitioner's Appeal No. 47 of 1967 as also in about other 10 appeals before him the Municipal Corporation of Sholapur had not been made a party respondent. In five of these appeals, at the time of the first hearing of the appeals, an objection was raised on June 4, 1968, that the Municipal Corporation was necessary party respondent for the purposes of these appeals. In view of that contention, the petitioner applied on June 5, 1968, that the memo of appeal should be allowed to be amended by showing the Municipal Corporation as the 2nd respondent, the first respondent being the Town Planning Officer, Sholapur. The learned Judge rejected that application for amendment by his order dated June 5, 1968. In connection with rejection of the application, the learned Judge called upon the Advocate of the Municipal Corporation who was present for the hearing of all the other appeals before the learned Judge to show cause why the amendment should not be allowed. Having regard to the arguments advanced by the Advocate for the Corporation, the application was rejected. The appeal was then finally heard along with all the above other appeals and for the reasons mentioned in paragraph 27 of the common judgment delivered in the appeals, the learned Judge dismissed the Appeal No. 47 of 1967 of the present petitioner. The learned Judge stated that the appeal was filed on 1st February, 1967. The period of limitation prescribed under Section 74 (1) of the Act was two months from the date of the communication of the Arbitrator's (Town Planning Officer) decision to the appellant. The learned Judge held that the period of limitation commenced to run from January 5, 1967, and that the appeal should have been filed in any event having regard to the coming into force of the above Act of 1966 before the end of April 1967. The application for amendment of the memo of appeal by addition of the Corporation as 2nd respondent was made on June 5, 1968, much beyond the period prescribed for filing an appeal against the Corporation. He held that the delay was of one year and two months and there was no sufficient ground for condoning delay. For this reason, he dismissed the appeal.
(2.) THE above decision of the learned Judge is challenged before us by Mr. Sharad Manohar on behalf fo the petitioner on diverse grounds. He submitted that appeals by third parties citizens under Section 74 of the Act must in all cases by against the Municipal Corporation concerned and not against any other parties at all. The result of this position was that the Municipal Corporation need not be mentioned in the memo of appeal as a party respondent. The default in not mentioning the Municipal Corporation was for the above reason of no consequence at all. Each and all the parties including the learned Judge were aware that the appeal was only against the Municipal Corporation of Sholapur and against no one else. The learned Judge should have, therefore, held that the default in mentioning the name of the Municipal Corporation as a respondent in the memo of appeal was of no consequence. The learned Judge's finding that the appeal was time barred against the Corporation was accordingly incorrect. He further submitted that it was the duty of the appellate Tribunal to take notice of the statutory provisions of the above Act and come to the above finding. In connection with his submissions, he referred to the provisions in Order 1, Rule 10 of the Code of Civil Procedure and Sections 21 and 29 (2) of the Indian Limitation Act, 1963.
(3.) MR. Shah for the respondent No. 2 has submitted that we should not accept these submissions made by Mr. Manohar. In his submission, having regard to the expiry of time, the scheme as finally settled by the above appellate order has become final scheme and the disposal of the petitioner's appeal even by decision made in favour of the petitioner will not be sufficient to affect the finality of the scheme. He has in that connection relied upon the provisions in Section 86 of the Act. Mr. Manohar has in reply relied upon the provisions in Section 91 of the Act which enable the Planning Authority to correct irregularities in the scheme.;


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