JAYANT PATEL, J. ( 1 ) THE short facts of the present case are that the petitioners were the owners of the land and building situated at Ward 12 in Surat city bearing Nodh No. 310. The Surat Municipal Corporation wanted the area of 69. 0984 Sq. Mtrs for the purpose of road widening and for the said purpose on 11. 9. 95 a notice was issued under section 212 of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as "the Act") for handing over the possession by the petitioners and it was also stated in the said notice that if the possession was not handed over action shall be taken for demolition of construction which would fall inside the road-line. It is the case of the petitioners that the petitioners have already handed over the said land admeasuring 52. 36 Sq. Mtrs (hereinafter referred to as "block A") which is open to sky and the petitioners further case is that the balance area of 16. 72 Sq. Mtrs (hereinafter referred to as "block B") is also handed over. However, the said area of 16. 72 Sq. Mtrs is not open to sky, but it is handed over by removing the construction at the groundlevel and there is existing construction at the first floor level. The case of the petitioners is that for the adjacent area of the land, the compensation is fixed at Rs. 11,236. 00 per Sq. Mtr by the Corporation and therefore when the possession of whole area of 69. 0984 Sq. Mtrs is already handed over, the corporation is illegally not proceeding further for the purpose of determining the compensation. It is the further case of the petitioners that out of the area of land admeasuring 16. 72 Sq. Mtrs, the land admeasuring 1. 914 Sq. Mtrs was given to the petitioners on lease by the corporation itself for the purpose of construction of pillars in the year 1998-99 and the petitioners are paying rent regularly and since the land was given to the petitioners they have constructed pillars over the land admeasuring 1. 914 Sq. Mtrs which are below the construction at the first floor level and the back side area of the pillars, i. e. about 15 Sq. Mtrs is being used for the purpose of foot path by the padestrians. 914 Sq. Mtrs which are below the construction at the first floor level and the back side area of the pillars, i. e. about 15 Sq. Mtrs is being used for the purpose of foot path by the padestrians. The further case of the petitioners is that as per the notice dated 20. 5. 2000 the petitioners were called upon to make submissions for finalising the amount of compensation and as per the petitioners the average cost of the land was assessed by the Deputy Town Planner at Rs. 11,236. 00per Sq. Mtr. However, the case of the petitioners is that the corporation, instead of fixing the amount of compensation for the land in question totally admeasuring 69. 984 Sq. Mtrs, by issuing letters dated 29. 8. 2000 and 1. 11. 2000 intimated that the construction over the land has gone in road line and action for fixing the amount of compensation can be undertaken only after the construction is completely removed. The said action of the corporation not to make payment of compensation until the construction is removed is under challenge in this petition. ( 2 ) MR. SANJANWALA submitted that the possession of the whole area comprising of Blocks A and B is already handed over a long back and out of Block B corporation of its own, as per resolution dated 3. 12. 1998 has taken decision of giving the area of 1. 919 Sq. Mtrs on rent at the rate of Rs. 3882. 00per year for the period of 5 years and he submitted that since the land was given to the petitioners on lease basis for a period of five years pillars have been constructed by the petitioners. Mr. Sanjanwala submitted that the petitioners are regularly paying the rent and therefore until the expiry of five years the petitioners can not be compelled to remove the pillars. Mr. Sanjanwala submitted that since even in the Block B area below the pillars was already handed over and the foot path is constructed by the corporation and the said area is also used as foot path by the padestrians and therefore he submitted that the ground raised by the corporation that until the possession of the land is handed over or until the pillars are removed, process will not be undertaken for finalising the amount of compensation, is illegal, unauthorised and unconstitutional. Mr. Mr. Sanjanwala alternatively submitted that in any case the respondent corporation in the affidavit in reply on page 75 has admitted that the petitioners have handed over the possession of 52. 36 Sq. Mtrs of land to the corporation, hence the corporation is required to make the payment of compensation for 52. 36 Sq. Mtrs of land. He submitted that no amount of compensation is paid by the corporation though the land of the petitioners is already taken away and hence Mr. Sanjanwala submitted that in any case the petitioners would be entitled to compensation for the land of 52. 36 Sq. Mtrs without prejudice to their rights to pursue the matter for the area of land admeasuring 16. 72 Sq. Mtrs, i. e. block B. ( 3 ) ON behalf of the respondent corporation Mr. P. G. Desai has contended that as per the Scheme of the Act, when any public road is being widened the land can be requisitioned or acquired by the local authority. However, he submitted that when the land is to be surrendered by any owner, whole area is required to be surrendered at a time and if it is not surrendered the compensation can not be determined. He submitted that since the compensation is to be determined as per the scheme of the Act at the time when the possession is taken and since the possession of the whole area of 69. 984 Sq. Mtrs comprising of blocks A and B is not handed over, the corporation can not ascertain the amount of compensation since the relevant date would be the date on which the possession is handed over. Hence, he submitted that the corporation is justified in not proceeding with the fixation of amount of compensation. Mr. Desai also submitted that in the present case no compensation whatsoever is fixed and therefore there is no question of the petitioners being entitled to a particular amount by way of compensation. Mr. Desai has relied on the judgment of the Apex Court in the matter of The Municipal Corporation of the City of Ahmedabad vs The State of Gujarat reported in AIR 1972 SC 1730 to contend that the value or the compensation is to be fixed on the date when the possession is handed over and therefore Mr. Mr. Desai has relied on the judgment of the Apex Court in the matter of The Municipal Corporation of the City of Ahmedabad vs The State of Gujarat reported in AIR 1972 SC 1730 to contend that the value or the compensation is to be fixed on the date when the possession is handed over and therefore Mr. Desai submitted that since the possession of full area is not handed over the compensation can not be fixed and under the circumstances the corporation is justified in declining to proceed with the assessment or payment of compensation since the possession of the land is not handed over. ( 4 ) IT is true that as per the provisions of the Act, when any land is required for the purpose of widening of the road, the corporation has the power to acquire the land. However, at the same time, when any land is acquired it is the duty of the corporation to assess the compensation and make payment thereof. In the present case, perusal of the record shows that the total area of land admeasuring 69. 984 Sq. Mtrs was required by the corporation for the purpose of road widening in accordance with section 212 (1) (A) of the Act. However, said block of 69. 984 Sq. Mtrs of land could be demarcated into two parts, namely, land open to sky and the land over which there was construction. The land open to sky was belonging to the petitioners as referred to above is admeasuring 52. 36 Sq. mtrs which is referred to as Block A. There is no dispute on the point that the said area of Block A admeasuring 52. 36 Sq. Mtrs which is open to sky is already handed over to the corporation by the petitioner. However, so far as the other portion admeasuring 16. 72 Sq. Mtrs is concerned it appears that on the date of notice there was construction of shops at the groundlevel, first and second floors. With a view to see that the immediate requirement of the corporation is meted with, the groundlevel space was made vacant by the petitioners, but it appears that since the construction at the first floor level may not collapse on account of demolition at the groundlevel, the pillars were required to be constructed for the purpose of giving support to the construction at the first and second floors. Since the pillars can be constructed, it appears that the corporation had given the land below the pillars admeasuring 1. 919 Sq. Mtrs so that the pillars can be allowed to remain and the back side area of the pillars forming part of Block B can be used for the purpose of construction of foot path. There is no dispute on the point that foot path is constructed by the corporation and it is used for the purpose of foot path by the padestrians. However, the stand of the corporation is that the said arrangement of construction of foot path was only by way of temporary measure and since now they need the land as open to sky admeasuring 16. 72 Sq. Mtrs only the pillars are required to be demolished and the said land admeasuring 16. 72 Sq. Mtrs must be handed over as open to sky and consequently the construction above the foot path on first and second floors level is also required to be demolished. It appears that the stand of the corporation is that since the land of Block B admeasuring 16. 72 Sq. Mtrs is not fully handed over by making it open to sky it can not be said that the petitioners have handed over the possession of land admeasuring 16. 72 Sq. Mtrs and therefore the compensation can not be determined and no payment of compensation can be made. ( 5 ) THE stand taken by the corporation for not fixing the compensation and for not paying the compensation for the whole area of 69. 984 Sq. Mtrs comprising of Blocks A and B, in my view, is unreasonable. When the corporation has already taken over the possession of land admeasuring 52. 36 Sq. Mtrs forming part of Block A and when the corporation has already widened the road to that extent it can be said that the possession of the said land of block A is already taken over and is also used for the purpose of road widening. When the said land of Block A is already taken over, the petitioner is deprived of the said property and there is no lawful justification on the part of the corporation for not fixing the compensation and for not paying the amount of compensation to the petitioner. When the said land of Block A is already taken over, the petitioner is deprived of the said property and there is no lawful justification on the part of the corporation for not fixing the compensation and for not paying the amount of compensation to the petitioner. However, at the most, the corporation could be justified in withholding the process of fixing the compensation for the land admeasuring 16. 72 Sq. Mtrs out of Block B. ( 6 ) IT is true that the compensation is required to be fixed under the provisions of the Act at the time when the possession of the land in question is handed over by the owner of the land to the local authority, but merely because initially demand was made for handing over the possession of the total land admeasuring 69. 984 Sq. Mtrs, it can not be said that no compensation whatsoever can neither be determined nor the payment thereof can be made because some portion is not handed over or a dispute is raised for complete handing over with the said balance portion. When the corporation has of its own admitted that the possession of land admeasuring 52. 36 Sq. Mtrs (forming part of Block A) is handed over and when there is no dispute on the point that the said area of land is used for the purpose of road widening, the fact remains that the owner of the said land who are the petitioners herein are deprived of the said portion of the property and therefore they would be entitled to compensation in accordance with law. A perusal of the map produced at page 100 clearly shows that the location of the land admeasuring 52. 36 Sq. Mtrs can be treated as an independent one though it may be adjoining to the balance portion of 16. 72 Sq. mtrs (forming part of Block B ). In a given case, on account of non-delivery of the land or portion thereof, if the utilisation of the balance land is not possible, probably the Corporation may be justified in not assessing or paying any compensation. However, same is not the case here. In the present case, the land admeasuring 52. 36 Sq. Mtrs (forming part of Block A) is already utilised by the Corporation for the purpose of road widening and the road is developed on the same. However, same is not the case here. In the present case, the land admeasuring 52. 36 Sq. Mtrs (forming part of Block A) is already utilised by the Corporation for the purpose of road widening and the road is developed on the same. Therefore, in that view of the matter it can not be said that the corporation is justified in withholding the process of fixing the compensation and/or paying the amount of compensation in accordance with law. ( 7 ) SO far as the land admeasuring 16. 72 Sq. Mtrs (forming part of Block B) is concerned, the stand of the petitioners is that the land below the pillars admeasuring 1. 919 Sq. Mtrs is given on rented basis by the corporation itself and out of the total area of 16. 72 Sq. Mtrs there are pillars over the land admeasuring 1. 919 Sq. Mtrs only and the balance thereof which would be around 14/15 Sq. Mtrs is already handed over and the area thereof is also used for the purpose of foot path by the padestrians and therefore it can not be said that the petitioners have not handed over the same. The contention, primafacie, appears to be attractive, but on close scrutiny, it transpires that on account of construction of pillars, there is no complete or full utilisation of the land even for the purpose of foot path. That apart, in any case, it is the admitted position that the land admeasuring 16. 72 Sq. Mtrs (forming part of Block B) or even the land excluding the foot path from the said block is not made available to the corporation as open to sky. There is construction of the first and second floors level below the said portion of the land and, as a matter of fact, the construction on the first and second floor level is supported with the pillars constructed over the land admeasuring 1. 919 Sq. Mtrs. It is true that so far as the ground level is concerned, the land admeasuring 16. 72 Sq. Mtrs was parted with by the petitioners and thereafter the area admeasuring 1. 919 Sq. 919 Sq. Mtrs. It is true that so far as the ground level is concerned, the land admeasuring 16. 72 Sq. Mtrs was parted with by the petitioners and thereafter the area admeasuring 1. 919 Sq. Mtrs was given by the corporation to the petitioners on lease basis for a period of five years, but that does not mean that the petitioners would not be required to hand over the possession of the land as open to sky nor it can be said that the petitioners would be entitled to compensation for the said portion of the land forming part block B at par with the valuation made of the land which is required for road widening and which is surrendered as open to sky. Whether the corporation requires the land only at the ground floor level for the purpose of foot path or the corporation requires the land as open to sky are the facts on which the decision is required to be taken by the corporation as authority under the Act. However, Mr. Desai has made a statement at the Bar that the corporation requires the land of even Block B as open to sky. Whereas Mr. Sanjanwala appearing for the petitioners has submitted that had the corporation required the land as open to sky or had there been no intention to allow the construction on first and second floor level to remain in existence, the corporation would not have given the land admeasuring 1. 919 Sq. Mtrs for the purpose of construction of pillars with a view to have support to the construction at first and second floor level. 919 Sq. Mtrs for the purpose of construction of pillars with a view to have support to the construction at first and second floor level. In view of rival contentions of both sides that the stand of the corporation, in any case, is that since the land forming part of Block B is not handed over fully by making it available as open to sky, it can not be said that the petitioners have handed over the possession of the land forming part of Block B to the Corporation and at the most it can be said that the petitioners have handed over the possession of the land of ground floor level forming part of Block B and have not handed over the land as open to sky, may be by demolishing the structures on first and second floor level and therefore it can not be said that the possession of land forming part of Block B is already handed over and therefore the corporation is duty bound to undertake the process of assessing compensation and making payment of compensation. The corporation, in my view, is not justified in insisting the petitioners that until the possession of the land forming part of Block B is fully handed over by making it open to sky, assessment of compensation can not be made final and therefore the corporation is justified in not proceeding with the process of assessment and payment of compensation to that extent. ( 8 ) IN view of the above discussion, the respondent corporation is directed to assess the compensation for the land admeasuring 52. 36 Sq. Mtrs and to make payment thereof in accordance with law. ( 9 ) SO far as the land admeasuring 16. 72 Sq. Mtrs forming part Block B is concerned, the petitioners will be at liberty to insist for the assessment and payment of compensation from the corporation as and when the possession of the said portion of land is fully handed over by making it open to sky. ( 10 ) THE corporation shall undertake the process of determination and payment of compensation for the land admeasuring 52. 36 Sq. Mtrs forming part of Block A within a period of three months from the date of receipt of writ of this court. ( 11 ) THE petition is partly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. 36 Sq. Mtrs forming part of Block A within a period of three months from the date of receipt of writ of this court. ( 11 ) THE petition is partly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. There shall be no order as to costs. .