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2004 DIGILAW 562 (GUJ)

RAMANLAL DALPATRAM LOKHANDWALA v. SURAT MUNICIPAL CORPORATION

2004-08-25

J.N.PATEL

body2004
J. N. PATEL, J. ( 1 ) THE applicant has preferred this application for review and/or clarification and/or modification of the order passed by this court on 4-8/7/2002 in SCA No. 5165/01 and the petitioner has prayed for further direction to the respondent to pay the interest on the amount of compensation which has been paid to the applicant in pursuance of the order, dated 4-8/7/02. ( 2 ) HEARD Mr. Sanjanwala for the applicant and Mr. Desai for the opponent. Mr. Sanjanwala for the applicant submitted that the applicant would be entitled to interest on the compensation which is paid in pursuance of the earlier order and judgment of this court. He submitted that even if there are no express provisions for payment of interest on the basis of principles of equity the applicant would be entitled to interest over the principal amount of compensation as the possession is taken over earlier and the delay is caused in payment of compensation, as per the decision of the Apex Court in the matter of Satinder Singh and Ors vs. Umrao Singh and others reported in AIR 1961 SC 908 and another judgment of the Apex Court in the matter of South Eastern Coalfields Ltd vs State of M. P. reported in JT 2003 (Suppl. 2)SC 443. Mr. Sanjanwala also relied upon the decision of the Apex Court in the matter of Shivdeo Singh and Ors vs State of Punjab and Ors reported in AIR 1963 SC 1909 and also another decision of the Apex Court in the matter of S. Nagaraj and Ors vs State of Karnataka and Ors reported in 1993 Supp (4) SCC 595 for contending that this court under Article 226 of the Constitution has plenary powers of review and the procedural aspects of scope and ambit of power of review should not operate as bar to the petitioner in pursuing the present review application, if on the facts, this court finds that the petitioner/applicant is entitled to payment of interest. ( 3 ) ON behalf of respondents, Mr. Desai, Ld. counsel submitted that the present application is outside the scope and ambit of review and he submitted that the petitioner should be relegated to file other substantive petition or to prefer appeal before the competent court which has power to decide the question on the quantum of amount of compensation which may include the interest. Mr. Desai, Ld. counsel submitted that the present application is outside the scope and ambit of review and he submitted that the petitioner should be relegated to file other substantive petition or to prefer appeal before the competent court which has power to decide the question on the quantum of amount of compensation which may include the interest. Mr. Desai further submitted that as per the provisions of Bombay Provincial Municipal Corporations Act (hereinafter referred to as "the Act"), more particularly, as per section 212 (4) read with section 216 of the Act, there is no provision for payment of interest and he submitted that the provisions of Land Acquisition Act are not applicable to the Town Planning Scheme under which the the properties are acquired for development of the area. Mr. Desai, Ld. counsel for the opponent relied upon the decision of the Apex Court in the matter of The Municipal Corporation of the City of Ahmedabad vs The State of Gujarat and Ors reported in AIR 1972 SC 1730 for contending that as there is no provision under the Act, applicant would not be entitled to interest. ( 4 ) CONSIDERING the facts and circumstances of the case, it appears that the present application is for asserting a right for payment of interest from the corporation on the amount of compensation. It is the case of respondents that there is no express provision under Bombay Provincial Municipal Corporations Act for payment of interest and it is also the case of the respondents that the provisions of Land Acquisition Act are not applicable to the scheme framed under Town Planning Act and the principles for such purpose if when the property is acquired or is taken over for development would not be applicable. Therefore, for examining the aforesaid aspects, if the petitioner is so advised, the petitioner may prefer separate substantive petition but this court in exercise of its review jurisdiction can not extend the scope and ambit of the main Special C. A. It may be recorded that Mr. Desai, Ld. counsel appearing for the respondents made a statement at Bar, on the basis of record of the corporation that even in the application for demand of compensation, no interest was claimed or demanded by the original petitioner. Desai, Ld. counsel appearing for the respondents made a statement at Bar, on the basis of record of the corporation that even in the application for demand of compensation, no interest was claimed or demanded by the original petitioner. Therefore, whether the applicant would be entitled to interest or not on the basis of equitable considerations and whether there is liability on the part of the respondent corporation to pay the interest in the absence of express provision under the statute, more particularly, when the matter pertains to Town Planning Scheme, where the persons whose properties are to be acquired in part is also to enjoy further development of nearby area and such related questions may be required to be examined in detail and therefore such aspects can not be gone into while exercising power for review. The reliance placed upon the decision of the Apex Court in the case of S. Nagaraj (supra) is illfounded in as much as the same was the decision where the question arose for correcting the mistake. In case of Shivdeosingh (supra) the question before the Apex Court was for rehearing of the matter and the decision to be taken after impleading necessary parties. Such is not the case in the present application and therefore the decision upon which the reliance is placed for invoking the power of this court for review is of no help to the applicant. ( 5 ) IN the above circumstances, subject to aforesaid observations, the application is dismissed. Rule is discharged. In view of the facts and circumstances, there shall be no costs. .