Judgment (Gavai, J.) The petitioner challenges the notice dated 2nd December, 1997 issued by respondent No.2 purportedly under Section 89 of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as 'said Act' for the sake of brevity.) 2. The facts in brief giving rise to the present Petition are as under: The petitioner which is a partnership firm claims to have entered into an agreement for lease on 1st May, 1970 with the landlord M/s.Sundarbhag Builders in respect of an open plot bearing No.289/1. The respondent Corporation had initially issued a notice to the petitioners under the provisions of Section 230(1)(A) of the Bombay Provincial Municipal Corporation Act (hereinafter referred to as the "BPMC Act " for sake of brevity). Being aggrieved by the said notice, the petitioners had filed Regular Civil Suit being Civil Suit No.2219 of 1976 against the Corporation. 3. The Suit was resisted by the respondent Corporation. Vide judgment and order dated 28th September, 1983, the learned 3rd Joint Civil Judge (J.D.), Pune decreed the Suit, and declared that the notice issued by the defendant Corporation dated 25th November, 1976 was illegal, and also restrained the defendant Corporation from removing plaintiff's scrap material from the Suit plot by claiming the plaintiff to be a trespassed over the Suit plot. Being aggrieved by the said judgment and decree, the respondent Corporation went in appeal before the learned District Judge, Pune by way of Civil Appeal No.149 of 1984. The said Appeal came to be dismissed on 6th August, 1986. However, the learned District Judge had observed that if the defendant feels that the plaintiff had committed any other unauthorized act, they may take necessary action by issuing a fresh notice. The injunction awarded was subjected to the disturbance otherwise than in due course of law. It appears that after a period of almost nine years from the date of judgment and decree in the aforesaid Appeal, the respondent Corporation has issued the notice, which is questioned in the present Petition. The Division Bench of this Court vide order dated 9th August, 1998 had granted Rule and interim order in terms of prayer clause (d). After almost 13 years, the Petition has came up for final hearing. 4. We have heard Mr. V.B. Naik, the learned counsel appearing for the petitioners, Mr. R.S. Khadapkar, the learned counsel appearing for the respondent Nos.2 and 3, Mr. After almost 13 years, the Petition has came up for final hearing. 4. We have heard Mr. V.B. Naik, the learned counsel appearing for the petitioners, Mr. R.S. Khadapkar, the learned counsel appearing for the respondent Nos.2 and 3, Mr. A.D. Kango, the learned AGP for the respondent No.1. 5. The basic contention raised on behalf of the petitioners in support of the Petition is that in the final development plan, which is sanctioned by the State Government for the Pune Municipal Corporation area on 5th January, 1987, Final plot No.289/1 is shown as reserved for extension to timber market, whereas in the final town planing scheme which is sanctioned by the State Government on 15th July, 1989 the said plot is shown to be reserved for open space and 50 feet wide road. It is the contention of the learned counsel for the petitioners that in case of a conflict between a town planning scheme and a final development plan, it is a reservation in the town plan scheme which has to yield to the reservation as directed in the final development plan. The learned counsel in this regard refers to the three reported judgments of the Division Bench delivered by the three different Benches of this Court. The first is in the case of Mr. Rusy Kapadia and Ors. vs. State of Maharashtra and Ors [1998 (2) ALL MR 181], the second is in the case of Vijay K. Kumbhar vs. The State of Maharashtra and Ors. [2000 Vol. 102(1) Bom.L.R. 328] and third is in the case of Indirabai B. Bhajekar and Ors vs. Pune Municipal Corporation, Pune and Ors. reported in 2009 (6) AIR Bom.R. 430. 6. As against this, Mr. Khadapkar, the learned counsel appearing on behalf of the respondent Corporation by relying on the various provisions of town planning scheme submits that it is the town planning scheme which would prevail over the development plan. The learned counsel relying on sub-section 3 of Section 83 submits that perusal of said Section would reveal that town planning scheme sanctioned by the State Government has to be construed to be the one having effect, as if it were enacted in this Act, and therefore, submits that the said scheme would prevail over the development plan, in as much as under sub-section 6 of Section 31 of the said Act, no such words are used. Mr. Mr. Khadapkar, the learned counsel further submits that the petitioners are the persons who have not approached this Court with clean hands in as much as they have played fraud on the Court, and therefore, not entitled to equitable relief under Article 226 of the Constitution of India. 7. The learned counsel further submits that the petitioners have no locus to file the present Petition in as much as the petitioners are not the owner of land in question. It is submitted that even the so called lease of the petitioners is on the basis of fraudulent document, and therefore, the Petition is liable to be rejected on this count. 8. With the assistance of the learned counsel appearing on behalf of both the parties, we have gone through the provisions of the said Act. However, prior to considering the said provisions, it will be necessary to refer to the objections raised by the learned counsel for the respondent Corporation regarding maintainability of the Petition. 9. By now, it is a settled position of law that the grounds regarding tenability of the Petition have to be raised at the stage of grant of Rule, and not at the stage of final hearing. The Division Bench of this Court after hearing the submissions of the petitioners and learned AGP as well as the counsel for the respondent Corporation has granted Rule in the present matter on 9th August, 1998. The respondent Corporation could have very well raised the grounds regarding tenability at that stage, which are sought to be raised now. However, the same has not been done. Any way, we will deal with the submissions in that regard also in the interest of justice. 10. In so far as the first contention regarding locus is concerned, it will be relevant to refer to the provisions of Section 72 of the said Act. "72. Arbitrator; his powers and duties: (1) Within one month from the date on which the sanction of the State Government to the draft scheme is published in the Official Gazette, the State Government shall for purposes of one or more planning schemes received by it for sanction appoint any person possessing such qualifications as may be prescribed to be an Arbitrator with sufficient establishment and his duties shall be as hereinafter provided. (2) The State Government may, if it thinks fit at any time, remove for incompetence or misconduct or replace for any good and sufficient reason an Arbitrator appointed under this section and shall forthwith appoint another person to take his place and any proceeding pending before the Arbitrator immediately before the date of his removal or replacement shall be continued and disposed of by the new Arbitrator appointed in his place. (3) In accordance with the prescribed procedure, every Arbitrator shall,- (i) to (iv) ... ... ... ... ... ... (xvi) estimate in reference to claims made before him, after the notice given by him in the prescribed manner, the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions contained in section 102; (xvii) ... ... ... (xviii) ... ... ..." (emphasis supplied) 11. It could thus clearly be seen that under Section 72 the Arbitrator is also required to estimate in reference to claims made before him, after the notice given by him in the prescribed manner, the compensation to be paid to the owner of any property or right injuriously affected by the town planning scheme. It can thus clearly be seen that the words used in the section does not restrict compensation to be paid only to the owner but also includes "right injuriously affected". Undisputedly, the petitioner has been held to be a tenant by the competent Court and as such, the ground regarding locus is without any substance. In this regard, we may also refer to the judgment of the learned Civil Judge in Civil Suit No.2219 of 1976. The said Suit was filed by the present petitioners challenging the notice issued by the corporation purportedly under Section 230 (1)(A) dated 24th November, 1976. It was specific contention of the respondent Corporation in the said Suit that the said Suit plot belongs to the Corporation as the owner has surrendered its possession to the Corporation on 7th April, 1976. The ground which is now raised was also raised before the learned Civil Court contending therein that the plaintiff i.e. the petitioner herein has no legal right whatsoever to use and occupy the said open plot. It was the specific contention of the respondent Corporation that the suit plot was in possession of the respondent Corporation. The ground which is now raised was also raised before the learned Civil Court contending therein that the plaintiff i.e. the petitioner herein has no legal right whatsoever to use and occupy the said open plot. It was the specific contention of the respondent Corporation that the suit plot was in possession of the respondent Corporation. The learned Civil Judge has considered the said submissions in paragraph no.9 of the judgment.: "The defendant counsel, Mr. Vaidya, submitted that the owner had handed over the possession of the suit plot to the Corporation and for this he relied on the possession receipt at Exh.48, did not state that the possession of the suit plot was taken by the corporation by taking the round in the suit plot or doing any over act. He simply says that the owners had executed the possession receipt at Ex.49 in one shed. If this is so, the alleged possession handed over by the owner will be the only paper possession and I hold that no actual possession was handed over to the defendant and as such no reliance can be placed on the possession receipt at Exhibit 49. Similarly the resolution at Exhibit 50 of the standing committee of the Defendant is of no help as long as the real owner do not make any valid gift in the suit plot in favour of the defendant. Valid need registration also. It is admitted fact that no such gift deed is executed by the owner in favour of the defendant. Under such circumstances, I have no hesitation to accept the oral evidence of the plaintiff as well as the decision given by the Small Cause Judges in the decree at Ex. 45(A) and hence I answer Issue Nos.1 & 6 in the affirmative and Issue No.7 in the negative." 12. The said finding of fact was assailed by the respondent Corporation before the learned District Judge. The learned District Judge vide judgment and order dated 6th August, 1986 has dismissed the Appeal by observing thus:- "It was contended that the defendant had at least right for possession, but then firstly the possession may flow from the title, which is not established and on that count no right to possession can be claimed. The learned District Judge vide judgment and order dated 6th August, 1986 has dismissed the Appeal by observing thus:- "It was contended that the defendant had at least right for possession, but then firstly the possession may flow from the title, which is not established and on that count no right to possession can be claimed. Then right of possession can be claimed by either existence or transfers, but no such transfers are either pleaded or proved and consequently the right to possess cannot be also inferred. We, therefore, find that the defendant is not entitled to possession and if this be so, I am afraid that the defendant cannot contend that the suit property belongs to them and they have a right to possess and the plaintiff had committed encroachment upon the defendant's property and if the plaintiff has not committed encroachment upon the defendant's property, I am afraid, the impugned notice is certainly illegal, null and void and liable to be struck down. The trial court was, therefore, quite justified in awarding decree for declaration and injunction, inasmuch as the defendant had committed breach of the obligation existing in favour of the plaintiff unauthorizedly ... ... ... However, if the defendant feels that the plaintiff has committed any other unauthorised act, they may take necessary action by issuing a fresh notice. The injunction awarded is subject to the disturbance otherwise than in due course of law......." It could, thus, be seen that while dismissing the appeal the learned District Judge qualified that the injunction which was granted against the Corporation was subject to disturbance otherwise than in due course of law. It was observed that if the defendant feels that the plaintiff has committed any unauthorized act, they may take necessary action by issuing a fresh notice. It can thus, squarely be seen that the contention of the present respondent Corporation that petitioner had no right in the said land has been categorically rejected by the learned Civil Judge, which has been affirmed by the Appellate Court. 13. The claim of the present respondent Corporation that they were in possession has also been categorically rejected by both the Courts. 13. The claim of the present respondent Corporation that they were in possession has also been categorically rejected by both the Courts. In view of finding of fact recorded by the two Courts, upon appreciation of the evidence on record, to the effect that the petitioner was the person interested in the property, the contention in that regard raised by learned counsel for the respondent Corporation, in our view, has to be heard only to be rejected. It is further to be noted that not only that, but the respondent Corporation has chosen to accept the finding of the learned District Judge inasmuch as no appeal has been preferred there against. In that view of the matter, we are not inclined to accept the contention regarding the locus of the present petitioner. 14. Insofar as the contention regarding fraud is concerned, no doubt that fraud vitiate everything inasmuch as it affects the very solemnity of the proceedings. However, by now, it is the settled law that the fraud has to be pleaded and established by leading a cogent evidence. The reference in this respect could be placed in the cases of S.P. Chengalvarya Naidu (Dead) by Lrs v/s Jagannath (Dead) by Lrs and Ors (1994) I SCC 1, Raghunath Laxman Wani and Ors vs. The State of Maharashtra and Ors ( 1971 (3) S.C.C. 391 ), Zahir Jahangir Vakil and Ors vs. Pune Municipal Corporation and Anr (2006 (4) ALL MR P. 326). 15. In the present case, allegation of fraud is on the basis that the decree in S.C. Suit No.1977 of 1982 dated 30th March, 1983 is a collusive decree, obtained by fraud. The first opportunity that the respondent Corporation had to plead collusion and fraud was, when it resisted the suit filed by the present petitioner being Civil Suit No.2219 of 1976. Leave aside there being any pleading in the Written Statement, there is not even a whisper about the same. The respondent Corporation though had every opportunity of pleading and establishing that the decree obtained in S.C.Suit No.1977 of 1982 was a fraudulent decree, have not availed of the same. In that view of the matter, in our considered view, the respondent Corporation cannot be permitted to plead for first time, in this Court, that the decree obtained in Civil Suit No.1977 of 1982 was a decree obtained by fraud. In that view of the matter, in our considered view, the respondent Corporation cannot be permitted to plead for first time, in this Court, that the decree obtained in Civil Suit No.1977 of 1982 was a decree obtained by fraud. Having not pleaded and proved the same in the civil proceedings in which the respondent Corporation had an opportunity to do the same, we are of the considered view that the petitioner is estopped from doing so in the present proceedings. Insofar as the judgment of the Apex Court in the case of S.P. Chengalvarya (supra) which is heavily relied upon by the respondent Corporation in that regard is concerned, the same would not be applicable to the facts of the present case. In the said case, the plaintiff had filed an application for final decree for partition and separate possession. The defendants had contested the application on the ground that preliminary decree which was sought to be made final, was obtained by fraud, and as such, application was liable to be dismissed. The learned trial Judge on the basis of the evidence that was led before it, accepted the contention of the defendant that the preliminary decree was obtained by fraud, and therefore, rejected the application. The same was interfered with by the High Court. In this background the Apex Court in S.P.Chengalvaraya Naidu (supra) observed thus:- "The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that " there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence." The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation." 16. In the present case, apart from there being any finding of fraud, the respondent Corporation though had sufficient opportunity to plead and establish the same, had not even attempted to do same. In that view of the matter, reliance placed is of no assistance to the case of the respondent Corporation. 17. That leaves us to the main contention in the present Petition. Though the learned counsel for the respondent Corporation has vehemently argued that it is the town planning scheme which will prevail over the development plan, but as a matter of judicial propriety, we would not be in a position to accept the contention made in that regard, inasmuch as three Division Benches have taken the view, which is contrary to the submissions made by the learned counsel for the respondent Corporation. The first judgment in that line is by the Division Bench of this Court in the case of Rusy Kapadia (supra). After considering the contention of the counsel that the town planning scheme will have overriding effect over the development plan this Court has observed thus: "One of the submissions canvassed by the learned counsel is that before the development plan came into being, some time in 1943, the land in question was sown in the Town Planning Scheme of Pune. The Town Planning Scheme under Section 86 was sanctioned some time in 1989. According to the learned counsel this is subsequent to the sanction of Development Plan and as such the Town Planning Scheme will prevail over the Development Plan. Initially this submission was canvassed by the learned counsel for the Government, Mr. Zambre. However, they could not pursue it. It was then reiterated by Mr. Anturkar with more force that the Town Planning Scheme will have sway over the Development Plan. Initially this submission was canvassed by the learned counsel for the Government, Mr. Zambre. However, they could not pursue it. It was then reiterated by Mr. Anturkar with more force that the Town Planning Scheme will have sway over the Development Plan. We heard and also perused the provisions with the assistance of the learned counsel for the parties. Town Planning scheme is provided and dealt with by Chapter V of the Act. This Chapter has beginning with Section 59 and opening of the Section itself refers that the provisions of this Chapter are subject to the provisions of the Act. The provisions precedent to section 59 are from Section 1 to Section 58 which include Section 31, Sub-section (6) which proclaims that the Draft Plan is final and binding on the Planning Authority. As such the binding force would carry even when they any way deal with the Town Planning Scheme. Besides this Section 39 and Section 42 of the Act unequivocally indicate that the Development Plan has to definitely prevail over anything and everything including the Town Planning Scheme. In view of this the submission is without any merit." 18. Another Division Bench of this Court in the case of Vijay Krishna Kumbhar vs. The State of Maharashtra and Ors [2000 Vol.102 (1) Bom.L.R. 328], had considered the same issue and also considered the judgment of the Division Bench in the case of Rusy Kapadia (supra). In the said case, it was sought to be argued on behalf of the Corporation that the two earlier judgments of this Court in the case of H.J. Rathi and Ors. vs. The Competent Authority under the Urban Land Ceiling Act (W.P.No.3816 of 1982 decided on 15th July, 1983) and case of J.C.Bhave and Ors vs. Pune Municipal Corporation (W.P.No.8 of 1997 decided on 6th August, 1997) were not considered by the Court in the case of Rusy Kapadia (supra). It was therefore contended that the view taken by the Division Bench in the case of Rusy Kapadia is per incuriam. Rejecting the said contention, the Division Bench observed, thus, in paragraph No.152. "152. It was therefore contended that the view taken by the Division Bench in the case of Rusy Kapadia is per incuriam. Rejecting the said contention, the Division Bench observed, thus, in paragraph No.152. "152. We are of the view that the proposition, that in the event of a conflict between the provisions of the Development Plan and the Town Planning Scheme, the former would prevail, is clearly laid down in the judgment in Rusy Kapadia and Ors v State of Maharashtra and Ors. (Writ Petition No.2087 of 1993 dated September 4, 1997), (Per A.A.Desai and S.S.Parkar, JJ) and not in the two authorities to which our attention was drawn. We, therefore, reject the contention of the learned Counsel that the judgment in Rusy Kapadia (supra) is per incuriam. In our view, it is not necessary to go into the principles as to when a judgment could be said to be per incuriam and carry on the exercise to discover the nuances and limitations of the doctrine of precedent. Despite our view that the judgment in Rusy Kapadia (supra) has answered the issue canvassed, we shall prefer to answer the issue a new on a consideration of all the arguments urged before us." The Division Bench further observed thus in paragraph No.160 : "160. Section 56 is another indicator of legislative intent. It provides that, even when authorized development or use of land is resorted to, if the Planning Authority thinks that it is expedient in the interest of proper planning of its areas, having regard to the Development Plan prepared that there should be a change or discontinuance of the authorized development or that the authorized development should be put to further conditions or the structures already put up on the land should be dismantled, then the Planning Authority is empowered to do so, subject, of course, to the right of appeal and the right to compensation as dealt with in the section. We are of the view that the Division Bench of A.A.Desai and S.S.Parkar, therefore, rightly observed that the opening words of section 59 " subject to the provisions of this Act" necessarily meant subject to the gamut of provisions of sections 1 of 58 of the Act. We are of the view that the Division Bench of A.A.Desai and S.S.Parkar, therefore, rightly observed that the opening words of section 59 " subject to the provisions of this Act" necessarily meant subject to the gamut of provisions of sections 1 of 58 of the Act. In fact, it would appear to us that, barring the solitary provision in section 39, there is no other provision in the Act dealing with the situation as to what happens when there is already an existing Town Planning Scheme and a final Development Plan containing proposals in variation or modification of those contained in the existing Town Planning Scheme is made. This section is also an indicator, in our view, since it unhesitatingly declares that it shall be the duty of the Planning Authority to alter the existing scheme suitable by resorting to section 92 to the extent necessary by the proposals made in the final Development Plan". The Division Bench further observed thus in paragraph No.167:" "167. Chapter V of the M.R.T.P. Act deals with the Town Planning Scheme and makes detailed provisions as to what the Town Planning Schemes may contain, how the Town Planning Schemes is to be prepared, including reservation and allotment of the land required under clause (b) of sub-section (1) of Section 59 and any of the matters specified in section 22 of the Act. Mr.Tulzapurkar contends that, by reason of section 86 (3), after the Town Planning Scheme is finally sanctioned, it shall have effect as if it were formulated in the Act." "Mr.Tulzapurkar urges that this is indicative of the fact that the legislature intended to accord higher status to the Town Planning Scheme. The absence of such a provision when dealing with the Development Plan is a clue to the legislative thinking in the submission of the learned Counsel. Mr.Tulzapurkar cited the judgment of the Supreme Court in State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 215 . The Supreme Court was here considering the provisions of section 6 of the Karnataka Contract Carriages (Acquisition) Act, 1976. Mr.Tulzapurkar cited the judgment of the Supreme Court in State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 215 . The Supreme Court was here considering the provisions of section 6 of the Karnataka Contract Carriages (Acquisition) Act, 1976. After laying down the manner of determining of the amounts payable to the Contract Carriage, clause (e) of section 6 of the Act provided that the Arbitrator shall, after hearing the dispute, make an award determining the amount which appears to him just and reasonable and also specifying the person or persons to whom the amount shall be paid, and in making the award he `shall have regard' to the circumstances of each case and the provisions of the Schedule so far as they are applicable." "In paragraph 23 of the judgment, the Supreme Court referred to the observations of Romer, C.J., to several English judgments and also to its own judgment in Saraswati Industrial Syndicate Ltd. Etc. v. Union of India, AIR 1975 SC 460 , where it was held, "The expression "having regard to" only obliges the Government to consider as relevant material to which it must have regard." in our view this discussion does not carry us forward at all. Undoubtedly, looked at from any point of view, the Planning Authority must have regard to the provisions of the Development Plan. But does it, in the context of the M.R.T.P. Act, mean that only taken attention needs to be paid to the provisions of the Development Plan, they being ignored while granting development permission? For the reasons already indicated viz., that the provisions of section 39 and the two provisions in sub-section 5 of section 45, we are inclined to take a contrary view. In our considered judgment, "shall have due regard" as used in the M.R.T.P Act, when considered in the light of the scheme of the Act, suggests more than mere token service to the Development Plan. This is particularly so when we consider the concept of Development Plan in the development of town and cities." 19. The contention raised in the present Petition that since the words used in Section 86 of Sub-section 3 of the Act are that "the scheme shall have effect as it enacted in this Act", and, as such, the town planning scheme has overriding effect has been specifically rejected in paragraph no.167 by the Division Bench in the aforesaid case. The contention raised in the present Petition that since the words used in Section 86 of Sub-section 3 of the Act are that "the scheme shall have effect as it enacted in this Act", and, as such, the town planning scheme has overriding effect has been specifically rejected in paragraph no.167 by the Division Bench in the aforesaid case. The learned Judges of the Division Bench have in equivalent terms held that in case of conflicts between development plan and town planning scheme, it is the development plan scheme which will prevail. The Division Bench of this Court in the case of Smt. Indirabai Bhalchandra Bhajekar has held thus:- "17. ... ... The notice dated 2/12/1997 seeking possession of the plot is squarely based on the Corporation's belief that the Town Planning Scheme sanctioned on 15/7/1989 prevails. We are dealing with the case where a public body like a Municipal Corporation claims to have become absolute owner of a prime property in the heart of the city and that too without paying compensation or resorting to acquisition proceedings within the meaning of Section 126 of the M.R.T.P. Act. The claim of the Corporation that it has become the absolute owner of the suit plot, in the facts of this case, is in violation of the guarantee under Article 300A of the Constitution......." 20. It can thus, clearly be seen that, this Court has clearly held that the claim of the Corporation that it has become owner of the property in question on the basis of sanctioned town planning scheme, is without substance and is also in violation of the constitutional right under Section 300-A of the Constitution. In that view of the matter, the contention of the respondent Corporation in that regard is also without substance. 21. Insofar as the judgment of the Apex Court in the case of Municipal Corporation for Greater Bombay and another vs. The Advance Builders (India) Pvt Ltd and Ors, 1971 (3) SCC 381 on which the learned counsel for the respondent Corporation heavily relied is concerned, the said judgment is also of no assistance to the case of the petitioner. The judgment is relied in support of the preposition that the Corporation is bound to comply with the mandate of town planning scheme and to take further steps so that the scheme is being implemented. There can be no quarrel regarding that proposition. The judgment is relied in support of the preposition that the Corporation is bound to comply with the mandate of town planning scheme and to take further steps so that the scheme is being implemented. There can be no quarrel regarding that proposition. However, the question as to whether what shall be the effect in case of conflict between the development plan and town planning scheme, was not an issue before the Apex Court. There cannot be doubt that if there is no conflict between the development plan and town planning scheme, the respondent authorities would be bound to comply with the provisions made in the town planning scheme and take necessary steps for implementing the same. As such, the said judgment is of no assistance to the case of the respondent Corporation. 22. The last judgment which is relied on behalf of the respondent Corporation is of the Division Bench of this Court in the case of Zahir Jahangir Vakil (supra). The issue before the Division Bench was as to whether even after vesting of land in favour of the Corporation under Section 89 of the said Act, will it be necessary to acquire the land under Section 126 of the said Act. The Division Bench found that Chapter V of the said Act was a complete code in itself and Section 72 provided for determination of compensation to the land owners for the land acquired. It was further held that various factors are required to be taken into consideration while ascertaining compensation like the value of the land prior to preparation of the scheme, value of the land after carrying out necessary development etc. It was submitted since the compensation was already provided for under Section 72, there was no question of paying compensation determining the same under Section 126 of the Act. As such, the said judgment is also not applicable to the facts of the present case. 23. In any case, the fallacy of the argument of the respondent Corporation would be evident upon reading only two provisions of the said Act. Section 39 and Section 59 of the said Act would be relevant for considering the said submissions. "39. As such, the said judgment is also not applicable to the facts of the present case. 23. In any case, the fallacy of the argument of the respondent Corporation would be evident upon reading only two provisions of the said Act. Section 39 and Section 59 of the said Act would be relevant for considering the said submissions. "39. Variation of town planning scheme by Development plan.Where a final Development plan contains proposals which are in variation, or modification of those made in a town planning scheme which has been sanctioned by the State Government before the commencement of this Act, the Planning Authority shall very such scheme suitably under section 92 to the extent necessary by the proposals made in the final Development plan." "59. Preparation and contents of town planning scheme.(1) Subject to the provisions of this Act or any other law for the time being in force- (a) a Planning Authority may for the purpose of implementing the proposals in the final Development Plan, prepare one or more town planning schemes for the area within its jurisdiction, or any part thereof; (b) a town planning scheme may make provision for any of the following matters, that is to say (i) any of the matters specified in section 22; (ii) the laying out or relaying out of land, either vacant or already built upon, including areas of comprehensive development; (iii) the suspension, as far as may be necessary for the proper carrying out of the scheme, of any rule, bylaw, regulation, notification or order made or issued under any law for the time being in force which the Legislature of the State is competent to make; (iv) such other matter not inconsistent with the object of this Act, as may be directed by the State Government. (2) In making provisions in a draft town planning scheme for any of the matters referred to in clause (b) of sub-section (1), it shall be lawful for a Planning Authority with the approval of the Director of Town Planning and subject to the provisions of section 68 to provide for suitable amendment of the Development Plan." 24. A Perusal of Section 59 would reveal that the very purpose of preparing town planning scheme is for implementation of the proposals in the final development plan. A Perusal of Section 59 would reveal that the very purpose of preparing town planning scheme is for implementation of the proposals in the final development plan. The development plan is not for the purpose of implementing the provisions in the town planning scheme, but it is the town planning schemes which are supposed to be prepared for implementing the proposals as made in final development plan. Apart from that, Section 39 clearly provides that where a final development plan contains proposals which are in variation or modification of those made in a town planning scheme, which has been sanctioned by the State Government before the commencement of this Act, the Planning Authority shall vary such scheme suitably under Section 92 to the extent necessary by the proposals made in the final development plan. In the present case, the town planning scheme itself is sanctioned after the development plan was sanctioned, though the intention has been declared prior to final development plan being published. As such, it can clearly be seen that even if the said scheme was sanctioned prior to commencement of the Act, and if it was in conflict with the proposals as made in development plan, Planning Authority was bound to make variation in a town planning scheme so as to bring it in conformity with the development plan. 25. Mr. Khadapkar, the learned counsel appearing on behalf of respondent nos.2 and 3 further submitted that the town planning scheme was in the larger public interest since it provided for open space plot and public road. 26. Insofar as the contention of Mr. Khadapkar regarding larger public interest is concerned, no doubt that larger public interest should yield to the private interest of an individual. However, that cannot be done without following due process of law. The right to property though no more fundamental right, is still recognized to be the constitutional right. Reference in this context would be made to the judgment of the Apex Court in the cases of Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chanai and Ors., ( 2007 6 SCC 81 ) Bharat Petroleum Corporation Ltd. vs. Maddula Ranavalli and Ors. (2007) 6 SCC 81 . If the Corporation was so much interested in public interest, nothing precluded it from making minor modification as provided under Section 37 of the said Act. (2007) 6 SCC 81 . If the Corporation was so much interested in public interest, nothing precluded it from making minor modification as provided under Section 37 of the said Act. The Corporation, if it so desires, can also acquire the land by taking recourse to the provisions of Land Acquisition Act. However, the Corporation cannot be permitted to deprive the citizen of his right in a property without following due process of law. 27. In that view of the matter, the impugned notice having been found to be in total conflict with the provisions made in the development plan, is not sustainable in law, and deserves to be quashed and set aside. Rule, is therefore, made absolute in terms of prayer clause (a).