JUDGMENT
B.N. Kirpal, C.J.
1. The challenge in this appeal is to the judgment of the learned single Judge, who had allowed the writ petition, being Special Civil Application No. 4446 of 1991 filed by the respondents Nos. 1 to 3, who had sought a direction to be, issued to the appellants herein to grant permission to the said respondents to construct.
2. Briefly stated, the facts are that the respondents are the owners of parcels of land, bearing Suvery Nos. 270 and 271 of village Katargam, District Surat, which falls within the Municipal limits of the Surat Municipal Corporation.
3. The said respondents had applied for permission to the appellant-Corporation for sanctioning the building plans. This permission was withheld and the respondents filed Special Civil Application No. 7145 of 1988 and the same was allowed, vide judgment dated 14th June, 1990, and the Corporation was directed to decide whether or not to grant sanction to the building plans. The Corporation, in that judgment was also directed not to reject the plans on the ground that it was contemplating acquisition of land in question.
4. The Corporation, again, did not sanction the plans and in reply to the present writ petition which was filed, the stand taken by it is that the Corporation has passed a Resolution for acquisition of the land and the Government has approved the said Resolution, vide order dated 5th June, 1991, passed under Section 78 of the Bombay Municipal Corporations Act arid, therefore, the Municipal Corporation was not considering the plans submitted by the respondents on the ground that it was contemplating acquisition of the land in question.
5. The learned single Judge made the Rule absolute and observed that contemplating acquisition is no ground for declining to approve the building plans.
6. Section 78 of the Corporation Act provides for procedure to be followed by the Corporation when immovable property cannot be acquired by agreement. It postulates an application being filed before the State Government by the Commissioner of the Corporation, seeking approval for acquisition of property and the State Government may pass an order for proceedings to be taken for acquiring the same on behalf of the Corporation.
7. It is not in dispute that the acquisition has taken place under the provisions of the Land Acquisition Act, 1894: The question which arises is that merely on the grant of approval by the Government under Section 78 of the Corporation Act, do the acquisition proceedings commence, as is sought -to be contended by the learned counsel for the appellants, or even if they do commence, can the Corporation not consider the building plans on merit?
8. The approval, which is granted under Section 78 by the, passing of an order by the Government is nothing more than a decision to initiate acquisition proceedings. The Land Acquisition Act contemplates proceedings being initiated by the issuance of a Notification under Section 4 thereof. When such a notice is issued, one of the incidents thereto is that, if the acquisition is completed, then the person whose property is acquired will get compensation with reference to the date of the Section 4 Notification. With regard to the buildings, if any construction has taken place and the same exists when the Notification under Section 4 is issued, the person concerned is entitled to get compensation for the acquisition of the said building, but no right to claim compensation exists for any building, which is constructed thereafter.
9. The Corporation Act does not compel the Corporation to commence the acquisition under the Land Acquisition Act within a stipulated period. If the contention of the learned counsel for the appellant is accepted, the effect would be that the respondents, who are the owners of the land, would be deprived of its use, merely because the Corporation contemplates to acquire the said property. Such contemplation may continue for a number of years because, as already observed, there is no time limit within which the Notification under Section 4 of the Land Acquisition Act should be issued.
10. The respondents cannot construct without the building plans being approved by the Corporation: When there is no other legal impediment in the way of the respondents to construct, it would in our opinion, be an arbitrary exercise of the power on behalf of the Corporation in not considering the building plans merely because an order under Section 78 of the Corporation Act has been passed. It is no doubt true that the passing of such an order would indicate that the property in question is likely to be acquired, but that is the risk which the respondents face when they apply for sanction of the building plan notwithstanding intended acquisition. As far as the Corporation Act is concerned, the passing of an order under Section 78 is not a ground for rejecting or not considering the building plans for sanction. We are, therefore, in agreement with the learned single Judge, who came to the conclusion that the Corporation could not reject building plans merely because they were contemplating to acquire the same.
11. This appeal is accordingly dismissed, but without any order as to costs.