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B.N. Sapre, J.—These six appeals raise a common question of law of some importance regarding the interpretation of certain provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as ''the Act of 1966''). First Appeal Nos. 266/73, 299/73, 420/73 and 480/73 arise out of Spl. Civil Suit No. 49/70, and First Appeal Nos. 353/73 and 421/73 arise out of Spl. Civil Suit No. 21 of 1970, both of which were decided by the Civil Judge, S. D., Nasik, on October 31, 1972.
It will be sufficient if we give the facts only of Spl. Civil Suit No. 49/70 as the material facts in the two suits are not in dispute, and on the question, of law that we will be deciding it will be possible to dispose of all the six appeals.
Special Civil Suit No. 49/70 was brought by two plaintiffs against 13 defendants. The first defendant is the Nasik Municipal Council, Nasik and the second defendant is its Chief Officer. Defendants Nos. 3 to 13 are tenants of the plaintiffs in respect of different portions from certain plots of land. The case of the plaintiffs was that they were the owners of the property bearing S. Nos. 535-A/4, 536/4, 536/6 and part of City Survey No. 1901, being Sub-No. 1901/2-9, situate within the limits of Nasik, Tahsil and District Nasik.
By its resolution dated November 11, 1941, the Nasik Municipal Council declared its intention under the Town Planning Act, 1915 of making a Town Planning Scheme applicable to some part of Nasik District. A scheme ultimately came to be prepared under the Bombay Town Planning Act, 1954 (hereinafter referred to as ''the Act of 1954''). It was prepared on June 12, 1963. The Town Planning Scheme was made final and came to be known as Town Planning Scheme Nasik No. 1 (Final). This was published in Maharashtra Government Gazette on June 20, ly63, and it was to come into force on October 1, 1963. This scheme is a Government Publication and though it has been printed; surprisingly, no copy of the scheme was produced at the trial At the time of the hearing of these appeals, two copies of the Town Planning Scheme Nasik No. 1 (Final) were produced We have taken them on record at the request of the Advocates on either side by their consent (Marked Exh. ''A'' in F. A. No. 266 of 1973).
It may be noted that during the course of the proceedings of making the town planning scheme plot numbers were assigned to the plaintiffs property referred to above. Property bearing S. No. 535-A/4 was given original plot No. 223-A; S. No. 536/4 was given original plot No. 211; S. No. 536/6 was given original plot No. 209, while City S. No. 1901/2-9 was given original plot No. 2''27-B. In the final scheme original plot No. 209 came to be assigned as final plot No. 236. Original plot Nos. 211 and 223-A were assigned as final plot No. 219. Original plot No. 227-B was assigned final plot No. 238-C. As already stated, the scheme was made under the Act of 1954 and when it came into force on October 1, 1963, the Act of 1954 was in force. However, when the suits were filed in the yeas 1970 the Act of 1966 had come into force with effect from January 11, 1967.
The above three final plots came to be allotted to the plaintiffs under the new scheme. Defendants Nos. 3 to 13 are tenants of the plaintiffs on different pieces from these plots. They were utilising the land in their respective possession for stacking hay. The plaintiffs had let out those portions to these defendants on their agreeing to pay rent for use and occupation They still continue to be in possession of their respective portions, which now form portions of final plot Nos. 219, 236 and 238-C. The final plots fall in the residential area under the Town Planning Scheme. They are utilising the plots for nonresidential purpose and, therefore, according to the plaintiffs, the use is unauthorised. Consequently their possession of the plots is also unauthorised. The Nasik Municipal Council is, therefore, under an obligation to evict defendants Nos. 3 to 13 by exercise of their powers under the Act of 1966, as they are persons not entitled to occupy the lands in their occupation. As the Nasik Municipal Council had failed to evict defendants Nos. 3 to 13, the plaintiffs had tiled the present suit for a mandatory injunction directing the Nasik Municipal Council and its Chief Officer to evict defendants Nos. 3 to 13 summarily from the said plots. The plaintiffs also claimed damages amounting to Rs. 8000 which-- they had suffered consequent on the Nasik Municipal Council refusing to evict defendants Nos. 3 to 13 from the said plots.
The defence of the Nasik Municipal Council, which was also adopted by the tenants, was that defendants Nos. 3 to 13 were tenants of the plaintiffs in respect of the old plots and they are now tenants of the plaintiffs in respect of the final plots. Their occupation of the final plots is, therefore, not unauthorised and they cannot be summarily evicted by resorting to the powers under the Act of 1966 on the ground that they are persons not entitled to occupy the plots.
The learned trial Judge held that whatever rights defendants Nos. 3 to 13 had in relation to the old plots came to be extinguished when the Town Planning Scheme was made final and no right of tenancy existed in them in relation to the final plots. During the course of the judgment he observed as follows:
It is not disputed that when the Town Planning Scheme is made final the suit property is ear-marked or allotted for residential purpose. It is dear, therefore, that the use of the defendants Nos. 3 to 13 of the property is not for residential purpose and as such, they cannot be said to be entitled to occupy the premises. No longer the final scheme came into existence, any use of the property otherwise then for residence becomes unauthorised and the person occupying the site for such other purpose is not entitled to occupy it. The only occupation that will tee allowed is the occupation for residence. Occupation for godowns, sheds, grass stacks and such other purpose is one which is contrary to the object of the Town Planning Act. Hence defendants Nos. 3 to 13 are not entitled to occupy the site under the Town Planning Act because, to repeat again, their occupation viz. for the purpose of godown, grass-stacks sheds, is not one allowed under the Town Planning Act. The defendants Nos. 3 to 13 therefore, would not be entitled to occupy the site after the final scheme is introduced.
The learned trial Judge also observed that the tenancy between defendants Nos. 3 to 13 and the plaintiffs came to an end immediately when the occupation under the old tenancy became contrary to the Town Planning Act. There was therefore no tenancy when the Town Planning Scheme (Final) was made and defendants Nos. 3 to 13 were no longer tenants. The learned trial Judge, therefore, held that defendants Nos. 3 to 13 were persons who were not entitled to remain in occupation of the plots and therefore the Nasik Municipal Council was bound to evict them summarily. The learned trial Judge accordingly granted a decree in favour of the plaintiffs for mandatory injunction directing defendants Nos. 1 and 2 to remove defendants Nos. 3 to 13 from the final plots Nos. 236, 219 and 238-C within six months from the date of the decree. The Plaintiff ''s claim for compensation was, however, dismissed for want of proof that the plaintiffs had really suffered any damage, and if so to what extent.
First Appeal No. 266 of 1973 has been preferred by the plaintiffs against the dismissal of their claim for compensation. First Appeal No. 299 of 1973 has been preferred by the Nasik Municipal Council and its Chief Officer. First Appeal No. 420 of 1973 has been preferred by defendants Nos. 3 to 7, 9, 11 and 12. First Appeal No. 480 of 1973 has been preferred by defendant No. 13.
Special Civil Suit No. 21 of 1970 was filed by a different set of persons in respect of different lands under similar circumstances against the Nasik Municipal Council, its Chief Officer and the tenants. In that case a decree, both for mandatory injunction and damages, was passed in favour of the plaintiffs. From that decree First Appeal No. 353 of 1973 has been filed by the Nasik Municipal Council and its Chief Officer, while First Appeal No. 421 of 1973 has been filed by defendants Nos. 4 to 7 who were the tenants.
The power under which, according to the plaintiff''s, the Municipal Council was bound to evict defendants Nos. 3 to 13 summarily is given by section 89 (1) of the Act of 1966. It is a parallel provision to section 54 of the Act of 1954. Section 54 of the Act of 1954 reads as under:
''''54. On and after the day on which the final scheme comes into force any person continuing to occupy and land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority.
Section 89 (1) of the Act of 1966 reads as under:
''''89 (1). On and after the day on which a final scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the Planning Authority or any of its officers authorised in that behalf by that Authority.
The learned trial Judge, as we have pointed out, has held that the Municipal Council has not only the power but a duty to evict defendants Nos. 3 to 13 from the final plots because they are persons not entitled to occupy any land from the final plots under the final scheme.
On behalf of the Municipal Council as also the tenants a two-fold argument is advanced. It is urged that the rights of defendants Nos. 3 to 13 as tenants of the plaintiffs in the original plots did not come to an end on the town planning scheme being made final, but on the other hand those rights were transferred to the corresponding final plots allotted to and owned by the plaintiffs. Hence in relation to the final plots defendants Nos. 3 to 13 cannot be said to be persons not entitled to occupy the final plots under the scheme within the meaning of section 89 (1) of the Act of 1966. Hence they cannot be summarily evicted as persons who are not entitled to occupy the final plots. Secondly, it is urged that it may be that after the final scheme is made, which is intended mainly for residential purposes, the user of the final plots for non-residential purpose such as stacking hay may be an unauthorised user of the plots. But it does not became so merely because or as soon as the scheme is made. The planning Authority, i.e. the Municipal Council in this case, had to make provision in the scheme for the discontinuance of the objectionable user of the land within a reasonable period. No such provision has been made in the Scheme. Hence it cannot be said that the previous user by the tenants which was permitted had become unauthorised. Assuming for the sake of argument that it had become an unauthorised user that could not be a ground for summarily evicting the tenants. Either they can be asked to stop their unauthorised user or they could be otherwise penalised for making unauthorised user of the land, but on that ground they cannot be evicted.
As we have pointed out, it is not in dispute that the plaintiffs were the owners of the portions from the old plots given on lease to defendants Nos. 3 to 13 and the defendants were using their respective lands for stacking hay. It is not the case of the plaintiffs that they had at any time terminated the tenancy of defendants Nos. 3 to 13. It is further not disputed by the plaintiffs that they are the owners of the reconstituted or final plot Nos. 219, 236 and 238-C which comprised the same old land with minor adjustments and defendants Nos. 3 to 13 are in possession of portions from these lands and further that they are using these lands for the purpose of stacking hay. It is also not disputed before us on behalf of the Municipal Council that if the Court finds that defendants Nos. 3 to 13 are not entitled to occupy the portions of the plots of lands under the final scheme within the meaning of section 89 (1) of the Act of 1966, there is undoubtedly a duty cast on the Municipal Council to summarily evict these defendants and in that case the mandatory decree granted by the trial Court would be correct. The principal question that falls for our consideration, therefore, is: whether defendants Nos. 3 to 13 can be said to be persons not entitled to occupy the land from the final plots within the meaning of section 89 (1) of the Act of 1966.
As we have pointed out, the scheme in question was prepared under the Act of 1954 and came into force before the Act of 1966 was promulgated. Only the suits were filed after the Act of 1966 came into force. It will, therefore, be sufficient if we refer to the provisions from the Act of 1954 because there are parallel provisions also in the Act of 1966, and we will point out the difference in the provisions in the Act of 1966 and the Act of 1954 wherever there is such a difference.
Section 53 of the Act of 1954 so far as is relevant for our purposes reads as under:
On the day on which the final scheme comes into force,
(a) - - -
(b) all rights in the original plots which have been re-constituted shall determine and the re-constituted plots shall become subject to the rights settled by the Town Planning Officer.
Section 54 reads as under:
On and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the local authority.
Section 63 reads as under :
Any right in an original plot which in the opinion of the Town Planning Officer is capable of being transferred wholly or in part, without prejudice to the making of a town planning scheme to a reconstituted plot shall be so transferred and any right in an original plot which in the opinion of the Town Planning Officer is not capable of being so transferred shall be extinguished:
***
The effect of these three provisions read together, to state broadly, is this. All rights in the original plots which have been reconstituted shall determine, but any right in an original plot which in the opinion of the Town Planning Officer is capable of being transferred wholly or in part, without prejudice to the making of a town planning scheme to a reconstituted plot shall be so transferred but if any right in an original plot which in the opinion of the Town Planning Officer is not capable of being so transferred shall be extinguished. To start, therefore, all the rights in the original plots have to come to an end and they will be recognised in the reconstituted plots provided the Town Planning Officer thinks that this is possible to do without prejudice to the making of the town planning scheme. Whenever such rights are transferred from the original plots to the reconstituted plots those rights will be subject to what the Town Planning Officer settles in the scheme about those rights. If a Town Planning Officer recognises those rights in the reconstituted plots then the person enjoying those rights and remaining in possession of the reconstituted plots in pursuance of that enjoyment will not be a person not entitled to occupy the final or the reconstituted plot.
Before we dilate further on this, it is also necessary to notice some more provisions in the Act of 1954 as also in the Final Scheme. Section 18 of the Act of 1954 deals with ''making and contents of town planning scheme''. Sub-section (2) of section 18 provides that the town planning scheme may make provisions for certain matters, clause (j) of which amongst other things provides for the discontinuance of objectional users of land in any area in reasonable periods. Regulation 2 in Schedule ''A'' of the scheme Exh. ''A'' (page 4) dealing with the development of the area in the scheme provides that the area included in the scheme is intended mainly for residential purposes. The Regulations provide for non-residential premises in the residential area such as shops, petrol pump, service station, cinema theatre which are considered incidental to or as providing essential amenities for the residents in the residential area. Regulation No. 27 provides that no dangerous or offensive or unhygienic trade or milk-cattle-stables shall be allowed within the area of the Scheme.
We have already stated the the combined effect of the provisions in sections 53, 54 and 68 of the Act of 1954. Now, in Schedule ''B'' of the Final Scheme Exh. ''A'' (page 48) it has been provided in Note 3:
All rights of lessors and lessees in the original plots, if any, are hereby transferred to the corresponding final plots, irrespective of the slight increase or decrease in the areas of the final plots allotted to them.
It will thus be seen that under the Final Scheme all the rights of the lessees in the original plots have been preserved and transferred to the corresponding final plots. We have pointed out that u/s 53 (b) as well as section 68 of the Act of 1954, though to begin with, all the rights in the original plots are to come to an end, those rights are preserved and recognised in the reconstituted plots, if the Town Planning Officer is of the opinion that the said rights can be transferred without prejudice to the making of the town planning scheme. It is, therefore, for the Town Planning Officer to recognise rights in the original plots in the reconstituted plots. In the instant case, this has been done in Note 3, which we have already reproduced.
Section 51 of the Act of 1934 provides that when the State Government sanctions the Scheme and issues a notification stating amongst other things the date on which the final scheme shall come into force, then on and after the date fixed in such notification a town planning scheme shall have effect as if it has been enacted in the Act. In the instant case, there is no dispute that the scheme in question had come into force on October 1, 1963 and, therefore, Note 3 in Schedule ''B'' of the Scheme, which we have already reproduced and which was part of the Scheme had the effect as if that part of the Scheme were enacted under the Act of 1954. The rights of defendants Nos. 3 to 13 as lessees in the original plots were therefore, under the terms of the scheme, transferred to the corresponding final plots and in this view of the matter defendants Nos. 3 to 13 cannot be said to be persons not entitled to occupy the final plots under the Final Scheme.
Mr. Abhyankar for the plaintiffs does not dispute that the leases in favour of defendants Nos. 3 to 13 in the old plots were transferred to the reconstituted plots. But his argument is that because the tenants are now using the lands in their possession for a non-residential purpose, which use is objectionable under the Final Scheme, because the final plots are in the residential area, occupation of defendants Nos. 3 to 13 of land in the final plots also becomes unauthorised, and, therefore, they are persons not entitled to occupy the final plots within the meaning of section 54 of the Act of 1954 or section 89 (1) of the Act of 1966.
Mr. Jahagirdar for the tenants urged that it may be that after the Final Scheme was made which was intended mainly for residential purpose, user of the final plots for a non-residential purpose such as for stacking hay may be an unauthorised user of the plots, but it does not become so merely because or as soon as the Scheme is made or comes into force. The planning authority, which the Municipal Council in the instant case is, had to make provision in the scheme for the discontinuance of the objectionable user of the plots within a reasonable period. No such provision has been made in the scheme. Hence, it could not be said that the previous user of the plots, which was authorised, had become unauthorised on the Final Scheme being put into force.
It is true that, as we have pointed out, section 18 (2) (j) provides that the scheme may provide for the discontinuance of the objectional user of the land in an area for residential purpose, but it cannot be said that it has not been provided in the Scheme that the objectionable user of the land in the area falling within the Scheme should be discontinued on the Scheme being put into force. In the first place, Regulation 2 does provide that the area included in the Scheme is intended mainly for the residential purpose, which means that all users of land falling in the area under the Scheme for nonresidential purposes had to be stopped. It cannot be said by any stretch of imagination that stacking of hay would be a user of the land for a residential purpose or that it is even an ancillary purpose to residence. There is thus a provision made in the Scheme for discontinuance of an objectional user of the land included in the Scheme. There is also a provision in Regulation 27 that no dangerous trade shall be allowed within the area of the Scheme. Stacking of hay in a residential area can amount to a dangerous trade as it involves risk to the residential area because if a stack of hay accidentally catches fire it is likely to prove dangerous to the residential houses in the area.
By a notice dated October 27, 1967, (Ex. 155) the Chief Officer of the Municipal Council, Nasik, had given a public notice by which he had asked the persons in the area included in the Scheme to discontinue stacking of hay etc. It is, therefore, not possible to accept the submission of Mr. Jahagirdar that because no provision has been made in the Scheme for the discontinuance of the objectionable user of the land, the previous user which was authorised could not become unauthorised merely on the Scheme being made final and being brought in force.
Turning to the submission of Mr. Abhyankar that as soon as the use becomes objectionable, the occupation of the land itself becomes unauthorised within the meaning of section 89(1) of the Act of 1966. Mr. Abhyankar has not pointed out any provision of law in support of his argument. On the contrary, if we were to accept his argument, we cannot rationally interpret section 89 (1) . That section speaks of ''any person'', who may be even the owner of the land. Now, take the case of the owner of the land. He is the owner of the old plot. He is using it for stacking hay. He is now allotted the reconstituted plot as owner. He continues with his prior use of the plot, i.e. for stacking hay. The use of the plot becomes objectionable because it is being used for non-residential purpose which is not permitted. Can it be said that the occupation of the reconstituted plot by the owner becomes unauthorised on the use becoming objectionable for which he is liable to be evicted summarily? The answer to that question must be given in the negative. On the argument of Mr. Abhyankar, on the use becoming objectionable, the occupation of the owner would also become unauthorised and he would be a person not entitled to occupy the final plot within the meaning of section 89 (1) of the Act of 1966 and would be liable to be summarily evicted. The Act does not obviously contemplate such a result. There is no provision in the Act as to what should happen to the final plot from which the owner is so evicted. The submission on behalf of the tenants is, therefore, acceptable that merely because the use becomes objectionable that cannot mean that the occupation also becomes unauthorised making the person in possession as one not entitled to occupy the final plot within the meaning of section 39 (1) . The objectionable or unauthorised user can at best be regarded as a breach or a contravention of the provisions of the Scheme for which, as provided in Regulation 36, a person can be prosecuted and on conviction suitably punished. Regulation 36 reads as under :
''''36. Any person who contravenes any of the provisions or regulations of the Scheme shall on conviction of such contravention be punishable with a fine which may extend to Rs. 1,000 and in the case of a continuing contravention with an additional fine which may extend to Rs. 50 for every day daring which such contravention continues after conviction or the first such contravention.
Defendants Nos. 3 to 13 could, therefore, be either asked to stop the objectionable user of the lands in their possession from the final plots or if they do not stop the unauthorised user of the lands action could be taken against them under Regulation 36. But they could not be summarily evicted u/s 89 (1) of the Act of 1966 on the ground that they are not entitled to occupy the lands.
Mr. Abhyankar has drawn our attention to clause (c) section 88 of the Act of 1966 which reads as under:
On and after the day on which a final scheme comes into force:
(a) - - -
(b) - - -
(c) the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final scheme.
Section 88 of the Act of 1966 is equivalent to section 53 of the Act of 1954 with the only exception that clause (c) was not there in section 53 But as pointed out by the Supreme Court in The Municipal Corporation of Greater Bombay v. The Advance Builders (India) Pvt. Ltd. 75 Bom. L R 355 (S C), section 53 of the Act of 1934 has to be read as if clause (c), as it is to be found in section 88 of the Act of 1966, was already there. In other words, in giving effect to the Final Scheme the Town Planning Officer under the Act of 1954 or the Planning Authority under the Act of 1966 are under a legal obligation to hand over possession of the final plots to the owners to whom they have been allotted in the Final Scheme.
The submission of Mr. Abhyankar, therefore, is that the handing over of possession of the final plots to the plaintiffs was a matter of giving effect to the Final Scheme. The plaintiffs had never been given possession of the final plots. Defendants Nos. 3 to 13 were in possession of the old plots and now in the reconstituted plots they are continuing in possession. Unless, therefore, defendants Nos. 3 to 13 are evicted from the final plots and the Planning Authority hands over possession of the final plots to the plaintiffs it cannot be said that effect has been given to the Final Scheme. Section 88(c) of the Act of 1966 casts a duty on the Planning Authority to hand over possession of the Final Plots to the owners to whom they are allotted in the Final Scheme as part of carrying into effect the Final Scheme. It is, therefore, for the Planning Authority to summarily evict defendants Nos. 3 to 13 from the final plots and hand over possession of those plots to the plaintiffs, Mr. Abhyankar says that the view he is propounding is supported by certain observations of the Supreme Court in Municipal Corporation v. Advance Builders (Supra).
In the case before the Supreme Court the scheme in question was the Bombay Town Planning Scheme, Santacruz VI covering an area of about 160 acres divided into two parts by the Ghodb under Road which ran from south to north. The eastern part comprised an area of about 54 acres. A part of this area belonged to N. J. Wadia Trust and a Receiver was appointed in respect of the trust property. Some unauthotised huts, sheds and stables had been built in this area and the whole of it was full of slums, the removal of which was one of the objects of introducing the Town Planning Scheme. It was so specifically stated in the Final Scheme. Under the Scheme, the part of land, which was in possession of the Receiver, became a part of the Scheme and, under the Scheme, a number of final plots were allotted to the Receiver. The Receiver transferred 41 final plots to the respondents in the appeal before the Supreme Court. The question before the Supreme Court raised was whether the Municipal Corporation, as the local authority under the Act of 1954, owed a duty to remove the unauthorised structures, even though those structures were on private final plots of the respondents. The Supreme Court answered the question in the affirmative and at page 359 of the report they made certain observations, which, according to Mr. Abhyankar, support the proposition which he has propounded. These observations are as under:
It is inherent in every town planning Scheme that titles are liable to be displaced and an owner may get a reconstituted plot which belonged, prior to the Final Scheme, to some other owner. In such a case, if the original plot belonging to ''A'' was not encumbered by any unauthorised huts and ''A'' is allotted in the Scheme reconstituted plot of another encumbered or littered over with unauthorised sheds and huts, would it be just to say that ''A'', who is to be put into possession, under the Scheme, of the reconstituted plot, should take legal action for the ejectment of the hutment dwellers ? For ought we know he may be non-suited on the ground of limitation or adverse possession. In any case, the Scheme will, on the one hand put an innocent owner to undeserved trouble and, on the other not achieve the object of removing the hutment-dwellers as speedily as possible, thus frustrating the very object of the town planning.
These observations, however, are not applicable to the facts of the present case. In the instant case, it is the case of the plaintiffs themselves that they had leased cut portions from the old plots to defendants Nos. 3 to 13 and they were their lawful tenants. The plaintiffs were thus on their own showing not in actual physical possession of those lands and they were only in symbolical possession through their tenants. It is also the case of the plaintiffs that on the Final Scheme being made and put in force defendants Nos. 3 to 13 continue to be in possession of the some portions from the reconstituted plots. Possession of the final plots has, therefore, been given to the plaintiffs on their own showing. Defendants Nos. 3 to 13 were in possession and are continuing in possession even after the Final Scheme was made and, therefore, through them the plaintiffs have been put in symbolical possession of the final plots. It is not a case of the kind where the plaintiffs were in actual physical possession of the old plots and they now find that some strangers are in possession of the reconstituted plots, so that the plaintiffs cannot be put in possession of those plots unless the strangers are evicted from the reconstituted plots. Defendants Nos. 3 to 13 were created tenants by the plaintiffs of the old plots and plaintiffs were in possession through them. In the reconstituted plots also the plaintiffs must be deemed to have been put in possession through their tenants and thus the Planning Authority can be said to have discharged its obligation as provided in clause (c) of section 88 of the Act of 1966 of handing over possession of the final plots to the owners to whom they are allotted in the Final Scheme.
There is another striking difference between the facts of the present-case and those in the case before the Supreme Court. In the case before the Supreme Court, the object of the Final Scheme was the construction of new roads, provision of public sites and the removal of slums. Note 11 attached to the Redistribution Statement under the Scheme directed that:
all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, shall be removed within one year from the date of the Final Scheme comes into force. Persons thus dishoused will be given a preference in the allotment of land or accommodation in Final Plot No. 16.
It was thus specifically provided in the Scheme that all huts, sheds, stables and temporary structures should be removed. That was going to dishouse certain persons, but an alternative provision was made to house them by allotting land or accommodation in another plot in the Final Scheme. It was, therefore, a part of the duty of the Planning Authority while enforcing the Scheme to remove huts, sheds, stables and other temporary structures, even though they stood on private lands. In the instant case, not only the Scheme did not provide that the lessees should be evicted but the old leases in respect of the old plots were specifically preserved under the Scheme in relation to the reconstituted plots. The observations quoted above, therefore, do not assist Mr. Abhyankar in support of the proposition which he has propounded.
In the result we hold that the plaintiffs were put in possession of the final plots as provided in clause (c) of section 88 of the Act of 1966 and defendants Nos. 3 to 13 are not persons not entitled to occupy the said plots within the meaning of section 39 (1) of the Act of 1966. The plaintiffs are, therefore, not entitled to a decree of mandatory injunction. Consequently they are also not entitled to the claim of compensation on the ground that the Municipal Council has not done anything to evict defendants Nos. 3 to 13 from the respective lands in the Final Plots.
Both the suits are therefore liable to be dismissed. Consequently, the appeal filed by the plaintiffs is also liable to be dismissed and the other five appeals must be allowed.
We thus allow First Appeals Nos. 299/73, 420/73 and 480/73 and dismiss the suit of the plaintiffs. We also dismiss First Appeal No. 266/73 by the plaintiffs. Since there has been only one hearing in the trial Court and this Court, the plaintiffs are directed to pay one set of costs to the original defendants Nos. 1 and 2 in the trial Court and also one set of costs in this Court as common costs in all the four appeals.
Plaintiffs will similarly pay another set of costs to defendants Nos. 3 to 13 in the trial Court and again in this Court as common costs in all the four appeals.
First Appeals Nos. 353/73 and 421/73 are both allowed and the plaintiffs'' suit stands dismissed. The plaintiffs will pay one set of costs to defendants Nos. 1 and 2 in the trial Court and another set jointly to defendants Nos. 3 to 7. In this Court, the plaintiffs will pay one set of costs to original defendants Nos. 1 and 2 as common costs in both the Appeals and another set of costs to original defendants No. 4 to 7 as common costs in both the appeals.