MAHARASHTRA STATE P.W.D. EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD. THROUGH ITS SECRETARYversusTHE PUNE MUNICIPAL CORPORATION THROUGH THE COMMISSIONER AND ANR

                                                                                   J-WP-6334-2015.odt


                      rajshree


                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                CIVIL APPELLATE JURISDICTION
                                                 WRIT PETITION NO.6334 OF 2015


                                 Maharashtra State PWD Employees CHS Ltd. ..        Petitioner
                                                  vs.
                                 The Pune Municipal Corporation & Anr.        ..    Respondents


                                 Mr.Girish Godbole, Senior Advocate a/w Mr.Shivraj Patne i/b
                                 Mr.Aditya Shirke for the Petitioner.
                                 Mr.Rajdeep Khadapkar for Respondent No.1-PMC.
                                 Mr.Surel Shah, Senior Advocate      i/b Mr.Shubham Shinde for
                                 Respondent No.2.


                                                        CORAM : BHARATI DANGRE &
                                                                ASHISH S. CHAVAN, JJ

                                                        DATE   :   7th SEPTEMBER 2026

                                 JUDGMENT (PER BHARATI DANGRE, J) :

                                 1    The Petition revolves around the powers exercised by the
                                 Commissioner, Pune Municipal Corporation under Section 205 of
                                 the Maharashtra Municipal Corporation Act (for short ‘MMC
                                 Act’), when it resolved to layout and make a new public street.
                                      The piece and parcel of land bearing Survey No. 38 and 39
                                 situated at Village Erandawane, District Pune is the subject
                                 property involved, of which the Petitioner, Maharashtra State
                                 PWD Employees CHS Ltd. is the owner alongwith the building/
                                 structure standing thereon.
             Digitally signed
RAJSHREE by RAJSHREE
KISHOR   KISHOR MORE
MORE     Date: 2026.09.08
         16:00:25 +0530




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     Survey No.37 H.No.1/1/2 of the same village          abuts the
northern boundary of the subject property and belongs to one Ajit
Giridharilal Nahar (Respondent No.2) of which he alleges to be
landlord and being the owner of the said property , it is at his
instance, the Corporation has acted.
     The Petition has a checkered history        and in an earlier
round when the Petitioner approached this Court with a
grievance about the exercise of power under Section 205 of the
MMC Act, by the Pune Municipal Corporation, the Division Bench
on 30/06/2017 examined the issue as to whether the impugned
Resolution passed by the Corporation desiring to convert a part
of the land held by the Petitioner into public street or a street for
public use and whether the exercise of the power was justiciable
and the Petitioner advanced the contention that the Resolution
is per se illegal as it provides for taking over the property of the
Petitioner without payment of any compensation and the specific
contention that the said action has been taken for the benefit of
the second Respondent, who has acquired the adjacent property
being the landlord. The submission advanced was very specific
that even assuming that a road can be constructed through the
land of the Petitioner, the same can only be done after acquiring
the requisite portion of the land in accordance with the provisions
of the MMC Act.
     The Pune Municipal Corporation adopted a stand that after
obtaining requisite undertaking and/or deposit from the private
Respondent as regards cost of acquisition of land, development of
road and compensation can be undertaken and be paid to the
Petitioner, shall take steps under the Act for acquisition of the

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said land for the purpose of road. It was emphatic statement of
the Corporation that it is vested with the power to acquire private
land for construction         of   a public street and        it cannot be
prevented from acquiring the said land.
        The counsel for the private Respondent, however, pointed
out the negotiations with the Petitioner/Society for grant of right
of way and a statement was specifically made that the Petitioner-
Society had received a sum of Rs.15,00,000/- from the second
Respondent and the access was very much needed as the
Petitioner-Society was a landlord and he had offered to pay the
Petitioner- Society the compensation payable in respect of the
land acquired for construction of public street.


2       In the light of the submissions advanced and in the wake of
the existing statutory scheme in form of Section 205 and 209 of
the MMC Act read with Section 77 to 79 of the MMC Act, an
inference was drawn that the Municipal Corporation can
authorize the Commissioner to make a new public street on
private land, if the owner of the private land has not consented
for making a public street, but recourse will have to be taken for
acquisition either by Section 77 or 78 of the MMC Act, as both
these     provisions     require    Municipal      Corporation      to    pay
compensation.
        On a careful analysis of the Resolution passed by the
Corporation , the Division Bench noted thus :-
    “13 We have carefully perused the impugned resolution of the first
    Respondent. The purport of the resolution is that the General Body
    authorised taking of action under Section 205 subject to condition that
    neither monetary compensation nor TDR/FSI will be given to the
    Petitioner. It specifies that only subject to this condition that a


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  permission has been granted to proceed under Section 205. Some
  argument was canvassed by the learned Counsel appearing for the
  second Respondent that at highest only that part of the resolution is
  illegal which provides that no compensation will be payable to the
  Petitioner. We do not agree with the said submission for the simple
  reason that the decision of the General Body is to grant consent for
  initiating action under Section 205 subject to condition that no
  compensation will be payable. There is no application of mind by the
  Municipal Corporation to the question whether Municipal Corporation
  can acquire the said land of the Petitioner by paying compensation to
  the Petitioner.

  14 As stated earlier, if a public street is to be made on a private
  property owned by a citizen, recourse will have to be taken to Section
  77 or Section 78 of the said Act. Both the sections provide for payment
  of compensation to the person whose land is required to be acquired for
  construction of a public street. In the present case, it is undisputed that
  the Petitioner is the owner of the said land. Therefore, the resolution
  amounts to depriving the Petitioner of its valuable property in
  contravention of right conferred by Article 300-A of the Constitution of
  India.”


     A stand was adopted by the Corporation in its Affidavit
stating   that    the     Corporation,       after    obtaining      requisite
undertaking and/or deposit from Respondent No.2 as regards the
cost of acquisition, development of road and compensation to be
paid to the Petitioner, will take steps under the MMC Act for
acquisition of the said land under the said road.
     However, the Court noted that nowhere in the Affidavit it
was stated that impugned Resolution has been rescinded or
modified and when it continues to operate on the date of the
order with     no compensation being paid to the Petitioner, the
stand that, compensation will be paid to the Petitioner, was
clearly contrary to the impugned General Body Resolution. Very
categorically the Court observed thus :-
  “ The resolution which is impugned in the petition does not say that
  acquisition will be initiated by paying compensation to the Petitioner
  and by taking undertaking from the second Respondent to pay the


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    compensation. The learned counsel appearing for the second
    Respondent stated that apart from depositing the amount, the second
    Respondent has given undertaking to the Municipal Corporation to pay
    a requisite amount towards the compensation.
    Therefore, in our considered opinion, the impugned decision/impugned
    resolution of the first Respondent Corporation is completely illegal and
    the same will have to be quashed and set aside.”


       As far as the deposit of the amount of Rs.15,00,000/- is
concerned, if the Petitioner had not abided by its alleged
assurance, the Court deemed it appropriate to permit the second
Respondent to initiate appropriate proceedings against the
Petitioner in accordance with law, either enforcing the alleged
assurance or for refund of Rs.15,00,000/-.


3      Being aggrieved by the said Judgment,                     Ajit Nahar
approached the Apex Court by filing Civil Appeal No. 4153 of
2022 (arising out of SLP (C) No.1160/2018).               On analysing the
facts and the arguments advanced and in specific the contention
on behalf of the Appellant that he had already parted with large
sum of money in the year 2014(Rs.15,00,000/-) and the
Cooperative Society had passed a Resolution resolving to accept
the request, however, the General Body did not approve                     the
same.
       In addition, the Appellant before the Apex Court invited
attention to Section 205 (a) and (b) and it was submitted that the
land was lying adjacent to each other and the only way out for the
Appellant was through the property of the first Respondent.
Attention of the Court was invited to the condition of lay out,
which was in existence since 1978 and it read thus :-



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       “For the purpose of proper circulation of road pattern and to have
    continuity of the water and drainage system and other service…. for
    the development of the adjacent land the PMC reserves the right to
    permit access and extension of the internal roads and services through
    the land under layout/sub-division.”

       The    aforesaid    condition     was,    therefore,    invoked        by
submitting that it would bind the Cooperative Society and on its
basis the Appellant is entitled to succeed.
       In short, it was         urged that the layout of the first
Respondent was         approved subject to the condition           and this
having been accepted the construction was carried out on its plot.
       A counter submission was advanced on behalf of the
Cooperative Society to the effect that it was only a right reserved
for ensuring proper circulation of road pattern and no way confer
any right on the Appellant.
       The Hon’ble Apex Court, therefore, deemed it appropriate
to remand the matter back to the High Court for determining the
following issues :-
    i. To consider the aspect relating to the imposition of condition for
    approving the lay out in the year 1978.
    ii. What will be impact of reservation in the year 1978 claimed by
    Respondent No.2 and the PMC on invocation of power under Section
    205 of the MMC Act.
    iii. The scope of exercise of discretion under Article 226 of the
    Constitution of India in favour of the Society.
    iv. The deposit of the amount of Rs.15,00,000/- in the year 2014 by
    Ajit Nahar though the Society had expressed its willingness to return
    the said amount within two months.
    v. In light of Section 205, whether it could be said that having regard
    to all that has happened the case could be treated as falling under
    Section 205(b) of the MMC Act.

4      With the aforesaid direction for reconsideration by the High
Court on remand, the impugned Judgment was set aside and the
matter was remitted to the High Court by order dated
18/05/2022.

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     It is in the wake of the aforesaid, the Writ Petition is placed
before us and on the pleadings being completed, we have taken up
the same for hearing.


5    The learned senior counsel Mr.Godbole would invite our
attention    to    the   Scheme   of   the   Maharashtra      Municipal
Corporation Act, which has defined the term ‘private street’,
‘public street’ as well as ‘street’ and our attention is also invited
to the provisions contained in Chapter XIV of the Act relating to
‘streets’ and in specific Section 202, 205 and 209 of the Statute.
     It is his submission that as per Section 202 all             streets
within the city being or which at any time become, public streets
vest in the Corporation and shall be under the control of the
Commissioner, that is the Corporation acquires ownership rights
for such property.
     According to him, in passing the impugned Resolution
No.505      on    23/12/2014   and     the   impugned     order    dated
15/06/2015, the PMC purportedly exercised power under Section
205(a) of the MMC Act and sanctioned a new public street upon
the Petitioner’s privately owned land and in specific the open
space of the said plot, by imposing a condition that, ‘no
compensation is liable to be paid’.
     It is his contention that Section 205 cannot be resorted to
by the Corporation without payment of compensation, and,
therefore, the action of passing of the Resolution            under the
impugned order is contrary to the Scheme of the MMC Act.
     By inviting our attention to Section 209 of the MMC Act, he
would submit that the Commissioner is empowered, subject to the

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provisions of Section 77 to 79, to acquire any land required for
opening of new public street or for widening or for extending any
existing public street, thus clearly indicating that whenever a
new public street is to be laid or existing public street has to be
widened or extended, for that purpose, the Commissioner shall
take recourse to the procedure of acquisition as provided under
Section 77 or 78 of the Act.
      By inviting our attention to Section 77 of the MMC Act,
Mr.Godbole would urge that the said provision deals with
acquisition of immovable property by Agreement with the owner
of the concerned property by the Commissioner, whereas, Section
78 is applicable when the Commissioner is unable to acquire the
land under Section 77, in which case the immovable property is
to be acquired as if such property is needed for public purpose,
within the meaning of Land Acquisition Act, 1894. In both the
contingencies, according to him, the provision contemplate
provision of compensation to the owner whose land is proposed
to be acquired .
      However, in the present case, the Petitioner being the owner
of the   subject property, if the PMC purport to make a public
street passing through its property, then it cannot be deprived
of its rights in the property without adequate compensation.
      Apart from this, his emphasis is on Section 205 which is
the power of the Commissioner to make a new public street only
subject to two stipulations viz. a) Layout and make new public
street and b) Agree with any person for making of the street for
public use through the land of such person, either entirely at his
expenses or partly at his expenses and partly at the expenses of

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the Corporation that such street, in completion, become the public
street and shall vest in the Corporation.
      It is the contention of the Petitioner that the Commissioner
has categorically refused to grant its assent for constructing
public road and therefore, there is no question of clause (b) being
attracted and, therefore, what remains       is the power     in the
Commissioner to lay down a new public street.


6     One additional submission of Mr.Godbole is that a public
street cannot be laid for the benefit of only one individual and for
acquiring      the land, the process must involve larger public
interest.
      As regards the condition imposed as a part of layout plan of
1978, it is the submission of Mr.Godbole that the said clause
empowers the PMC to allow passage of drainage or other lines
through the land in layout, but in no case does it justify opening of
a new public street and in any case the said clause do not operate
in isolation, and particularly, by bypassing the procedure laid
down under the MMC Act. In any case, according to him, the said
condition cannot be construed to grand unfettered and perpetual
right to the PMC       to enter upon to use and take over the
Petitioner’s private property, much less the right to construct a
‘public     street’ as defined in Section 2(5) of the MMC Act, by
exercising the power under Section 205 (a) though the Petitioner
who is the owner of the property has objected to the same and
that too without taking recourse to the procedure of acquiring the
said land.



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7    Mr. Godbole would also invite our attention to the Sale
Deed dated 06/10/2009 under which Respondent No.2 has
purchased the plot and according to him, in the Sale Deed the
Vendor has clearly agreed to grant access through his remaining
land to the purchaser, indicating that there was an easement of
right of way created in his favour from the property of          the
Kachares and once such contractual right of grant of easement
was created, remedy to invoke Section 205 of the MMC Act was
not available and the only remedy available to the second
Respondent was      to file Suit against the Vendors for seeking
access through their land and in any case , according to Mr.
Godbole there is an alternate access available to Ajit Nahar.


8    The learned counsel Mr.Khadapkar representing the PMC
would oppose to the reliefs sought in the Petition by submitting
that the layout condition       clearly contemplated that        the
Corporation would ensure access to the adjoining plot holder and
keeping this condition in mind, the Resolution was passed after
due consideration with the Committee constituted for the said
purpose with a specific remark that no FSI/TDR or any cash
component in compensation shall be made available.
     The learned counsel Mr.Khadapkar           would invite our
attention to Resolution No.505 , which permitted 6 mtr. wide
road to be laid and carved out with its boundaries being marked
as A, B and C , passing through Survey No.38 and 39, which has
housed the Maharashtra        State PWD Employees CHS to be
followed by in an order issued by the Municipal Commissioner on
15/06/2016 to the following effect :-

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    “In exercise of the powers vested u/s 205(1) of Maharashtra Municipal
    Corporation Act, I prescribe fresh regular line of street 6.00 M wide
    passing through the open space of the sanctioned Lay out of PWD
    Employee co-op Housing soc. ltd Erandawane s.no 38.39 for the
    property Erandawane s.no 37 H.No.1/1/2 CTS No. 149, with prior
    conditional approval of the General Body of the Pune Municipal
    Corporation vide its resolution No. 505 dt 23/12/2014.
    The Regular line of the street mentioned above is shown as A-B-C (अ-ब-
    क) in RED colour on the accompanying plan.
    Condition: No compensation for area under Road shall be paid.”


       The learned counsel would also rely upon                  a specific
statement made in the Affidavit filed by Prashant               Madhukar
Waghmare, the City Engineer working with the Corporation ,
were he categorically made a statement to the following effect :-
    “I say that BMC after obtaining the requisite undertaking and /or
    deposit from Respondent No.2 as regards the cost of acquisition,
    development of road and the compensation to be paid to the Petitioner
    will take steps under the MMC Act for acquisition of the said land.
    Thus having regard to the same and further considering that the
    impugned order is made under Section 205 of the Act empowering the
    Commissioner to make the new public street, the contention of the
    Petitioner that the same is in contravention of Article 300A of the
    Constitution of India is misconceived.”


       In short, the submission advanced on behalf of the
Corporation is to the effect that there can be no denial that for
laying down the public street , the land will have to be acquired
and the procedure contemplated under Section 77, 78 and 79
shall be followed , but according to the learned counsel                 the
declaration of the public street is the starting point,               which
decision would be taken ahead by acquiring the said land and in
the course of it the procedure prescribed for acquisition and
payment of compensation shall be adhered to.


9      The learned senior counsel Mr. Surel Shah representing


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Respondent No.2 has also laid his emphasis upon the condition
of the layout and he would request the Court to decide the issue,
in the light of the order passed by the Apex Court when the Apex
Court indicated that on remand, the High Court shall consider the
said condition of layout.
     It is also his submission that the Apex Court directed to
consider the impact of the reservation in the year 1978 claimed
by his client and what is its impact as regards the provision in
form of Section 205 of the MMC Act.
     Apart form this, he would submit that though the
cooperative society had adopted a stand that the Appellant had
an alternate way, the Apex Court directed this issue to be
determined in the wake of the discretionary jurisdiction
conferred under Article 226 of the Constitution of India.
     According to Mr. Shah, on remand the matter will have to be
examined in the light of the order passed by the Apex Court as in
the earlier round when the Division Bench of this court           on
30/06/2017 had allowed the Petition, it did not consider the
condition of the layout which was brought forth at the time when
the matter was before the Hon’ble Apex Court.


10   In light of the aforesaid contentions      the chronology of
events which emerges before us are outlined below :
     Respondent No.2 purchased the adjoining plot by a
registered Sale Deed on 06/10/2009 and in the year 2011 made
handwritten Application to the Petitioner requesting for grant of
access through the property. He also addressed a communication
to the Executive Engineer, Pune Municipal Corporation that he do

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not have access to the approach road and made a request to make
the land accessible.
        Pursuant thereto, the Deputy Engineer (Building Control)
PMC on 01/06/2012 informed the Petitioner-Society to submit its
objection/consent for providing approach road through its land,
which was refused by the Petitioner, as it seriously raised an
objection     for construction of public road upon the subject
property.
        The aforesaid sequence of events was followed by the
Resolution being passed by the City Improvement Committee on
08/02/2013 resolving to solicit the opinion of         the Municipal
Commissioner on the issue of the access road.
        Though the Managing Committee of the Petitioner-Society
on 28/12/2013 resolved, that the offer of Respondent No.2 to pay
premium of Rs.15,00,000/- for grant of proposed access should
be accepted     and requisite lease deed be executed,         the said
Resolution required an approval from the Special General Body
meeting (SGM) and on 02/02/2014, the SGM of the Petitioner-
Society rejected the same after due deliberation.
        Mr.Ajit Nahar, accepting the said Resolution by his letter
dated 05/02/2014, requested the Petitioner-Society to refund the
money paid by him.         However, the said money could not be
refunded as the     Administrator came to be appointed          on the
Petitioner-Society to look after its affairs.
        In the meantime, the City Engineer, by his communication
dated    04/07/2014    sought    the   opinion   of   the   Committee
constituted for consideration of the cases for making road/street
under Section 205 of the MMC Act and the Committee, in its

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meeting held on 19/07/2014 gave favourable opinion for laying
road by exercising the power under Section 205 of the MMC Act.
It was also opined that in lieu of the same the PMC should not
give FSI/TDR or monetary compensation.
      The journey of the said proposal progressed and the
proposal for access road was, thereafter, forwarded        by the
Additional Commissioner to Municipal Secretary for placing
before the General Body of the Corporation for its approval and
the General Body by passing Resolution No.505                dated
23/12/2014 resolved to approve making of the new public street
upon the subject property       belonging to the Petitioner      by
exercising the power available under the MMC Act, with a
direction that no monetary compensation or compensation by
way of FSI/TDR shall be paid to the owner. It is this order, which
is impugned in the present Petition.
      The Petitioner raised an objection with the PMC about the
access      being granted to the private Respondent through its
property and requested for a hearing. However, pursuant to the
impugned Resolution passed, the Commissioner of PMC exercised
the power under Section 205 on 15/06/2015 and passed the
impugned Office Order, prescribing 6 meter wide ‘New public
street’ upon the open space in the subject property         with a
condition that ‘no compensation for the area under the road shall
be paid’.


11    This chronology will have to be appreciated in the light of
the statutory scheme of the Maharashtra Municipal Corporation
Act . The said enactment has defined the term ‘land’ in Section

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2(30) to the following effect :-
        “Land” includes land which is being built upon or covered
with water, benefits to arise out of land, things attached to the
earth or permanently fastened to anything attached to the earth
and rights created by legislative enactment over any street.
        Section 2(47) has defined “Private street” to mean a street
which is not a public street.
        Section 2(52) has defined the term “Public street’ to mean
any street, heretofore levelled, paved, metalled, channelled,
sewered or repaired out of municipal or other public fund, or
which under the provisions of Section 224 is declared to be, or
under any other provision of this Act becomes, a public street.
        Similarly      another      definition     which      warrant       our
consideration is Section 2(63), which has defined “street”.
        Another relevant provision in the statute              is Section 66
which provide for the matters which may be provided by the
Corporation at its discretion and this include particularly sub-
section (34), which reads thus :-
     “66.       Matters which may be provided for by Corporation at its
     discretion.
     ….
     (34)laying out whether in areas previously built upon or not, new
     public streets and acquiring land for that purpose and land required for
     the construction of buildings or cartilages thereof to abut on such
     street or streets.”


12      In the Scheme of the enactment, Chapter XIV pertains to
“Streets” “Construction, Maintenance and Improvement of
Streets” and the relevant provisions are Section 202, 203 and
205, which we deem appropriate to reproduce for the sake of
convenience.

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  202. Vesting of public streets in Corporation.
  All streets within the City being, or which at any time become, public
  streets, except streets, which on the appointed day vested in the
  [Government] or which after the said day may be constructed and
  maintained by an authority other than the Corporation, and the
  pavements, stones and other materials thereof shall vest in the
  Corporation and be under the control of the Commissioner.

  203. Power of Commissioner in respect of public streets.
  (1) The Commissioner shall from time to time cause all public streets
  vested in the Corporation to be levelled, metalled or paved, channelled,
  altered and repaired, as occasion shall require, and may also from time
  to time widen. extend or otherwise improve any such street or cause
  the soil thereof to be raised, lowered or altered and may place and keep
  in repair fences and posts for the safety of pedestrians:
  Provided that no widening, extension or other improvement of a public
  street, the aggregate cost of which will exceed five thousand rupees or
  such higher amount as the Corporation may from time to time fix shall
  be undertaken by the Commissioner unless or until such undertaking
  has been authorised by the Corporation.
  (2) With the sanction of the Corporation, the Commissioner may
  permanently close the whole or any part of a public street vested in the
  Corporation:
  Provided that such sanction of the Corporation shall not be given
  unless, one month at least before the meeting at which the matter is
  decided, a notice signed by the Commissioner has been put up in the
  street or part of a street which it is proposed to close, informing the
  residents of the said proposal, not until the objections to the said
  proposal, if any, made in writing at any time before the day of the said
  meeting have been received and considered by the Corporation.

  205. Power to make new public streets.
  The Commissioner, when authorised by the Corporation in this behalf,
  may at any time-
  (a) lay out and make a new public street;
  (b) agree with any person for the making of a street for public use
  through the land of such person, either entirely at the expense of such
  person or partly at the expense of such person and partly at the
  expense of the Corporation, and that such street shall become, on
  completion, a public street, which shall vest in the Corporation;
  (c) construct bridges and sub-ways;
  (d) divert or turn an existing public street vested in the Corporation or
  a portion thereof.


     Another relevant provision is Section 209 which is which
the power to acquire premises for improvement of public streets,

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the power vested in the Commissioner, to be exercised, subject to
the provisions of Section 77, 78, and 79.
     “209. Power to acquire premises for improvement of public streets.
     (1) The Commissioner may, subject to the provisions of sections 77, 78
     and 79,-
     (a) acquire any land required for the purpose of opening, widening,
     extending, diverting or otherwise improving any public street, bridge
     or sub-way or of making any new public street, bridge or sub-way and
     the buildings, if any, standing upon such land;
     (b) acquire in addition to the said land and the buildings, if any.
     standing thereupon, all such land with the buildings, if any, standing
     thereupon, as it shall seem expedient for the Corporation to acquire
     outside of the regular line, or of the intended regular line, of such
     street;
     (c) lease, sell or otherwise dispose of any land or building purchased
     under clause (b).
     (2) The acquisition of land for providing, extending or improving a
     place for the parking of vehicles shall be deemed to be acquisition of
     land for the purpose of providing, extending or improving a public
     street.
     (3) Any conveyance of land or of a building under clause (c) of sub-
     section (1) may comprise such conditions as the Commissioner thinks
     fit, as to the removal of existing building, the description of new
     building to be erected. the period within which such new building shall
     be completed and other such matters.


13      In the light of the statutory scheme, when we have
examined the chronology of events , it appear to us with clarity
that     the Petitioner is the owner of Survey No.38 and 39,
Bharatkunj Vasahat in which the Petitioner has constructed a
building and at the relevant time, the municipal layout which was
prepared and sanctioned showed various open lands, developed
plots in and around the suit property. The Petitioner has left
certain portion of its plot as            compulsory ‘open space’              as
contemplated by the layout plan and surrounded its property by a
wall for securing the property as well as maintaining the privacy
of the members of the Society and the open space was put to use
as children playground and a small community                    hall.     The

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property is in exclusive use and occupation of the members of the
Petitioner Society and being guarded by construction of a wall.
      To the northern side of the Petitioner’s property            is
property bearing survey No.37/1/1/2, CS        No.149, which      the
private Respondent claim to have purchased in or around 2009.
The Petitioner has placed before us a copy of the layout and the
photos of the actual site to give us an idea about the exact location
of the property of Mr. Ajit Nahar.
      Upon purchase of the property, at the request of Ajit
Nahar,the Managing Committee of the Petitioner            agreed to
accept his offer of Rs.15,00,000/- for providing him access road
by allowing     a requisite Lease Deed to be executed, however,
though the Managing Committee passed the said Resolution, it did
not   receive approval of     the special general body, as it was
specifically turned down.
      Mr. Godbole has no difficulty in continuing with the
statement   which    is   consistent with his stand in the earlier
round of litigation, that the said amount can be returned to
Respondent No.2 having been accepted in the year 2014 and,
therefore, we do not intend to go any further on the said proposal
as under Section 205(b), the Commissioner is authorized to make
a new public street in consensus with the person who has agreed
for making of the street for public use through his land, subject to
the stipulations contemplated therein and upon such street being
completed, shall acquire the status of ‘public street’. Since the
stand of the Petitioner from the very beginning was to oppose the
laying of ‘public street’ through its own property, thereby causing
reduction in its open space and this being done without granting

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any benefit of TDR/FSI or compensation, and we do not assume
that the Petitioner society ever agreed for the arrangement of
providing access to Ajit Nahar without payment of compensation
and at this stage, we deem it appropriate not to carry forward this
argument advanced on behalf of Mr.Shah.


14   The most relevant consideration for us is the observation of
the Hon’ble Apex Court in light of the clause being included as a
condition of layout in the year 1978.      On reading of the said
clause, we must note that though the Apex Court had expressed
that it is a sort of reservation, but on reading of the said clause,
we could find that it is a condition subject to which the layout of
the Petitioner Society was sanctioned.
     As the Hon’ble Apex Court had directed the High Court to
determine impact of this clause, on its careful reading, we must
note that it is one of the stipulation subject to which the layout
was sanctioned and the condition imposed is, that for proper
circulation of the road pattern and to have continuity of water
and drainage system and other services as well as for the
development of adjacent lands, the PMC had a right to permit
access and also extension of the internal roads and services
through the land under the layout/sub-division that is of the Co-
operative Society.
     There is no quarrel about the fact that by virtue of the said
clause, the PMC had reserved its right to allow         access and
extension of the internal roads and services from the layout of
the Society,   but    it had a limited purpose i.e. for proper
circulation of road pattern so as to have continuity of water and

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drainage system and other services. However, in our considered
view the said clause do not accrue to the benefit of any other
third party landholder and in any case at this stage, when the
layout is all developed and the land through which the public road
is attempted to be laid, is a portion of the open space of the
Petitioner-Society which it is mandatory for it to keep open for
all time, as per the Development Control Regulations as well as
the norms prescribed by the         PMC, we do not construe this
condition as a reservation.    Reservation in the Development Plan
has   definitely   a   different   connotation   and    the   aforesaid
stipulation is only a condition of layout , but in any case, it do not
necessarily lead to a conclusion that when the PMC reserve its
right to permit access and extension of the internal road and
services to the land of the Petitioner-Society, it must do it free of
cost or without granting any TDR/FSI in lieu of compensation.
      We must, therefore, declare that the condition stipulated do
not amount to any sort of reservation in favour of Mr.Ajit Nahar
or for that mater any other adjacent plot holder.


15    Coming to the recourse of the Corporation to Section 205 of
the Act , we must note that as per Chapter XIV, all streets within
the city being or which at any time become public streets, shall
vest in the Corporation and shall be under the control of the
Commissioner.      The Commissioner is specifically empowered to
cause all public streets vested in the Corporation to be levelled,
paved, metalled, channelled, sewered or repaired to ensure
proper maintenance.



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      Section 205    is the power of the Commissioner on being
authorized by the Corporation, or on its behalf to layout and
make a new public street.       The said power    also extend to
construction of bridges and subways, diversion or turn on
existing public street or a portion thereof.
      This power of the Commissioner is permitted to be exercised
only upon authorization by the Corporation and we find that upon
Resolution No.505 being passed, taking a decision to demarcate
certain portion of the Petitioner-Society’s land to be a public
street, the Commissioner thereafter issued a formal order        on
15/06/2015 in exercise of the power vested under sub-section (a)
of Section 205 of the MMC Act, prescribing that a regular line of
street 6.00 meter wide passing through the open space of the
sanctioned layout of PWD Employees CHS, Survey No.38, 39, for
the property at Survey No.37 H. NO.1/1/2 CTS No.149 with the
prior conditional approval of the General Body of PMC vide its
Resolution No.505 dated 23/12/2014.
      The office order also declared that the regular line of the
street mentioned above is shown as A-B-C in red colour on the
accompanying plan, with a condition imposed                that, ‘no
compensation for the area under the road shall be paid’.


16    We have no difficulty in     recognizing the power of the
Commissioner to acquire the premises for improvement of public
street, and      the learned counsel for the Corporation has
specifically   conceded to the position in law to the effect that
before the road is laid and made a new ‘public street’ under
Section 205 , the mechanism prescribed under Section 209 must

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precede it unless there exist a stipulation as contemplated in
clause (b) of Section 205 i.e. a person agreeing with any person
for the making of the street for public use through his land, which
shall be entirely at the expense of the person, or partly at the
expense of the person or the expense of the Corporation and on
completion such a public street shall vest in the corporation.
     However, as we have already concluded upon the aspect
that the amount of Rs.15,00,000/- which was deposited by Mr.
Ajit Nahar   which the Petitioner-Society has fiercely resisted
throughout the proceedings and in fact the Special General Body
itself did not approve the Resolution adopted by the Managing
Committee, for us the contingency stipulated in clause (b) has no
meaning.


17   The only recourse, that remains now available to the
Commissioner acquiring the land required for the purpose of
opening a new public street and for this purpose, it is expedient
for the Corporation to acquire     the said land in the manner
prescribed in Section 77, 78 and 79.
     Section 77    has set out the procedure for acquisition of
immovable property,      which authorize the Commissioner to
acquire the property on behalf of the Corporation by Agreement
on such terms and at such rates or prices or rates,        which is
approved by the Standing Committee. If, however, the property
could not be acquired by an Agreement, and if it is required for
public purpose,    in such case, upon an      Application for the
Commissioner made         with the approval of the Standing
Committee and subject to the provisions of the Act,              the

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proceedings shall be undertaken for providing the same on behalf
of the Corporation, if such property or easement land was need
for public purpose within the meaning of the Land Acquisition
Act.
       However, this provision is accompanied with a provision for
payment     of amount of compensation to be awarded and sub-
section (3) of Section 78 clearly contemplate that the amount of
compensation to be awarded and all other charges incurred in the
acquisition of any such property, shall subject to other provisions
of the Act, be forthwith paid by the Commissioner, and thereafter,
the property shall vest in the Corporation.
       Another mode by which the property can be acquired is
stipulated in Section 79 which deals with disposal of property
either by sale, letting out or hire, but we are not concerned here
with the said provision.


18     As the Corporation is conscious of the fact and in fact it has
made an Affidavit on oath to the effect that the property will have
to be acquired, as it belongs to the Petitioner-Society and
necessary procedure will have to be followed, but the insistence of
the    Corporation   that   the   Resolution/declaration    by    the
Commissioner      as public street must    continue to govern the
property, as it is only when the Corporation has decided to
declare it as ‘Public street’, the procedure of acquisition shall
follow.
       We do not     agree with Mr.Shah or the learned counsel
Mr.Khadapkar on this submission.



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        A reading of the Scheme contained in Chapter XIV would
make it evidently clear that        though it is the power in the
Commissioner to layout and make new public street, if this is
passing through a property of any individual and like in the
present case the property in possession of the Petitioner-Society,
then the Corporation is left with no other alternative          but to
acquire the property by following the procedure under Section
77/78 and it is even open for the Petitioner Society to contest the
claim    of   ‘public purpose’ as upon the Corporation making a
proposal to the State Government , subject to it being satisfied
that the acquisition is for a      public purpose as contemplated
under Land Acquisition Act, the procedure for acquisition shall
be initiated.
        It is too early for us to determine as to what shall be the
objection raised by the Petitioner-Society and what stand the
Corporation     will adopt in demonstrating that it is a public
purpose, as it would depend upon how many people would have
access to the said street or it is only to be constructed for the
benefit of Respondent No.2, as according to the provision of the
Act, ‘public street’ is definitely distinct from ‘private street’ and it
is defined in the Statute to mean any street, which is levelled,
paved, metalled, channelled, sewered or repaired                out of
municipal or other public fund or which under the provisions
under Section 224 is declared to be a ‘public street’, definitely
connoting that public has access to the said street.
        Therefore, in our view, it is not for us to determine as to
whether the contention of the Corporation that it is a ‘Public
street’ shall be accepted and we deem it appropriate to permit

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the Corporation to initiate steps for acquiring the land which it
proposes to declare as public street, by identifying the same and
forwarding proposal to the State Government and it is only upon
acquisition and payment of the necessary compensation/benefit
either in form of TDR/FSI, the Petitioner should be divested of the
property which is in its possession and which forms part of its
open space.
        Applying the principle of ‘eminent domain’,              if the State
Government is of the view that the property needs to be acquired
for a larger public good, it is in the light of the decision of the Apex
Court in Bernard Francis Joseph & Ors. vs. Government of
Karnataka & Ors.1 , the land may be acquired, but after paying
the necessary compensation.


19      Mr. Godbole has also relied upon the decision of Apex court
in Kolkata Municipal Corporation & Anr. vs. Bimal Kumar Shah
& Ors.2      where with reference to Section 352 of the Calcutta
Municipal Corporation Act , it was held that the power only allow
the Municipal Commissioner to identify the land required for
streets/parks and the use of the word ‘may acquire’ in Section
352 does not         constitute the statutory power           of compulsory
acquisition and the compulsory acquisition must proceed only
under Section 527 of the enactment and relevant observation of
the Apex Court in para 35 and 36 reads to the following effect :-


     “35. Returning to the legal submissions of the counsel for the appellant
     Corporation, as we have noticed that Section 352 does not provide for
     any procedure whatsoever, we reject the contention that it
1 (2025) 7 SCC 580
2 (2024)10 SCC 533

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     contemplates the power of acquisition. We have already held that
     Section 352 is only intended to enable the Municipal Commissioner to
     decide whether a land is to be acquired for public purpose. The power of
     acquisition is in fact vested with the State under Section 537 and it will
     exercise it, in its own discretion, whenever the Municipal
     Commissioner makes an application to that effect. We have also agreed
     with the decision of the High Court that Section 363 is not a provision
     for compensation for compulsory acquisition. In this context, we have
     also held that a valid power of acquisition coupled with the provision
     for fair compensation by itself would not complete and exhaust the
     power and process of acquisition. Prescription of the necessary
     procedures, before depriving a person of his property is an integral
     part of the "authority of law", under Article 300-A and, Section 352 of
     the Act contemplates no procedure whatsoever.
     36. We are not referring to the detailed facts of the case involving
     multiple rounds of litigation where the respondents have taken
     inconsistent stands about the ownership and acquisition of the
     property. There is no doubt in our mind that the exercise of the
     power is illegal, illegitimate and has caused great difficulty to the
     respondent land-bearer.”

20      From the stand adopted by the Respondent-Corporation in
their Affidavit, it can be discerned that even the Corporation is
conscious of the fact that it will have to acquire the land of the
Petitioner-Society for the purpose of making a ‘New public street’.
The power exercised by the Commissioner, upon being authorized
by the Corporation would require acquisition of the land in terms
of Section 78 of the MMC Act, under which                     the land can be
acquired for a public purpose, within the meaning of the Land
Acquisition Act, 1894. The only point of difference, which the
Corporation want to press into service is, that the ‘Public street’
having been once declared the procedure will follow and                           in
contrast the contention of the Petitioner is, it is only after
acquisition of the land, the power under Section 205 of the MMC
Act shall be exercised and it shall be declared as a ‘Public street’
by the Commissioner.


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21    We find ourselves to be in agreement with the contention on
behalf of the Petitioner-Society and this we infer on the basis of
the provisions contained in Chapter XIV of the MMC Act, when
the Commissioner on being authorized by the Corporation                  is
empowered to layout and make a ‘New public street’ , but this
definitely contemplate acquisition of the land, since it belong to
the Petitioner-Society and it is part of its open space and is
intended to be acquired for the purpose of providing access to
the private Respondent.      Since the Corporation is also agreeable
that the land deserve to be acquired before it is put to use as
‘Public street’ and since we upheld the contention advanced on
behalf of the Petitioner-Society, we deem it appropriate to set
aside the decision of the Corporation to declare the land of the
Petitioner-Society as     ‘Public street’    and this being      done by
passing Resolution No. 505         dated 23/12/2014 declaring the
property as ‘Public road’ under Section 205 of the MMC Act.
Consequently,    the    Office   Order    issued   by    the   Municipal
Commissioner on 15/06/2015, thereby demarcating the regular
line of street passing through the open space of the sanctioned
layout of the Petitioner , is also quashed and set aside.


      However, we permit the Pune Municipal Corporation to take
such appropriate steps       on the Application         of Mr.Ajit Nahar
seeking   access to his property         i.e. Survey No.37/1/1/2, CTS
No.149, and we direct that the said request shall be considered
subject to ensuring compliance of the procedural formalities to be
followed before the access road is treated as ‘Public street’ and
power under Section 205 read with Section 209 of the MMC Act,

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shall be strictly exercised subject to the provisions of the MMC
Act.


22     In light of the remand order passed by the Hon’ble Supreme
Court, we declare that merely because of the layout condition
introduced in the year 1978, Respondent No.2 is not entitled to
have an access without the Corporation following the due process
of law, which include payment of compensation, which shall be
determined by the State Government, when it arrives at a
conclusion that granting access would serve the public purpose.
       The amount of Rs.15,00,000/- which is deposited with the
Petitioner-Society is directed to be refunded to Respondent No.1
Ajit Nahar, with interest at the rate of 6% p.a. and we expect this
amount to be refunded within a period of six weeks from today.
       Writ Petition is made absolute in the aforesaid terms.




[ASHISH S. CHAVAN, J.]                   [BHARATI DANGRE, J.]




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