( 1 ) DRAFT amendment granted in Special Civil Application No. 12363 of 2006.

( 2 ) RULE. Mr. P. G. Desai, learned counsel for the Corporation waives notice of rule for the respondents. With the consent of the learned advocates appearing for both the sides, the matters are finally heard today. As the issue concerned in both the petitions is common, they are being considered by this common judgment.

( 3 ) THE question which arises for consideration of this Court is as to whether the Corporation can take away or demand the possession of the land of the ownership of the society for laying down public street without following the procedure of acquisition either under Section 77 or under Section 78 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as `the Act. ).

( 4 ) THE short facts for the consideration of the aforesaid point are as under :

"the petitioners are societies having the land situated at the respective places at Surat. It is not in dispute that for the portion of the land belonging to the petitioners societies, the Corporation has passed the resolution for laying down of the public streets and such resolution came to be passed as back as in the year 1999 and laying down of such public streets was pertaining to 114 public streets in city of Surat which included the road/public street passing through the land of the societies of both the petitioners. The Corporation issued notices to the concerned petitioners societies for removal of the compound wall made on the boundary of the land of the petitioners so as to make it available for its utilization to the public as if the public street and such aspect is also not in dispute. When the Corporation intimated to both the petitioners for taking over of the possession of the land belonging to the society included in the public street including by removal of the construction of compound wall, the petitioners have approached to this Court by preferring the present petitions. "

( 5 ) I have heard Mr. Sanjanwala, learned counsel appearing for the petitioners in both the petitions and Mr. P. G. Desai, learned counsel appearing for the respondent ?

Corporation and its officers.

( 6 ) MR. SANJANWALA, learned counsel for the petitioners contended that even if a public street is laid down by the Corporation in purported exercise of powers under Section 205 of the Act read with Section 209 of the Act, it is required for the Corporation to follow the procedure of acquisition of the land either under Section 77 or Section 78 of the Act. Since such procedure is not followed, the Corporation cannot take possession of the land belonging to the petitioners ?societies nor the compound wall over the said land constructed by the petitioners societies can be removed. He submitted that, therefore, the action of the Corporation is without there being any authority under the law and without following mandatory procedure.

( 7 ) MR. DESAI, learned counsel appearing for the Corporation, by relying upon the affidavit-in-reply filed in the petitions, contended inter alia that the Corporation vide resolution dated 22. 1. 1999 authorized the Commissioner for laying down of the public street in exercise of the power under Section 205 of the Act. It has been further submitted that because of the traffic problem, the Corporation is constrained to exercise power under Section 205 of the Act in the interest of general public of the city of Surat and it is also submitted that though under the T. P. Scheme, the said road was not proposed but in view of the traffic problem in the said area, the Corporation is compelled to exercise the powers under Section 205 of the Act. Mr. Desai is unable to show this Court as to whether any procedure is followed for acquisition of the land by the Corporation either under Section 77 or Section 78 of the Act.

( 8 ) IT is an admitted position that the Corporation has exercised the power for laying down of the new public street under Section 205 of

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