J.B. PARDIWALA, J.

1. With the consent of the learned counsel appearing for the respective parties, this First Appeal is taken up for final hearing.

2. This First Appeal under Section 96 of the Code of Civil Procedure is at the instance of the original defendant, calling in question the legality and validity of the judgment, order and decree passed by the City Civil Court, Ahmedabad, in the Civil Suit No.1404 of 1996 filed by the respondent herein-original plaintiff for specific performance of contract and monetary compensation by way of damages.

3. It appears from the materials on record that the suit filed by the respondent herein for specific performance and compensation came to be partly allowed. The civil court directed that as the appellant herein - Ahmedabad Municipal Corporation demolished the shop of the respondent herein for the purposes of road widening, an alternative space be provided to the respondent in accordance with the agreement in writing and shall pay compensation by way of damages at the rate of Rs.5,000/- per month from 5th January 1996 till the deposit of the entire amount. If the amount of compensation is calculated in accordance with the decree passed by the City Civil Court, then as on date, an amount of Rs.13 lac is to be paid by the Corporation to the respondent.

4. The facts giving rise to this First Appeal may be summarised as under :

1. The respondent herein filed a Regular Civil Suit No.1404 of 1996 in the City Civil Court, Ahmedabad, for a specific performance against the appellant therein–original defendant–Ahmedabad Municipal Corporation. The record indicates that as per the provisions contained in the Gujarat Town Planning and Urban Development Act, 1976 (herein after referred to as ‘the Act, 1976’), the Town Planning Scheme No.30 (Asarva North Extension) (herein after referred to as ‘the TP Scheme’) was framed by the competent authority. The TP Scheme in question was approved by the State Government with effect from 11.09.1979 and in view of the provisions of the Act, the TP scheme in question became the part of the Act. In view of the provisions contained in the Act, 1976, the defendant–Ahmedabad Municipal Corporation is under a statutory obligation to implement the TP scheme in consonance with the provisions of the Act, 1976, read with the Rules.

2. The record further indicates that one Amthiben Dahyabhai was the owner of the land bearing Survey No.566 of Asarva Ward City, Ahmedabad. The said survey number was given Original Plot No.146 under the TP scheme in question and in lieu of the Original Plot No.146, Final Plot No.239 was allotted in favour of the owner of the land. It needs to be noted here that the deducted portion which was subjected to deduction while allotting the Final Plot No.239, out of Original Plot No.146 was forming part of the Town Planning Road (‘TP road’, for short). The record further reveals that the occupation/construction of the plaintiff which was shown in yellow color at Mark-8 in the sketch (Exh.24) was forming part of the TP road. As per the provisions contained under Section 67 of the Act, 1976, once the Preliminary TP scheme is sanctioned, all lands required by the Appropriate Authority shall vest absolutely in the Appropriate Authority free from all encumbrances. In view of Section 68 of the Act, 1976 read with the Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (herein after referred to as ‘the Rules, 1979’), the defendant (appellant herein) Corporation is under an obligation to implement the sanctioned TP scheme and, therefore notice as contemplated under Section 68 of the Act, 1976 read with the Rule 33 of the Rules, was issued by the defendant Corporation to plaintiff on 21.04.1987 (Exh.24). The affected parties including the respondent herein–original plaintiff were directed to file their objections.

3. Pursuant to the said notice, the respondent herein–original plaintiff had filed his objections did 11.06.1987 and a persona