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Judgment
Hardas P.V., J.—By this petition under Article 226 of the Constitution of India the petitioners have prayed for quashing and setting aside order dated 7th March, 2007 passed by respondent No. 2 - Director of Town Planning, Maharashtra State, Pune and has also prayed for declaring that the reservation No. 1 for open space in the development plan of respondent No. 2 Municipal Council, Georai has lapsed.
Such of the facts as are necessary for the decision of this petition may briefly be stated thus:
The petitioners claim to be owners and possessors of agricultural land at Survey No. 12 of Georai (town), District Beed, which came to be designated as reservation No. 1 (open space) in the development plan of respondent No. 3 Municipal Council, Georai and which plan came to be finalised by respondent No. 2 Director of Town Planning, Pune by notification dated 31st December, 1997. Since the date of reservation no concrete and effective steps had been initiated for acquisition of the said land by the Municipal Council. The petitioners, therefore, accordingly issued a purchase notice to respondents No. 1 to 3 on 10th October, 2003. According to the petitioners, the respondent No. 2 after making necessary inquiries confirmed the purchase notice by his order dated 31st March, 2004. On 28th March, 2005 the Chief Officer of respondent No. 3 Municipal Council forwarded a letter requesting to initiate acquisition proceedings for the acquisition of the land of the petitioners which was designated as reservation No. 1. However, on 29th March, 2005 the general body of respondent No. 3 Council, considering its financial position resolved not to proceed with the acquisition of the land of the petitioners and accordingly a resolution dated 29th March, 2005 came to be passed. Meanwhile, the Collector by his communication dated 9th May, 2005 refused to act on an incomplete proposal and referred the proposal of the'' Municipal Council back to the Municipal Council. According to the petitioners, even today no fresh proposal is either forwarded by the Municipal Council nor is pending consideration with the Collector. In October, 2005 the petitioners applied for permission for construction by submitting the lay out plan with the requisite documents. However, the proposal of the petitioner came to be rejected by the Chief Officer of respondent No. 3 Council on the ground that the land of the petitioners was designated as reservation No. 1. The petitioner challenged the order of the Chief Officer by filing appeal u/s 47 of the Maharashtra Regional and Town Planning Act, 1966. Respondent No. 2 Director of Town Planning, Maharashtra State, Pune rejected the appeal of the petitioner by his order dated 7th March, 2007. Request of the petitioner for review of the judgment also came to be dismissed by order dated 24th April, 2007.
On notice being issued to the respondents, respondents No. 1 and 2 have filed their affidavit in reply. In the affidavit in reply it is stated that the State of Maharashtra is competent authority to grant approval to the development plan and accordingly the State had approved the development plan. It is further stated in paragraph 3 that the Director of Town Planning is empowered to confirm the purchase notice u/s 49 of the Maharashtra Regional and Town Planning Act and accordingly the purchase notice issued by the petitioner came to be confirmed by respondent No. 2. It is further stated in the affidavit in reply that the Collector, Beed had informed respondent No. 2 that the Municipal Council, Georai had decided to withdraw the acquisition proposal by its resolution dated 29th March, 2005 but further action in that regard had not been taken by the Chief Officer of Municipal Council, Georai. It is stated that therefore, the action for cancellation of the said resolution u/s 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 had not been taken by the Collector, Beed. Paragraph 4 deals with the appeal preferred by the petitioners. It is stated that since the acquisition proposal had been submitted to the Collector within the stipulated period of one year from the confirmation of purchase notice, the appeal of the petitioners came to be dismissed.
Respondent No. 3 Municipal Council, Georai has filed its affidavit in reply. In the affidavit in reply they have denied not to have taken any steps for acquiring the land. At paragraph 5 of the affidavit in reply it is stated that on 29th March, 2005 in the meeting of the general body of the Municipal Council, the subject of acquisition and the purchase notice was discussed and looking to the huge cost of the acquisition, it was resolved that reservation of site No. 1 be dereserved from the development plan and the land be made available for development of residential area. It is stated that on account of financial constraints the general body of respondent No. 3 Municipal Council has passed the aforesaid resolution of dereservation. It is further stated that the resolution was communicated to the Collector by the Chief Officer on 13th. April, 2005.
From the narration of the facts referred to above, it is abundantly clear that in the development plan the land of the petitioners was designated as reservation No. 1 for open space. No effective steps for acquisition of the said land had been initiated by respondent No. 3. Initially respondent No. 3 Municipal Council had forwarded a proposal to the Collector for acquisition of the said land. The proposal undoubtedly was submitted within the period but the Municipal Council thereafter passed a resolution, which is undisputed, for dereservation of the said site as the financial position of the Municipal Council did not permit it to go ahead with the acquisition. In the light of the aforesaid facts, it is undisputed that the Municipal Council have no funds to proceed with the acquisition and has not taken any concrete steps and in fact has expressed its inability to proceed with the acquisition, though a proposal had initially been submitted. In the light of that, therefore, we have no hesitation to come to the conclusion that the reservation in the development plan pertaining to the land of the petitioners has lapsed. In the background of the fact that we have held that the reservation in the development plan relating to the land of the petitioners has lapsed, the impugned orders passed in the appeal of the petitioners, therefore,, are unsustainable.
In the light thereof, therefore, this petition is allowed and the impugned orders in appeal are hereby quashed and set aside. It is held that the reservation of the land of the petitioners designated as reservation No. 1 (open space) has lapsed. In the light of that, therefore, the petitioners are at liberty to take further steps in accordance with law in respect of the development of the land of the petitioners. In the event such development plans are submitted, the same shall be dealt with and necessary orders in accordance with law be passed.
Rule is thus made absolute oh the terms indicated above with no orders as to costs.