1 WP No.10152 of 2010 THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10152 OF 2010 1) Suryanarayan s/o Mahadevprasad Tiwari, Age 56 years, Occupation : Service, R/o Jankipuram Colony, Kursi Road, Lakhanu (UP State) 2) Shriram Mahadevprasad Tiwari, Age 51 years, Occupation : Service, R/o Palghar, Taluka and District Thane. 3) Laxminarayan s/o Mahadevprasad Tiwari, Age 48 years, Occupation: Business, R/o Palghar Juna Court Road, Palghar, Taluka and District Thane. 4) Shri Premnarayan s/o Mahadevprasad Tiwari, GPA Holder of all petitioners 1 to 3 Age 60 years, Occupation : Business, R/o Krushnapuri, Pachora, Taluka Pachora, District Jalgaon. ... Petitioners. Versus 1) The State of Maharashtra, Through its Secretary, Urban Development Mantralaya, Bombay. 2 WP No.10152 of 2010 2) The Director, Town Planning, Maharashtra State, Pune. 3) The Collector, Jalgoan. 4) The Deputy Director, Town Planning, Jalgaon. 5) The Chief Executive Officer Pachora, Taluka Pachora, District Jalgaon. ... Respondents. -------- Shri. Vijay Y, Patil, Advocate for Petitioners. Shri. K.J. Ghute Patil, Assistant Government Pleader, for respondent Nos.1 to 4. Shri. M.S. Deshmukh, Advocate, for respondent No.5. -------- CORAM: NARESH H. PATIL & T.V. NALAWADE, JJ. DATE : 18th AUGUST, 2011. ORAL JUDGMENT (Per Naresh H Patil, J.): 1) Heard. 2) Rule. Rule made returnable forthwith. By consent of the counsel for the parties, taken up for final hearing. 3 WP No.10152 of 2010 3) The petitioners claim to be owner of City Survey No.14-B admeasuring 1 Hectare 30 R and City Survey No. 14-A admeasuring 6 Hectares 34 R situated at Pachora, District Jalgaon. Respondent No.5-Municipal Council prepared development plan in the year 1986. The development plan came into force from 1-2-1987. The subject land of the petitioners was reserved under the development plan being Reservation No.47-A, 47-B and 49. 4) The petitioners issued notice under section 127 of the Maharashtra Regional and Town Planning Act (for short, "MRTP Act") to respondents on 18-8-2003 as the respondents did not take any steps for acquisition of the property or for its development for the purpose for which it was reserved. The land was shown reserved for the purpose of high school, playground and for housing. The petitioners made several representations to the authorities for getting their land released from reservation so that the petitioners could develop their land. The petitioners filed Writ Petition No.1993 of 2006. On 4-7-2006 the Division Bench disposed of the petition with following order. 4 WP No.10152 of 2010 "1. The petitioners are owners of agricultural lands bearing Survey No.14-A, 14-B situated at Pachora as well as Reservation No.47-A, 47-B, 48 and 49, as indicated in the development plan. They submit that in spite of issuing notices under Section 127 of the Maharashtra Regional and Town Planning Act, 1966, the lands are not acquired and no compensation has been paid to them. Hence, they seek either de-reservation or payment of compensation. 2. The respondent No.2, Municipal Council, Panchora has filed a reply affidavit. 3. We have heard the learned counsel for the parties and have perused the relevant record. It is conspicuous that the Municipal Council, Pachora has taken steps within the stipulated time for acquisition of the lands in question. The communication dated 17.11.2003 (Exh.R-2) reveals that the Collector has been informed regarding decision to commence the acquisition proceedings. The Municipal Council, Pachora appears to have made provision in the Budget for the required amount of compensation to be paid. The learned AGP states that instructions could be given for expeditious acquisition proceedings. 4. Now, since steps have been taken for acquisition of the land in question, the request for de-reservation cannot be considered. We hope and trust that the acquisition proceedings will be commenced at the earliest and will be concluded without loss of much period. In this view of the matter, writ petition stands disposed of. An authenticated copy of this order be given to the parties to act upon." 5 WP No.10152 of 2010 5) It is the contentions of the petitioners that in the light of the provisions of Section 38 of the MRTP Act, revised development plan is not yet sanctioned and the planning authority is prolonging the matter by showing petitioners' land under reservation since last 23 years. The petitioners are unable to use their immovable property. The petitioners further submit that encroachment over the subject land is taking place. The petitioners, therefore, pray that the suitable directions be given to the respondents to release the subject land from reservation in the development plan. 6) Respondent No.5 filed affidavit-in-reply through its Chief Officer. The deponent submits that the lands of the petitioners are shown as reserved sites in the development plan of 1986 and the current development plan with slight modification. Reservation of the site is continuously shown for the purpose of development plan since the year 1986. The deponent further contended that the revision of the development plan is undergoing. During the process the petitioners have raised their objections 6 WP No.10152 of 2010 which were heard by the planning committee which submitted its opinion. The deponent contends that after the opinion of the planing committee the Municipal Council had passed resolution No.1 dated 29th April 2009 in respect of various reservations was shown in the draft development plan and the same as forwarded to the respondent - State Government through respondent No.2 on 5th April 2010 for sanction of the development plan under Section 30(1) of the MRTP Act. According to the deponent the present proceeding in respect of finalization of the development plan is pending with respondent No.1 - State Government. 7) Learned counsel for the petitioners placed reliance on reported judgment in Vijaykumar Motilal Hirakhanwala v. State of Maharashtra, 2011(4) Mh.L.J. 66. We have considered the relevant provisions of the Land Acquisition Act and the Maharashtra Regional and Town Planning Act. We have perused the judgment cited above. 7 WP No.10152 of 2010 8) The Division bench has observed while disposing of Writ Petition No.1993 of 2006 that since steps have been taken for acquisition of the land, request of the petitioners for dereservation could not be considered. It was expected that the acquisition proceeding would be commenced at the earliest and would be concluded without loss of time. 9) In spite of the order passed by this Court, the planning authority failed to complete the land acquisition proceedings. We do not find that the respondent - planing authority was entitled to show the subject land of the petitioners as reserved in the development plan for more than 23 years without taking any steps in spite of notice issued by the petitioners to the respondents by virtue of the provisions of Section 127 of the Maharashtra Regional and Town Planning Act. In the light of the facts of the case, the provisions of law and the judgment cited above, we are convinced that the petitioners are entitled to utilise the subject lands. 10) We, therefore, direct that the subject lands belonging to the petitioners reserved in the development 8 WP No.10152 of 2010 plan are released from reservation and are available for the utilisation of the petitioners. Rule made absolute. No order as to costs. Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H. PATIL, J.) rsl