1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2501 OF 1990 1. Kesharbai Gorakhnath Bade } Age : 55 Years, Occ. Household, R/o : Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 2. Namdeo Patilba Baste } Age : 68 Yrs., Occ. Agril. } R/o : Jambhali, Tq. Pathardi, } Dist. : Ahmednagar. } ..... PETITIONERS VERSUS 1. State of Maharashtra } 2. Zilla Parishad, } Ahmednagar. } 3. Pathardi Municipal Council } Pathardi. } 4. Revenue Commissioner } Nasik Division, Nasik. } 5. Rajendra Motilal Daga } Age : 45 Yrs., Occ. Business } R/o : Dalmandi, Ahmednagar } 6. Chaturbhuj S/o Maruti Dhakane Age : 45 Yrs., Occ. Service, } R/o : Nathnagar, Pathardi } Dist. Ahmednagar. } 7. Sou.Satyabhamabai Shivajirao Athre Age : 45 Yrs., Occ. Household } 2 R/o : Plot No. 1, Nath Nagar } Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 8. Someskher Shashikant Jiresal } Age : 29 Yrs., Occ. Business, } R/o : Jiresal Galli, Pathardi } Tq. Pathardi,Dist. Ahmednagar} 9. Shaikh Umar Abdul Rehman } Age : 50 Yrs., Occ. Business, } R/o : Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 10. Sow.Vimalbai Manikrao Kedar } Age : 38 Yrs., Occ. Household } R/o : Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 11. Alamnoor Jafar Pathan } Age : 40 Yrs., Occ. Household, } R/o : Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 12. Shaikh Hanif Hussain } Age : 55 Yrs., Occ. Business, } R/o : Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 13. Namdeo Mahadeo Khedkar } Age : 40 Yrs., Occ. Agril., } R/o : Plot No. 58/1, } Nath Nagar, Pathardi, } Tq. Pathardi, Dist. Ahmednagar} 14. Sou.Ushabai Pandurang Khedkar Age : 45 Yrs., Occ. Household, } R/o : Plot No. 58/3, } Nath Nagar, Pathardi, } 3 Tq. Pathardi, Dist. Ahmednagar} 15. Attar Rasul Bapuji } Age : 62 Yrs., Occ. Agril., } R/o : Plot No. 58/6, } Nath Nagar, Pathardi, } Tq. Pathardi, Dist. Ahmednagar} 16. Sou.Kanchan Sahebrao Khade } Age : 45 Yrs., Occ. Agril., } R/o : Plot No. 58/7, } Sai Nagar, Pathardi, } Tq. Pathardi, Dist. Ahmednagar} 17. Smt.Shobha Vijaykumar Shelke} Age : 44 Yrs., Occ. Service, } R/o : Plot No. 58/9, } Akharbhag, Pathardi, } Tq. Pathardi, Dist. Ahmednagar} 18. Bhaskar Shankar Garje } Age : 52 Yrs., Occ. Agril., } R/o : Plot No. 58/12, } Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 19. Pandurang Ambadas Bahjrat } Age : 55 Yrs., Occ. Agril., } R/o : Plot No. 58/13,Chinchpur Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 20. Sou.Sulochana Damodhar Karkhele Age : 56 Yrs., Occ. Household, } R/o : Plot No. 58/14,Nathnagar Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 4 21. Damodhar Patilba Karkhele } Age : 60 Yrs., Occ. Agril., } R/o : Plot No. 58/16,58/17, } Nath Nagar,Pathardi, } Tq. Pathardi, Dist. Ahmednagar} 22. Ashok Tulshiram Ghule } Age : 52 Yrs., Occ. Agril., } R/o : Plot No. 58/20,Navi Peth Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 23. Smt.Mandabai Tulshiram Ghule Age : 65 Yrs., Occ. Household, } R/o : Plot No. 58/2, Navi Peth} Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } 24. Amir Baba Mohammad Pathan } Age : 54 Yrs., Occ. Agril., } R/o : Plot No. 58/23, 58/24, } K.C.Road Line, Jalna Road, } Rokada Colony, Aurangabad. } 25. The Sub Divisional Engineer } National High-way Sub Division R/o : Plot No. 58/12, } Pathardi, Tq. Pathardi, } Dist. Ahmednagar. } .... RESPONDENTS Mr. S.D.Kulkarni, Advocate for petitioner. Mr. K.G.Patil, Assistant Govt. Pleader. . Mr. M.R.Sonawane, Advocate for respondent no. 7. Mr. V.H.Dighe, Advocate for respondent no. 8 to 12. Mr. V.K.Shinde, Advocate for intervener. Mr. V.D.Sapkal, Advocate for intervener. 5 CORAM : B.R.GAVAI & S.V.GANGAPURWALA, JJ. DATE OF JUDGMENT: 07/06/2010 JUDGMENT : [ PER – S.V.GANGAPURWALA, J. ] 1. The present Writ Petition impugns the order or Commissioner passed in October, 1989, by which the Appeal filed by the petitioner came to be dismissed and the orders passed by the Collector dated 23/9/1983 and the Sub Divisional Officer dated 28/5/1982 came to be confirmed. 2. The facts in nut shell are as under : Land S.No. 3/1 situated at village Pathardi totally admeasuring 18 Acres 20 Gunthas was owned by one Mohanlal Daga. On or about 9/2/1963, the competent authority granted permission for non agricultural use of the said land. On 18/2/1964, the lay out was sanctioned by the Collector. As per the said lay out, the plots were carved out and plot Nos. 14,15, 16, 57, 59, 296 and 307 were shown earmarked and reserved for the purpose of the School, play ground, Dharamshala, Gymkhana, Garden. The petitioner purchased one of the plots. The plots were sold by the original owner. Thereafter on 28/5/1982, an application came to be made by the original owner for de-reserving the plots, earmarked for public utility purpose in the said 6 lay out. The Sub Divisional Officer, Rahuri Division, Ahmednagar vide his order dated 28/5/1982 de-reserved plots bearing Nos. 15,16,58,296 and 307. The said order was challenged by the petitioner before the Collector. The Collector vide his order dated 23/9/1983 dismissed Appeal and confirmed the order of the Sub Divisional Officer de-reserving the said plots. The petitioner preferred Second Appeal before the Commissioner, who also dismissed the said Appeal in October, 1989. Aggrieved by the same, the present petitioner has approached this Court. 3. We have heard Mr. S.D.Kulkarni, learned counsel for the petitioners and respective counsel for the respondents and the intervener. 4. Mr. Kulkarni, the learned counsel for the petitioners submitted that in the year 1967, the Town Planning Act was made applicable and those plots which were reserved for public utility could not have been de-reserved by the Sub Divisional Officer The owner could not have sold the said plots nor can get right to de-reserve said plots. It is only because value of the land was increased . The owner applied for de-reservation and sale of the said plots. Mr. Kulkarni, the learned counsel for the petitioners further contended that as the said plots were sought to be de-reserved, it was mandatory for the Sub Divisional Officer to issue notices to the petitioners and other 7 owners of the plots in the said lay out, but the Sub Divisional Officer did not even issue notices to them. It was also contended by him that as the Town Planning Act was made applicable, the de-reservation could not have been made. 5. The submission of the petitioners that the Town Planning Act was made applicable to the said village, is not supported by any notification. More over, the learned counsel also could not point out that any development plan has been prepared, wherein these plots are shown as reserved for the public purpose as is alleged by the petitioners. In absence of the same, it can not be presumed that in the development plan, the same was reserved. The lay out has been sanctioned by the Sub Divisional Officer. Mr. Kulkarni, the learned counsel for the petitioners also could not point out any provision showing that the Officer, who has sanctioned the lay out, did not have an authority to accord the change in the use of the plots, which were earlier reserved. In such circumstances, it can not be said that the orders impugned are illegal. More over, all these plots have been sold and it has been stated by the learned counsel for the intervener that the majority of the persons who have purchased the plots, have constructed buildings after obtaining necessary permission. 6. In that view of the matter, we do not find any merit in the submission of the learned counsel for the petitioners. In such 8 circumstances, the Writ Petition deserves to be dismissed and the same is accordingly dismissed. Rule is discharged. However, there shall be no order as to costs. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 2501.90 ( J )