1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.429/2010 MUNICIPAL COUNCIL GADCHIROLI ..VS.. CARMLITES OF MARRY IMMACULATE SERVICE Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 11 /10 / 2010 Heard Shri Radke, the learned counsel for the appellant. The appellant is the original defendant no.1, the Municipal Council Gadchiroli. The suit was filed by the plaintiff society for a declaration that the suit land stood released from the reservation for the road as the reservation had lapsed in view of the provisions of Maharashtra Regional & Town Planning Act 1966. The plaintiff further sought a prohibitory injunction, restraining the defendant from laying the road as per the development plan of the year 1991. The plaintiff had pleaded that the suit land was reserved for the road and the said plan was sanctioned by the planning authority on 1.11.1991. According to the plaintiff a period of 10 years had lapsed from the sanction of the plan on 1.11.2001 and during this period of 10 years, the respondent no.1 municipal council had not taken any steps for the acquisition of the land and for the implementation of the plan. The plaintiff therefore, issued a notice dated 6.10.2004, to the Municipal Council, but the defendant no.1 failed to take any steps within a period of 6 months for acquiring the land 2 and hence the reservation stood lapsed in view of the provisions of section 127 of the Maharashtra Regional & Town Planning Act 1966. On the aforesaid pleas the plaintiff sought a declaration that the reservation of the land for the road in view of the Final Development plan dated 1.11.1991 stood lapsed. The defendant no.1 -Municipal Council filed the written statement and denied the claim of the plaintiff. It was pleaded by the defendant no.1 / appellant that the construction made by the plaintiff was illegal and therefore, the defendant no.1 had demolished the same in the year 2007. The defendant sought for the dismissal of the suit. The trial as well as the first appellate court on an appreciation of the evidence on record came to a conclusion that the plaintiff had succeeded in proving that the reservation of the suit land for laying of the road stood lapsed in view of the provisions of section 127 of the Act of 1966. The courts held that the plaintiff was therefore entitled to the relief of declaration and prohibitory injunction as claimed by the plaintiff. The courts however held that the plaintiff was not entitled to a permission for reconstruction of the wall, demolished by the defendant no.1 municipal council. The court held that the suit of the plaintiff was not barred by limitation or by the principles of res-judicata. The findings recorded by both the courts are based on a proper appreciation of the evidence on record as also the provisions of the Maharashtra Regional & Town Planning Act 3 1966. The submission made on behalf of the appellant municipal council that the suit of the plaintiff was barred by limitation is liable to be rejected as the notice under section 127 of the Act of 1966 was admittedly issued by the plaintiff to the municipal council on 6.11.2004 and the suit was instituted on 5.2.2008. The period to take steps within a period of six months from the issuance of notice expired on 6.5.2005 and the suit was filed within a period of 3 years form 6.5.2005 and hence the same cannot be said to be barred by limitation. The courts rightly held that the appellant – municipal council had not tendered any evidence on record to show that they took any concrete steps as required by the provisions of section 127 of the Act of 1966 to acquire the land. The findings recorded by both the courts, are based on an appreciation of the evidence on record, as also the provisions of the Act 1966. They do not give rise to any substantial question of law. The second appeal therefore fails and is dismissed with no order as to costs. JUDGE SMP.