: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5356 OF 2009 1. Digambar Dhundiraj Phadake & ors. ... Petitioner Vs 1. State of Maharashtra & 3 ors. ... Respondents Mr. Venkatesh Shastry for the petitioner. Mr. V.S. Gokhale, AGP, for the respondents No.1 to 3. Mr. Mr. Sachin Chavan with Mr.S.S. Kulkarni for the respondent No.4. CORAM: S.B. MHASE & R.M. SAVANT, JJ. DATED : 11TH AUGUST, 2009. P.C.: 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties, matter taken up for hearing. : 2 : 3. Petitioner is the owner of Gat No.275 located at Trimbakeshwar, District Nasik. The said Gat number is located within the Municipal area of the respondent No.4 – Municipal Council. The revised Development Plan of the respondent No.4 was prepared on 15th March, 1993 and the land of the petitioner was shown as reserved for playground under reservation No. 26. The Municipal Council passed a Resolution on 20th May, 1993, being Resolution No.128/93 and suggested a modification under section 37 to the Government. However, while suggesting the said modification, the respondent No.4 who is the Planning Authority under the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as “the said Act”) has suggested that the reservation site No.26 be excluded and it shall be shown as “residential” plot. The proposal to that effect was submitted by the respondent No.4 to the State Government under section 37. However, the State Government has not accepted the modification and informed the Council-respondent No.4 that the request made cannot be accepted in respect of the said plot. It appears that thereafter, the petitioner has issued a notice under section 127 of the said Act on 23rd June, 2003 since the period of ten years of coming into force of the Development Plan was over. However, after the said notice was served, the respondent No.4 has not initiated the acquisition proceedings within a period of six months as : 3 : required under section 127 of the said Act and so fas as non initiation of such acquisition proceedings is concerned, the said fact is undisputed. After the receipt of the said notice, respondent No.4 passed a Resolution that it does not require the land of the petitioner. Therefore, the petitioner submitted a building plan to the respondent No.4 for approval. However, the said plan was rejected on the ground that the land is under reservation. The petitioner has, therefore, filed the present Writ Petition. 4. The learned counsel for the petitioner submits that the reservation under these circumstances has lapsed and not only that, as a result of the Resolution of the Planning Authority, the Planning Authority has no right now to reject the building plans of the petitioner. The respondent No.4 has filed a reply raising objections, one of them being that the Petitioner is only one of the owners of the land and therefore he alone cannot give notice. The said submission is without any merit. If there are joint owners of the property, one of the owners of the land can issue notice under section 127 of the said Act and request for acquisition of the land. This ground is also not available to the respondent-Municipal Council in view of the fact that the respondent No.4 does not require the land for the public purpose for which the reservation has been stated. The other ground which is raised is that the : 4 : Government has turned down the proposal for modification under section 37 as suggested by the respondent No.4 and the Government has further refused to exclude the land from reservation. Even if that is so, section 127 is an independent provision and a code by itself in respect of lapsing of the reservation. Even though the Development Plan or Town Planning is in force and not modified by the Government, still a notice can be issued under section 127 of the said Act and if the acquisition proceeding is not initiated within six months, as stated in the said provision, the reservation lapses. Therefore, the consequences of non-initiation of the acquisition proceedings has been provided for in the section itself. 5. The learned counsel for the respondent further submitted that the Petition suffers from delay and latches. As we have already observed in the earlier paragraph that the consequences of lapsing of reservation has been provided in the section itself. Therefore, after issuance of notice under section 127 of the said Act, if acquisition is not initiated within six months, the consequences follow and it is not necessary for every party to approach this court for declaration. Above all, in the present matter, the Town Planning authority and the Director, Town Planning have clarified that the reservation has lapsed and, therefore, the point of delay and latches raised : 5 : by the learned counsel is without any merit. Consequently, the reservation in respect of the land of the petitioner viz. site No.26, which was reserved for a playground has lapsed and the petitioner is entitled to use the said land for such purposes as are permissible. The learned counsel further submitted that the building permission has been rejected against which an appeal has been provided for under section 47 of the said Act and, therefore, the petitioner should pursue the alternate remedy available to him. What we have noticed is that the building permission was rejected on the ground that the land is reserved. Under the aforesaid circumstances, even though alternate remedy is provided for, the reason for rejection itself is illegal and, therefore, we quash and set aside the order of the respondent No.4 refusing to grant permission to the petitioner. The respondent No.4 is, therefore, directed to consider afresh the building permission application of the petitioner and take a decision in that regard within a period of three weeks from today. 6. Rule made absolute accordingly. (R.M. SAVANT, J.) (S.B. MHASE, J.)