(1) WP. 3137.2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3137 OF 2000 Mahatma Gandhi Taluka Shikshan Mandal, Chopda, Dist. Jalgaon (Through its Secretary Shri Sandeep Patil) .. PETITIONER VERSUS 1. Smt. Mankarnabai Dinkarrao Deshmukh since deceased through LRs. (I) Shri Jagatrao S/o Dinkarrao Deshmukh Age : 56 years, Occu.: Agri., R/o Patilgadhi, Chopda, Dist. Jalgaon (II) Smt. Nirmalabai w/o Vasantrao Deshmukh Age : 49 years, Occu.: Household, R/o. C/o. Vasantrao Kashinath Deshmukh A/P. Shindhi, Tq. Chalisgaon, Dist. Jalgaon (III)Smt. Kusum W/o. Anandrao Mahale, Age: 41 years, Occu.: Household, R/o. Librarian A.S.C. College, C/o. Dr. Anandrao Mahale, At.P.O. Kannad, Dist. Aurangabad 2. The State of Maharashtra, through the Secretary, Urban Development, Mantralaya, Bombay – 32. 3. The Director Town Planning Maharashtra State, Pune 4. Deputy Director Town Planning Nasik Division, Nasik 5. Assistant Director Town Planning, Jalgaon (For R 2 to 5 Copy to be served on G.P. High Court) (2) WP. 3137.2000 6. Municipal Council, Chopda through its Chief Officer, P.O. Chopda .. RESPONDENTS ... Mr. B.R. Warma, Advocate for the Petitioner Mr. V.D. Hon, Advocate for respondent no.1(I) to 1(III) Mr. D.R. Korde, AGP for the respondent no. 2 to 5 Mr. P.B. Patil, Advocate for the respondent no.6 ... CORAM : V.R. KINGAONKAR, J. DATED : 16TH JULY, 2010 ORAL JUDGMENT:- 1. By this Petition, the petitioner seeks to challenge the judgment and order rendered by the Director of Town Planning, Maharashtra State, Pune in Appeal. By that judgment, the appeal preferred by deceased respondent no.1 came to be allowed and the Municipal Council, Chopda was directed to permit development of agricultural land gat no. 1155/1 and 2 as sought by her. 2. There is no dispute about the fact that the agricultural land bearing gat no. 1155/1 and 2 was owned by deceased respondent no.1. The land was reserved under the Town Planning development plan for (3) WP. 3137.2000 the purpose of development of the petitioner’s College. The reservation was provided for when the town planning authority finalised the sanction plan in the month of December, 1986. There is no dispute about the fact that the deceased respondent no.1 Mankarnabai, for the first time, issued a notice dated 23.12.1994 under section 49 of the Maharashtra Regional and Town Planning Act, 1966 (for short hereinafter referred to as "the Act") seeking de-reservation of the land in question. She requested the Town Planning authority to either purchase the land in question or to exempt it from reservation. It appears that a common notice was given not only by the respondent no.1 but other co- owners of the land. Thus, by such joint notice they requested the Director of Town Planning, Pune to delete the land in question from reservation if acquisition could not be effected within a period of one year. A copy of the notice was issued to the President of the petitioner. By communication dated 23rd March, 1995, the Director of Town Planning informed one of the noticee that the purchase notice (4) WP. 3137.2000 was not applicable inasmuch as the land was reserved for development of College. The petitioner preferred appeal which came to be allowed. The appellate authority held that the land is exempted from reservation due to absence of acquisition prior to 23rd March, 1995. The petitioner would submit that such de-requisition could not have been ordered when the notice was not within the provision of section 49 of the Act nor period of ten (10) years was over as contemplated under section 127 of the Act. The petitioner’s contention is that the whole procedure adopted by the Director of Town Planning is erroneous and that premature decision of de-requisition was arrived at. 3. Heard learned counsel for the parties and learned AGP. Perusal of the impugned order reveals that the learned Director of Town Planning did not specifically address the issue as regards the nature of notice issued by the deceased respondent no.1. The notice dated 23.12.1994 shows that it was issued under section 49 of the Act. It is necessary, (5) WP. 3137.2000 therefore, to examine whether the notice issued by the deceased respondent no.1 and others falls within the ambit of section 49(1) of the said Act. Section 49 puts an obligation to acquire the land on refusal of permission or on grant of permission under certain conditions. Sub-Section(1) of Section 49 of the Act reads as follows: "Sec. 49. Obligation to acquire land on refusal of permission or on grant of permission in certain cases (1) Where- (a) any land is designated by a plan as subject to compulsory acquisition, or (b) any land is allotted by a plan for the purpose of any functions of a Government or local authority or statutory body, or is land designated in such plan as a site proposed to be developed for the purposes of any functions of any such Government, authority or body, or (c) any, land is indicated in any plan as land on which a highway is proposed to be constructed or included, or (6) WP. 3137.2000 (d) any land for the development of which permission is refused or is granted subject to conditions, and any owner of land referred to in clauses (a), (b) (c) or (d) claims- (i) that the land has become incapable for reasonably beneficial use in its existing state, or (ii) (where planning permission is given subject to conditions) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with the conditions; or (e) the owner of the land because of its designation or allocation in any plan claims that he is unable to sell it except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated, the owner or person affected may serve on the State Government within such time and in such manner, as is prescribed by regulations, a notice (hereinafter referred to as “the purchase notice”) requiring the Appropriate Authority to purchase the interest in the land in accordance with the provisions of this Act." (7) WP. 3137.2000 4. It is significant to note that the notice dated 23rd December, 1994 (Exh.”A” to the Petition) does not fall within any of the category of sub- clauses (a) to (d). It is argued that the notice comes within the ambit of sub-clause (e) of sub section (1). For this purpose, it is necessary for the owner to put forth a specific claim when he is unable to sell the land except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated. The deceased respondent no.1-Mankarnabai did not specifically raise such contention in the given notice. It was not her case that if the allocated land is not made available to her, she would be put to financial loss. The deceased respondent no.1 did not call upon the petitioner to initiate the acquisition proceedings and to take over the land in question. 5. On careful reading of the notice, it is explicit that in all ten (10) co-owners informed the (8) WP. 3137.2000 Director that the land was reserved for extension of College but for nine years nothing was done. It was contended that if within six months the acquisition was not effected, the land may be deleted from the reservation. The notice does not envisage any of the grounds appearing from section 49 of the said Act. It appears to be notice issued under section 127(1) of the said Act. The lapsing of reservation would automatically take place only after period of ten years if within six months of service of notice, the land is not acquired or no steps are taken for the acquisition proceedings. Needless to say, notice under section 127 of the Act cannot be given before expiry of ten (10) years period from the date of reservation. In “Prafulla C. Dave and others V. Municipal Commissioner and others 2007(6) Bom.C.R. 520” a Division Bench of this Court held that the period of serving notice would commence not from the date of notification of revised development plan but from the date of issuance of final notification under section 29(6) of the Act. (9) WP. 3137.2000 6. Counsel for the respondents would submit that the action under section 49 of the Act is quite different from action under section 127 of the Act. He invited my attention to observations in “Prakash R. Gupta V. Lonavala Municipal Council and others 2009(3) Mh.L.J. 1”. There cannot be two opinion about the legal position that both such actions are different in nature. In the present case, however, ingredients of sub-section(1) of section 29 of the Act are not specified by the deceased respondent no.1 and other claimants. They issued a general notice which did not contain particulars of any reasons which may fall within the ambit of section 29(1) of the Act. So, the notice is bad in law. The final outcome of the said notice is reflected from the appellate order. The appellate order also does not indicate substantial reasons as to why the notice was considered valid under section 49 of the Act. 7. Considering the foregoing discussion, the impugned order is perverse and un-sustainable. However, the legal representatives of the deceased (10) WP. 3137.2000 respondent no.1 are at liberty to issue afresh notice under section 127 of the said Act and thereafter, may seek exemption of the land in question from reservation. Hence the Petition is allowed. The impugned order is set aside. No costs. Rule made absolute accordingly. Sd/- [V.R. KINGAONKAR, J.] arp