3.wp.3560-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3560 OF 2009 Vinayak Vishnu Dhopavkar and another. ..Petitioners. Versus State of Maharashtra and 3 others. ..Respondents. .... Dr.V.V. Tulzapurkar, Sr. Advocate i/b. M.M. Sathaye, Advocate for the Petitioners. Mr.V.S. Gokhale, A.G.P., for respondent Nos.1 & 2. Mr.V.A. Gangal, Advocate with Ashok Gade, Advocate for respondent Nos.3 & 4. .... CORAM : D.K. DESHMUKH, AND K.K. TATED, JJ. DATED : 18TH NOVEMBER, 2009 P.C.:- 1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 2. The facts which are relevant and material for deciding the Petition are that the suit land bearing Survey No.8/1 was owned by the petitioners. The total area of that land was 1 Hectare 38 Are. The land admeasuring 1 Hectare 1 Are 3.wp.3560-09 2 from Survey No.8/1 was compulsorily acquired. According to the petitioners, the land from Survey No.8/1 was reserved for school, play ground and D.P. road. 3. The case of the petitioners is that the land admeasuring 1 Hectare 1 Are was compulsorily acquired. After that acquisition, land admeasuring 0.37 Hectare remained with the petitioners. It appears that the petitioners issued a notice under Section 127 of the Town Planning Act for purchase of the land. No steps were taken. Ultimately, Writ Petition No.4184 of 1995 was filed in this Court by the petitioners which was decided by order dated 12th November, 1998. This Court held that due to failure of the Government and Planning Authority to acquire the land, the reservation has lapsed and therefore the petitioners are free to apply to the competent authority for development of the land. It was made clear that while deciding the application of the petitioners for development, the competent authority shall not reject it on the ground that the land is under reservation. 4. An application for review of above said order was filed which was registered as Civil Application No.685 of 1999. 3.wp.3560-09 3 The said application was disposed of by an order dated 23.3.1999. The Court declined to modify its order, but, the Court noted that there appears to be dispute between the petitioners and the Corporation about the identity of the land admeasuring 1 Hectare 1 Are which has been compulsorily acquired, and therefore the Corporation was granted liberty to take steps to get the land identified. Thereafter, the petitioners applied for permission to develop the land which according to the petitioners remained with them after acquisition of 1.1 Hectare land compulsorily. That application was rejected by the Corporation by order dated 27.12.1999. The only reason given by the Corporation for rejecting the application was that the land in relation to which the development permission is sough, is owned by the Corporation and is in possession of the Corporation. Against this order, appeal was filed before the State Government. That appeal has been decided by an order dated 5th March, 2007. By that order, the appeal has been rejected. The present Petition is filed challenging the order of the State Government. 5. We have heard the learned Counsels for both the sides. 3.wp.3560-09 4 Perusal of the order dated 5th March, 2007 passed by the State Government shows that one of the reasons for which the State Government has rejected the appeal, is that the land continues to be under reservation. This reason given by the State Government is clearly contrary to the order of the Division Bench of this Court dated 12th November, 1998 passed in Writ Petition No.4184 of 1995. Considering that the Corporation has rejected permission for development as sought by the petitioners only for one reason, viz., land in relation to which permission is sought is owned by the Corporation and is in possession of the Corporation, the only question that was to be enquired into in the appeal was whether the land from Survey No.8/1 in relation to which the permission for development was sought was part of the land which is acquired by the Corporation, viz., the land admeasuring 1 Hectare 1 Are from Survey No.8/1 as per the notifications issued and the record maintained by the Land Acquisition Officer for acquiring the land or the permission is sought is relating to the land that remained with the petitioners. However, it appears that, that aspect of the matter has not been enquired into by the State Government. 3.wp.3560-09 5 The learned Counsel appearing for the Petitioners, therefore, submitted that order of the State Government dated 5th March, 2007 should be set aside and the matter should be remitted back to the State Government for fresh decision with direction to the State Government to hold enquiry in relation to identity of the land. 6. We have heard the learned Counsel appearing for the Corporation as also the learned A.G.P. appearing for the State Government. We clearly find that the order of the State Government cannot be sustained, firstly, because the reason given by it for rejecting the appeal is contrary to the order passed by this Court and, secondly, it considered other aspects which were not considered by the Corporation while rejecting the application made by the petitioners. 7. In view of the request made by the learned Counsel for the petitioners, in our opinion, following order would meet the ends of justice : :: O R D E R :: [i] Order dated 5th March, 2007 passed by the State Government, impugned in the Petition, is set aside; [ii] The appeal of the petitioners is remitted back to the 3.wp.3560-09 6 State Government for de novo hearing and decision in accordance with law; [iii] The State Government before taking up appeal for hearing, shall direct the District Inspector of Land Records, Nashik to survey the entire land in Survey No.8/1 and identify which is the land admeasuring 1.1 Hectare from that survey number which has been acquired. While deciding this point, the Surveyor shall go through the record maintained by the Land Acquisition Officer for compulsorily acquiring land admeashring 1.1 Hectare from Survey No.8/1. [iv] After identifying the land which has been acquired, both by drawing a map as also on the spot, the Surveyor shall also identify the land which remained to be acquired or which remained with the land owner after acquisition from Survey No.8/1. This land shall be identified, both, on the spot as also on the map. The Surveyor shall also identify the land in relation to which the petitioners have made the application for permission to develop. The petitioners and the Corporation shall make available to the 3.wp.3560-09 7 Surveyor, for that purpose, the original of the application together with map submitted by the petitioners along with application for permission to develop the land. [v] The Surveyor shall also indicate the present position of the land, both, which is acquired and the land which is not acquired and which continuous to be in ownership of the petitioners; [vi] After the report of the Surveyor is received by the State Government, copies of that report shall be made available to the petitioners and the Corporation. And, thereafter, the Corporation and the petitioners shall be heard and order shall be made on the appeal in accordance with law as also as per the orders passed by this Court including this order. [vii] It is made clear that if it is found that the application made by the petitioners for development is in relation to the land which is actually acquired by the Corporation, then the petitioners shall be at liberty to make a fresh application for permission to develop that land which has remained with the petitioners 3.wp.3560-09 8 after acquisition; [viii] The State Government shall pass final order on the appeal, as expeditiously as possible, in any case, within a period of three months from the date on which writ of this order is served on the State Government. [ix] Rule is made absolute accordingly. No order as to costs. Writ Petition is disposed of accordingly. (D.K.DESHMUKH,J) (K.K. TATED,J)