1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3873 OF 2010 Pandit s/o Laxman Bhadak & others ... PETITIONERS VERSUS The State of Maharashtra and others ... RESPONDENTS ..... Shri N.B. Suryawanshi, Advocate holding for Shri R.L. Kute, Advocate for the petitioners Shri V.H. Dighe, A.G.P. for respondents No.1 and 2 Shri S.P. Shah, Advocate for respondent No.3. ..... CORAM : MOHIT S. SHAH, CJ. AND B.R. GAVAI, J. DATED : 30th November, 2010 PER COURT : 1. While issuing notice on this petition, this Court had made clear in the order dated 29.4.2010 that notice was issued only in respect of prayer clause (D) to the petition. Prayer clause (D) is as under : “(D) In the alternative hold and declare that, the land Survey No.537/1A, admeasuring 30 R. situated at Korenagar, Behind Railway Station, Dhule, Taluka and District Dhule, owned by the 2 petitioners, is deemed to have been released from the reservation and further direct the respondents to hand over vacant and peaceful possession of land to petitioners by removing encroachments made thereon and for that purpose issue necessary orders.” 2. The learned counsel for the petitioner submits that, in view of the Resolution No.56, dated 2.7.2009 by Dhule Municipal Corporation and the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966, the respondents are not entitled to acquire the land in question under the provisions of Land Acquisition Act, 1894 and that the respondents are also bound to ensure that the petitioners are able to enjoy the vacant and peaceful possession of the land in question. It is submitted that since encroachments were made on the land in question during the period of reservation in the last two years, it is responsibility of the respondents to hand over vacant and peaceful possession of the lands in question to the petitioners by removing encroachments. 3. The learned Assistant Government Pleader for respondents No.1 and 2 and the learned counsel for the Municipal Corporation submit that the respondents had never taken the possession of the land in question and, 3 therefore, it is not for the respondents to remove the encroachments and, therefore, the question of the respondents handing over possession of the land in question to the petitioners can never arise much less there is question of respondents being required to remove the encroachments made on the land in question. 4. The learned counsel for the petitioners further submits that, by letter dated 4.8.2006 at Exhibit C, the Municipal Commissioner of the respondent Municipal Corporation had informed the petitioners that notices under Sections 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966 were given to the occupiers of the land in question and their explanations were considered and not accepted by the Corporation and that after the monsoon season of that year, the Corporation will remove the unauthorised constructions with the help of the police, if necessary. The learned counsel for the petitioners submits that, the respondent/Corporation is accordingly required to act as per the said communication and to enforce the provisions of Sections 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966 and also the provisions of Section 478 of the Bombay 4 Provincial Municipal Corporations Act, 1949. 5. The learned counsel for the respondent Corporation submits that, though the Corporation does have the powers under the above statutory provisions, it is not the responsibility of the Corporation to hand over the possession of the land in question to the petitioners. 6. Having heard the learned counsel for the parties, we are of the view that it may not be the responsibility of the Corporation to hand over possession of the land in question to the petitioners, because the Corporation has never taken possession of the land from the petitioners. All the same, the Corporation is required to enforce the provisions of Sections 52 and 53 of the Maharashtra Regional and Town Planning Act, 1966 and Section 478 of the Bombay Provincial Municipal Corporations Act, 1949. The Corporation shall accordingly implement the provisions of the said Acts in accordance with law within six months from today. 7. Having heard the learned counsel for the petitioner and the learned counsel for the respondents, 5 we are inclined to accept the submissions made by learned counsel for the respondents that since the respondents have never taken over possession of the land in question, there is no question of issuing any directions to the respondents to hand over possession of the land in question to the petitioners. At the same time, having regard to the fact that the petitioners were not in a position to develop the land in question on the count of the reservation of the land for the purposes of school and playground, it would be in the fitness of things to dispose of this petition with a direction that in case it becomes necessary for the petitioners to file a civil suit for eviction of the persons occupying the land in question, the Civil Court shall decide the suit in accordance with law, as expeditiously as possible and preferably within one year from the date of institution of the suit. (B.R. GAVAI, J.) (CHIEF JUSTICE) fmp/wp3873.10