1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9482 OF 2003 1.Al-Azhar Yakub Contractor & ors. ...Petitioners. vs. 1.State of Maharashtra & others. ...Respondents. --- Mr.Vishwajit P.Sawant, for Petitioners. Mr.C.R.Sonawane, AGP for Respondent nos.1 & 3. --- CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. DATED: 24th March,2008. 2 P.C.:- 1. By this petition, the petitioners challenge the order that was communicated to the petitioner alongwith the letter dated 25.1.2001 passed by the Director, Town Planning, Maharashtra State, Pune. By that order the Director has rejected the appeal filed by the petitioners. The petitioners had filed an appeal challenging the action of the planning authority who was treating the land of the petitioners as reserved for public purpose viz. extension of primary school. The petitioner had given notice under section 127 of the Maharashtra Regional and Town Planning Act to the planning authority to purchase their land. The land was not purchased and therefore, it was the case of the petitioners that the reservation of their land for public purpose made in the final development plan has lapsed and therefore, they are entitled to have their building plan sanctioned by the planning authority. Perusal of the order of the Director passed in the appeal which is challenged in the petition shows that the Director 3 has rejected the contention of the Municipal Council/planning authority that the land continues to be reserved for public purpose despite issuance of notice under Section 127 of the M.R.T.P. Act, and it has been held that the reservation of the land under the final development plan has lapsed. The Director, however, relying on some judgments of the High Court has held that because in the revised draft development plan the land continues to be shown as reserved for the same public purpose, the petitioners are not entitled to have their building plan sanctioned and has disposed of the appeal accordingly. After this decision was communicated to the petitioners, the petitioners came across the judgment of the Supreme Court in the case of “Bhavnagar University V. Palitana Sugar Mills Pvt.Ltd. & Ors, JT 2002(10)SC 55” wherein, according to the petitioners, the Supreme Court has taken a view that where as a result of a notice issued under section 127 of the Act reservation of land for public purpose in the final development plan lapses, then only because in the draft revised plan the land is shown for the same purpose will not take away the 4 effect of lapsing of reservation because of the notice issued under Section 127 of the Act. Relying on that judgment, the petitioners submit that an application to the Director requesting him to reconsider his decision in the appeal in view of change in law brought about because of the judgment of the Supreme Court. The petitioners were informed by the Director that he is referring their application for review to the State Government for its opinion, and he will communicate his decision on their application after the opinion is received from the State Government. 2. We have heard the learned Counsel appearing for both the sides. We have perused the record. Perusal of the order of the Director which is impugned in the appeal shows that there is clear finding recorded by the appellate authority that the reservation of land of the petitioners for public purpose has lapsed because of the notice under Section 127 of the M.R.T.P.Act to the local authority, but the only ground on which the appeal of the petitioners has been rejected is that in the 5 revised draft development plan that land continues to be shown as reserved for the same public purpose. Perusal of the judgment of the Supreme Court in the case “Bhavnagar University V. Palitana Sugar Mill Pvt.Ltd.& Ors” referred to above prima facie shows that the Supreme court has taken a different view of the matter. In our opinion, the judgment of the Supreme Court in “Bhavnagar University” case is relevant for deciding the appeal filed by the petitioners before the Director. The judgment of the Supreme Court was delivered after the order in the appeal. It is also clear that the application submitted by the petitioners for reconsideration of the order in view of the Judgment of the Supreme Court in the case of “Bhavnagar University” is still pending. Relying on the judgment of the Director in the appeal which is challenged in the petition because the land is reserved in revised draft development plan for the same public purpose, we have been informed that the Municipal Council has again passed a resolution for acquisition of land. That resolution is also challenged in the petition. In our opinion, therefore, the following order would meet 6 the ends of justice:- The order of the director impugned in the petition is set aside. The appeal is remitted back to the Director for hearing and decision in accordance with law. The Director is also directed to decide the validity of the resolution of the Municipal Council, referred to above, passed in view of the order passed in the appeal while deciding the appeal. In view of the pendency of the matter for a long time the Directors shall hear and decide the appeal as expeditiously as possible in any case within a period of six weeks from the date on which the petitioners appear before the Director. The petitioners to appear before the Director on 15.4.2008 with all relevant documents and the judgments on which the petitioners want to rely in support of their appeal. Thereafter, the Director shall hear the petitioners and the local authority and shall pass a fresh order in the appeal in accordance with law. Rule is made absolute accordingly. 7 No order as to costs. (D.K.DESHMUKH, J.) (V.M.KANADE, J.) ---