1 wp 8561.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8561 OF 2011 1. Rameshchandra Deochand Vasaikar, Age : 62 Years, Occu. : Ex. Dy. C. P. R/o 153, Nilkamal Building, Shivaji Park, Road No. 5, Mahim, Mumbai. 2. Smt. Sundarabai W/o Pralhad Vasaikar, Age : 58 Years, Occu. : Household, R/o Plot No. 13, Sonabai Nagar, Nandurbar, Dist. Nandurbar. 3. Shankarrao S/o Deochand Vasaikar, Age : 85 Years, Occu. : R/o Chavan Chowk, Nandurbar, Dist. Nandurbar. .. Petitioners Versus 1. The State of Maharashtra, Through Secretary, Urban Development Department, Mantralaya, Mumbai ­ 400 032. 2. The Director, Town Planning, Maharashtra State, Pune. 2 wp 8561.11 3. The Deputy Director, Town Planning, Nasik Division, Nasik. 4. The Special Land Acquisition Officer No. 1, Nandurbar. 5. The Town Planning Officer, Dhule, Town Planning & Valuation Dept. Parola Road, Dhule. 6. Nandurbar Municipal Council, Nandurbar, through its Chief Officer. .. Respondents Shri J. R. Shah, Advocate for Petitioners. Shri R. P. Phatake, Addl. G. P. for Respondent Nos. 1 to 5. Shri A. B. Girase, Advocate for the Respondent No. 6. CORAM : S. V. GANGAPURWALA, J. DATE : 22ND DECEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The land of petitioner was reserved for play ground as reservation site No. 91 in the Development Plan of Nandurbar Municipal Council. On 19.06.2007 the petitioner issued purchase 3 wp 8561.11 notice U/Sec. 49 of the Maharashtra Regional Town Planning Act calling upon the respondent No. 1 to acquire the land or release the land from reservation. On 31.08.2007 the Desk Officer forwarded the purchase notice to the respondent No. 2. On 22.11.2007 the respondent No. 2 confirmed the purchase notice issued by the petitioners and on 14.12.2007 the respondent No. 6 in its General Body Meeting resolved that Municipal Council has no financial capacity to acquire the land and as such a proposal was sent to the State Government for 100% grant for acquisition and if the State Government agrees, then only the land be acquired. On 22.01.2008 the petitioners received communication from the respondent No. 6 informing that the Municipal Council has submitted the acquisition proposal with the Collector Nandurbar on 31.12.2007. 3. The Special Land Acquisition Officer i. e. the respondent No. 4 on 21.01.2008 returned the proposal as the same was incomplete. It seems thereafter no fresh proposal was sent by the respondent No. 6. The petitioner on 14.03.2011 applied for development permission of the land on the ground that reservation is deemed to have lapsed on 29.03.2011. The respondent No. 6 intimated the petitioners that the permission 4 wp 8561.11 cannot be granted and the application cannot be considered as the land is under reservation. Aggrieved thereby the petitioners filed an appeal U/Sec. 47 of the M. R. T. P. Act before the respondent No. 2 on 30.04.2011. The respondent No. 2 dismissed the appeal filed by the petitioners. Aggrieved thereby the present writ petition is filed. 4. Shri Girase, the learned counsel for the respondent No. 6 submits that, the respondent No. 6 had taken the steps as are contemplated U/Sec. 49 of the M. R. T. P. Act. The resolution was passed and even the proposal was sent for acquisition. As such nothing is remained to be done by the present respondent. All the steps were taken by the Municipal Council and said land is under reservation. The Municipal Council was right in rejecting the application. Even the Appellate Authority has properly considered this aspect. 5. According to Shri Shah, the learned counsel for the petitioners, as the land was not acquired within one year from the date of confirmation of notice, in such circumstances, the reservation shall be deemed to have lapsed. 5 wp 8561.11 6. With the assistance of learned counsel I have gone through the documents and the factual matrix. The chronology of the dates as narrated above is not disputed. Sec. 49(7) of the M. R. T. P. Act reads as under : THE MAHARASHTRA REGIONAL AND TOWN PLANNING ACT 1966 1. ....................... 49. ...................... (1) .................... [(7) If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication or restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation, designation, or, as the case may be, allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan.] 7. Sec. 49 (7) is a fetter on the powers of eminent domain. The same is with the object and view that the land of an 6 wp 8561.11 individual/citizen cannot be kept under reservation or he cannot be deprived of beneficial use of it in eternity. In the present case, all the steps have been taken by the petitioners. The purchase notice was issued on 19.06.2007. The same is also received by respondent and the respondent No. 2 has confirmed the said purchase notice on 14.12.2007. Thereafter, though the proposal for acquisition was sent by the Municipal Council, the same is returned back as it is incomplete on 21.01.2008 and no step has been taken for more than 1 year for acquisition of the land. In such circumstances, sub section 7 of Sec. 49 of the M. R. T. P. Act would operate and the said land would be deemed to have been released from the reservation and available for development. In the light of the above, the impugned orders cannot be sustained and are hereby set aside. Rule is made absolute in terms of prayer clauses “A” and “B”. No costs. Sd/­ [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11