Al-Azhar Yakub Contractor and Ors. Vs State of Maharashtra and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.9482 OF 2003

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1.Al-Azhar Yakub Contractor & ors....Petitioners.

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vs.

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1.State of Maharashtra & others....Respondents.

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Mr.Vishwajit P.Sawant, for Petitioners.
Mr.C.R.Sonawane, AGP for Respondent nos.1 & 3.

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CORAM: D.K.DESHMUKH &

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 V.M.KANADE, JJ.
DATED: 24th March,2008.

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P.C .:-

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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

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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

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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

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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

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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

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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.

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2.We have heard the learned Counsel appearing

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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

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Section 127 of the M.R.T.P.Act to the local

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authority, but the only ground on which the appeal of
the petitioners has been rejected is that in the

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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

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the ends of justice:-

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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.

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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.

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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

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and shall pass a fresh order in the appeal in
accordance with law.

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Rule is made absolute accordingly.

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No order as to costs.

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(D.K.DESHMUKH, J.)

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(V.M.KANADE, J.)

Al-Azhar Yakub Contractor and Ors. v. State of Maharashtra and Ors.

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Al-Azhar Yakub Contractor and Ors. v. State of Maharashtra and Ors.

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