VIJAY KUMAR JAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, this petition is heard finally at the stage of admission.

(2.) This petition under Article 226 of the Constitution of India filed by the petitioner, prays for issuance of a writ for releasing the land of the petitioner i.e. Site No.87 out of Survey No.431/3 from the reservation in the development plan and the petitioner further prays for sanctioning the lay out plan pending with the office of the respondent. By the amended prayer clause, the petitioner has prayed for issuance of a writ directing the respondent No.6 Municipal Council to stop construction of 18 Mtrs. wide road in CTS No.431/3 till compensation is paid to the petitioner.

(3.) Such of the facts as are necessary for the decision of this petition may briefly be stated thus: According to the petitioner the petitioner had purchased 10 acres and 21 gunthas of agricultural land from Survey No.431 within the limits of Chalisgaon Municipal Council in the year 1963. In the year 1964, the respondent No.6 had granted approval to the lay out plan of Survey No.431/3. Chalisgaon Education Society, which is a registered public trust, had constructed a college building for educational purpose in Survey No.425 which is adjacent to land Survey No.431/2. The petitioner further submits that at the time of construction of the said college building, passage of 60 ft. wide ring road was blocked which was originally passing through CTS No.425 and 431. The fourth respondent by his communication dated 21.2.1972 proposed a change in the alignment of the said road. According to the petitioner he had submitted a fresh lay out plan in the year 1972. The aforesaid lay out plan was approved by the 4th respondent on 28.7.1972 and while granting approval to the said lay out plan submitted by the petitioner, the 4th respondent had stated that the Muslim panchas had objected for the modification or alignment of the road and hence requested the respondent no.6 to obtain consent from Muslim panchas before granting approval to the lay out plan submitted by the petitioner. According to the petitioner thereafter Chalisgaon Municipal Council i.e. respondent No.6 kept the said plan pending without granting any approval. The petitioner has also averred that some time on 7.2.1974 the respondent No.6 i.e. Chalisgaon Municipal Council declared its intention for modifying the development plan of Chalisgaon and accordingly invited objections and suggestions. In the said modification, land at Survey No.431 was marked as a Stadium, High School building and a garden. The petitioner submitted his objections by his letter dated 12.7.1975 and in pursuance to the objection of the petitioner, the reservation insofar as it related to the Stadium came to be released by the Urban Development and Public Health Department by its order dated 4.8.1976. The development plan was ultimately approved by the State Government in the year 1981 and in the said development plan, site No.86 was reserved for high school and site No.87 was reserved for garden which sites are out of land at Survey No.431/3. According to the petitioner, thereafter the Chalisgaon Municipal Council declared its intention on 15.10.1984 for modifying the development plan and accordingly a notice came to be published in the official gazette inviting objections and suggestions. Pursuant thereto, petitioner again submitted his objections to the proposed modification by his letter dated 7.1.1985. Again a notice came to be published inviting objections to the proposed modification of the development plan on 9.7.1987. The petitioner by his letters dated 31.8.1987 and 1.6.1988 raised objections for the modification of the development plan insofar as it related to land at Survey No.431/3. Pursuant to the objections of the petitioner, the respondent no.6 released 4831 Sq.meters of land at Site No.86 which was reserved for high school. The petitioner accordingly prepared a lay out plan for the area of 4831 sq.meters and submitted the same for sanction. The aforesaid lay out plan, submitted by the petitioner, came to be sanctioned by the Chalisgaon Municipal Council on 18.4.1986. According to the petitioner despite his objections, the site No.87 from out of land at Survey No.431/3 which was reserved for garden was not released. According to the petitioner, the respondents have failed to initiate the land acquisition proceedings as contemplated under the Act within the time which was specified and therefore, the petitioner issued a registered notice on 4.7.2002 under section 127 of the Maharashtra Regional and Town Planning Act, 1966. According to the petitioner, the said notice was received by the respondent No.3 on 9.7.2002 and was received by respondent No.6 on 8.7.2002. According to the petitioner, despite the receipt of the notice, issued by the petitioner under section 127 of the said Act, no steps have been initiated by the respondent authorities more particularly respondents Nos.5 and 6. The petitioner thereafter, after lapsing of the period specified under section 127 of the Act, submitted a lay out plan of site No.87 to the respondent No.4 through respondent No.6 on 4.3.2003 for its approval. The petitioner submitted various reminders/representations to the respondents pointing out that despite receipt of the notice under section 127 of the Act, no steps had been initiated by the respondents for acquisition of the said land. According to the petitioner, the respondent No.6 had informed the petitioner that respondent No.6 has passed a resolution for acquiring the land and therefore, the question of granting approval to the lay out plan submitted by the petitioner dose not arise as the proposal for acquisition proceedings was pending before the respondent No.5. Despite request of the petitioner for supplying him a copy of the resolution, the petitioner has not been provided a copy of the resolution passed by respondent No.6. The petitioner, therefore, states that without the land being acquired, the respondent No.6 is wholly incompetent in law to carry out any construction, and therefore, the action of respondent No.6 is a colourable exercise of power.