Shri Adgonda Balgonda Patil & 2 ors v. Sangli-Miraj & Kupwad Municipal Corpn. & 2 ors

Mr. Tejpal Ingale for the petitioners. Mr. Sudhir Prabhu for the respondent No.1. Mr. S.R. Nargolkar, AGP, for the respondents No.2 and 3. R.M. SAVANT, JJ. CORAM: S.B. MHASE & DATED : 11TH SEPTEMBER, 2009. P.C.:

Heard. Rule. With the consent of the parties, made returnable forthwith and heard.

The petitioners land bearing Revisional Survey No.185/A (Old Survey No.317/A) admeasuring about 7680 sq. mtrs. situated at Kupwad, Taluka Miraj, District Sangli was reserved in the sanctioned Regional Plan : 2 : of Kupwad City since 1985 as Reservation Site No.3 for a garden. The Regional Plan has been sanctioned on 15th March, 1985. Since the land was under reservation for more than ten years and the respondent- Municipal Corporation and the Planning Authority did not acquire the said land, the petitioners issued a Notice under section 127 of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as “the said Act”) on 18th January, 2007. It appears from the Affidavit that has been filed on behalf of the respondents that thereafter, the proposal was placed by the officers of the respondents before the General Body to initiate acquisition proceedings in respect of the petitioners’ land. However, the General Body, by Resolution dated 17th January, 2008, has passed a Resolution to the effect that the petitioners land should not be acquired. In short, the Planning Authority is now not interested in the acquisition of the said land. Therefore, as provided under section 127 of the said Act, there is no acquisition proposal and the acquisition has not commenced within a period of six months. Resultantly, the reservation has lapsed. Since the reservation has lapsed, the petitioners approached the respondents for building permission. The said building permission has been rejected on the ground that the land is under reservation and, therefore, permission cannot be granted. Therefore, the petitioners are before this court. : 3 :

The learned Assistant Government Pleader has submitted an Affidavit and admitted that the land is under reservation, and that the General Body has passed a Resolution to the effect that the acquisition proceedings should not be initiated in respect of the said land. He, however, contended that there is an Appeal provided under section 47 of the said Act as against the order passed by the respondent No.1-Corporation rejecting the building permission and, therefore, the Petition is not tenable.

3. What is important to be noted is that under section 127 of the said Act, the reservation has lapsed. Since there was no commencement of the acquisition proceedings as contemplated under section 127 of the said Act and since the reservation has lapsed, the petitioners are entitled to develop the said plot and, therefore, the petitioners have submitted the proposal for building permission. The said proposal has been rejected, obviously on a ground which is not available to the respondents because once the reservation has lapsed, on the same ground building permission cannot be refused by the respondents. Therefore, under these circumstances, even though Appeal is available, it is not an equally efficacious remedy for the petitioners because the respondents will repeatedly go on playing the same : 4 : tune i.e. that the land is under reservation, conveniently forgetting that the reservation has lapsed under section 127 of the said Act.

It has been brought to the notice of this court that the revision of the development plan is going on. But, once the reservation has lapsed, the said land cannot be considered for reservation again under the revised plan. The respondent-Planning Authority cannot keep a clog on the property of the citizens for years together and, therefore, even if the revised development plan again shows reservation of the said land, the said reservation will not be applicable in case of the petitioners.

In the result, the Petition requires to be allowed and is, accordingly, allowed. The order refusing building permission dated 13th April, 2009, is hereby quashed and set aside. It is directed that the petitioner would be entitled for building permission and the respondents cannot refuse it only on the ground that the land in question is under reservation.