D.R Dhanuka, J.:— By this petition filed under Article 226 of Constitution of India, the petitioners have impugned acquisition proceedings commenced by the appropriate authority in respect of the land bearing Gat No. 808/2 in Nasik City commenced under section 126 of Maharashtra Regional and Town Planning Act, 1966 culminating in impugned award dated 23rd September, 1989 made under section 11 of Land Acquisition Act No. 1 of 1894.
2. The petitioners claim to be the owners of the land bearing Gat No. 808/2 situate in Nasik City. The land under acquisition consists of land bearing 85 ares i.e about 8500 sq. mtrs. forming part of the land bearing Gat No. 808/2.
3. On 29th November, 1980, the development plan in respect of Nasik City came into force after the same was duly sanctioned by the State Government. In the said development plan, the petition land, was reserved for public purposes namely stables and 100 ft. wide road.
4. At the instance of Nasik Municipal Corporation, proceedings for acquisition of the petition land were commenced. On 14th July, 1987, a notification was issued by the Commissioner, Nasik Division, bearing Notification No. 2030/87 as contemplated under section 126(2) and 126(4) of Maharashtra Regional and Town Planning Act, 1966 read with section 6 of the Land Acquisition Act No. 1 of 1894 for acquisition of the land in accordance with the above referred reservation. On 6th August, 1987, the said notification was duly published in Maharashtra Government Gazette. The said notification was later on published in local newspaper and was published also in Village Chawdi. Notices were issued to the individual owners as contemplated under section 9 of the Land Acquisition Act 1 of 1894.
5. On 25th September, 1989, this petition was filed. On 27th September, 1989, the impugned award was declared and published. The petition was admitted by Division Bench of this Court and ad interim relief was granted in terms of prayer (d) of the petition. In view of the above referred order of injunction, the respondents were restrained from proceeding with the acquisition of land admeasuring 85 ares and from taking possession of the said land forming part of Gat No. 606/2.
6. There is no much merit in the challenge to the acquisition proceedings in so far as the cause of action was formulated by the petitioners on the date when the petition was filed. The petitioners however appear to have a strong case for setting aside of the said award on the ground that the reservation made in the development plan in respect of the petition land as far back as on 29th November, 1980 was lawfully deleted by the State Government by its notification dated 28th June, 1993 published in Maharashtra Government Gazette on 30th September, 1993. It was held by Division Bench of our High Court in the case of Industries Development and Investment Company Private Limited v. State of Maharashtra, reported in 1988 Mah LJ 1027 : AIR 1989 Bom 156 that the public purpose specified in declaration must continue to exist until land vests in the State. It appears to be well settled law that if the specified public purpose ceases to exist before the date of vesting, the award in question becomes unenforceable and the acquisition proceedings lapse. In this petition, the principal question required to be decided is as to whether having regard to the facts of this case, the petitioners are entitled to invoke the ratio of the judgment of this Court in the above referred case.
7. There is no much dispute about the relevant facts having bearing on this aspect of the controversy in view of clear statements appearing in the affidavit filed on behalf of the petitioners, on behalf of Nasik Municipal Corporation and Government of Maharashtra.
8. On or about 26th December, 1990, the revised draft development plea was submitted by Nasik Municipal Corporation to the State Government for making of certain modifications including in respect of the land bearing survey No. 802/2 i.e the petition land. The Nasik Municipal Corporation recommended that the petition land be retained for the public purpose as set out in the original development plan duly sanctioned by the State Government on 29th November, 1980 and the same be reserved for additional public purpose of “informal housing”. The State Government did not accept the recommendation of Nasik Municipal Corporation. The State Government consulted the Director of Town Planning and ultimately passed its final orders as contemplated under section 31 of the Maharashtra Regional and Town Planning Act, 1966. As a result of the final orders of the State Government, not to the liking of the Nasik Municipal Corporation or the Municipal Commissioner, revised development plan of Nasik Municipal Corporation was sanctioned by the State Government on 28th June, 1993 and the same was published in the Maharashtra Government Gazette on 30th September, 1993 in Part I at pages 1397 to 1420. According to the revised development plan, the pre-existing reservation in respect of the petition land was deleted. The western part of the land formerly reserved under the development plan sanctioned on 29th November, 1980 was included in commercial zone and eastern part thereof was included in residential zone.
9. We are firmly of the opinion that the revised development plan as sanctioned by the State Government on 30th September, 1993 was and is valid and it binds all the parties.
10. It appears that the Municipal Commissioner of Nasik Municipal Corporation thereafter made a representation to the State Government to the effect that the revised development plan ought not to have been sanctioned by the State Government by deleting the reservation in respect of the petition land. On 19th August, 1994, a corrigendum was issued by the State Government stating therein that instead of reading the deletion of reservation in respect of the petition land, the relevant part of earlier notification dated 28th June, 1993 should be read as if the petition land was reserved for informal housing and stables.
11. The learned counsel for the petitioner has submitted that the impugned corrigendum dated 19th August, 1994 is nullity. If a valid modification in the development land was required to be modified once again, the prescribed authorities were bound to follow the procedure prescribed in section 37 of the Maharashtra Regional and Town Planning Act, 1966 and the impugned corrigendum could not have been issued merely at the instance of the Municipal Commissioner. It is nobody's case that the Nasik Municipal Corporation itself had sought the modification of the development plan as already sanctioned by the State Government by its order dated 28th June, 1993. We have no hesitation in accepting this submission of the learned counsel for the petitioner. If the earlier notification dated 28th June, 1993 referred to deletion of the reservation in respect of the petition land as a result of printing error or some such error, the Court would have considered the matter in a different perspective. We are, however, of the view that the earlier notification dated 28th June, 1993 was issued by the State Government in exercise of its powers under section 31 of Maharashtra Regional and Town Planning Act, 1966 as a result of conscious decision taken by the State Government and the subsequent corrigendum represents change of mind on the part of the State of Maharashtra merely at the instance of the Municipal Commissioner without compliance with section 37 of the Act, which exercise is not permissible in law.
12. It is necessary to refer to the affidavit of Shri M.S Petare, Section Officer, Urban Development Department, Government of Maharashtra, on this aspect. Shri Raghuvanshi, the learned Assistant Government Pleader has fairly invited the attention of the Court to paras 2 and 3 of the said affidavit. It is clear from the said paras of the said affidavit that the earlier reservation in respect of the petition land was deleted as a result of conscious decision by the State Government and the zone and user of the land was also changed in accordance with the request received inter alia from one Dr. Purandare and several others.
13. It appears that respondent No. 1 had made two awards under section 11 of Land Acquisition Act 1 of 1894 for public purpose specified in the earlier development plan i.e award dated 29th April, 1989 and award dated 23rd September, 1989. It appears that the respondent No. 1 has already enforced the said awards except in respect of land covered under Writ Petition No. 4023 of 1989 and Writ Petition No. 4024 of 1989. There is some controversy in respect of land covered under Writ Petition No. 4337 of 1989 and land covered under Writ Petition No. 2573 of 1989. We make it clear that our order passed in Writ Petition No. 4023 of 1989 and Writ Petition No. 4024 of 1989 shall not affect the vesting of the land which has already taken place in favour of the respondents concerned. In all those cases, where vesting has already taken place, subsequent deletion of the reservation of the land in the revised development plan is of no legal consequence whatsoever.
14. We have allowed the parties to raise contentions based on subsequent developments in light of their assertions in the affidavits filed in this Court without insisting on formal amendment of the writ petition. All the learned counsel appearing at the hearing of the petition are agreeable to the above referred procedure being adopted.
15. In the result, Writ Petition No. 4023 of 1989 succeeds. Rule is made absolute. The impugned award dated 23rd September, 1989 and the acquisition notices pertaining thereto in so far as the petition land is concerned are hereby quashed except in respect of the land pertaining to 30 mtrs. wide road. The respondents are restrained from disturbing the possession of the petitioners in respect of the petitioners' land in enforcement of the impugned award. The petitioners through their Advocate Shri S.M Gorwadkar give an undertaking to the Court that the petitioners shall hand over vacant possession of the land pertaining to 30 mtrs. wide road to Nasik Municipal Corporation within two weeks from today. The written undertaking in terms aforesaid shall be filed within one week from today. Shri Gorwadkar also makes a statement at the bar after taking instructions that the petitioners do not claim any monetary compensation for handing over of the land pertaining to 30 meters wide road referred to in para. 3 of the affidavit in rejoinder dated 6th October, 1994. The petitioners shall be at liberty to make the representation to the Nasik Municipal Corporation for grant of FSI in lieu thereof if permissible under the Development Control Rules.
16. Having regard to the facts and circumstances of the case, there shall be no order as to costs.
Petition allowed.