The duty of State Authorities to preserve open spaces and the importance of reservation for public parks in the development scheme.

ORDER :

1. Leave granted.

2. Heard learned counsel for the parties.

3. The facts in short giving rise to the present appeal indicate that way back in the year 1967 the disputed property was reserved for a garden in the development plan, prepared under the provisions of Maharashtra Regional and Town Planning Act, 1966 (in short 'the MRTP Act'). The said development plan was revised in the year 1991-1992. The reservation of the disputed property was further continued for the purpose of a garden. On 5.10.1992, the respondent No's 2 to 12 and deceased named Sitaram V. Deorukhkar entered into an agreement for sale dated 5.10.1992, in favour of respondent No. 13. On 18.10.1992, the power of attorney had been executed in favour of respondent no. 13 to institute a suit in relation to the property. Power of attorney served a notice for purchase under Section 127 of the MRTP Act on 25.07.2007. The Municipal Corporation gave its approval to initiate the purchase proceedings of the land. On 19.10.2007, Improvement Committee, passed resolution No. 126 and recommended to the corporation to acquire the land of Village Borivali reserved for public purpose i.e. for the garden. On 21.01.2008, a proposal was submitted to the collector for the acquisition of the land in question. Thus the Corporation submitted that it had taken the effective steps within six months from the date of the purchase notice for an acquisition of the land as per the then prevailing time limit. On 25.2.2008, the Petitioner- Attorney had been informed that his application for permission to allow development on land under reference could not be considered under the provisions of the MRTP Act. Consequently, a writ petition was preferred by the respondent Nos. 1 to 13 in the High Court i.e. W.P.No. 2535 of 2008. Prayer made in the writ petition was that the reservation may be quashed and set aside as it had lapsed, and permission may be given to them to develop the said property in accordance with the Rules and Regulations of the Corporation. The High Court by the impugned order held that the reservation had lapsed, and that the land is deemed to have been released from the reservation, and that the area reserved for the garden has become available to the owner thereof for the purpose of development. Hence the Corporation has preferred the appeal.

4. We have heard learned counsel appearing for the parties at length. No doubt about it that a bare reading of Section 127 of the MRTP Act makes it clear that reservation would lapse in case acquisition is not completed within ten years from the date on which a final Regional plan or final Development plan comes into force or if declaration under sub section (2) or (4) of Section 126 is not published in the official gazette within such period, the owner or any person interested in the land may serve notice for purchase on the Planning Authority, Development Authority, or as the case may be to Appropriate Authority; and if within six months from the date of the service of such notice, the land is not acquired or no steps are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development, as otherwise permissible in the case of adjacent land at the relevant time.

5. The Municipal Corporation had filed a Map (Annexure P-4) which indicates that the area marked with the green color is reserved for the purpose of the garden, whereas the area marked with red cross marks in the green color portion is disputed portion which is encircled by the other area reserved for the garden. The land under appeal is 3090 Sq. yard, whereas the total area reserved for the garden, is 90,500 Sq. yard. The area in question had been reserved for garden and it appears that Municipal Corporation had taken the steps which were in their hands in order to pr