Judgment - F. I. REBELLO, J.

( 1 ) A declaration has been issued to acquire lands in which the petitioners are interested parties being owners thereof. The present petition is restricted to survey No. 3/1a situated at Satakbag, Tq.- telharam, Distt-Akola. It is the case of the petitioner that they are using part of the lands for burial of their deceased including fathers and fore fathers and there exist two Tombs. In the petition as amended, it is set out that after considering the requirement of land for the purpose for which it is sought to be acquired, for different purposes as set out in para no. 11, all are located in part of land under survey No. 3/ 2, whereas the remaining acquired lands are still available and lying vacant/unused for want of funds. It is then pointed out that the District sports Officer, Akola by communication dated 24-6-2004 to the Sub-Divisional Officer, Akot with copy to Municipal Council, Telhara stated that instead of 1. 04 Hectare of land allotted for the purpose of said authority, 2. 36 Hectares of land is required, which bears Survey Nos. 3/1, 3/2, 5/1 and 5/2 and with which the need of the District Sports Officer will stand satisfied. It is set out that the acquisition of land bearing no. 3/la is not at all required and therefore, the declaration that land is required, is arbitrary. It is further set out specifically by communication dated 11-12-2004 by District sports Officer, Akcta that land bearing Survey no. 3/la is not required for Sports Complex. It is, therefore, set out, that it is now clear that said survey No. is not at all required. In these circumstances, the relief prayed is to quash declaration under Section 6 of the Land acquisition Act in so far as 18 gunthas land from survey No. 3/1a. Interim relief was also sought. Petition was admitted on 25-10-1989 and stay was granted in terms of prayer clause (ii ).

( 2 ) ON behalf of Municipal Council/ respondent no. 3 an affidavit has been filed firstly on 15-8-2004. It is set out in the affidavit that the land, which is acquired, is covered under notification as per reservation No. 6. An additional affidavit came to be filed subsequent to the amendment on 8-2-2005. It is pointed out that letter issued by District Sports Officer dated 11-12-2004 is wrongly issued and that the District Sports Officer has no right to make such a communication. Further on 23-2-2005 the District Sports Officer clarified the position. It is pointed out that the letter dated 11-12- 2004 was issued under misconception and the acquired land is required. It is, therefore, set out the petition should be dismissed.

( 3 ) WE have heard learned counsel for the parties. There is no dispute that the acquisition is for a public purpose. There can be no further dispute that the lands in the town planning Scheme have been reserved for the purpose for which they have been acquired, under Section 126 of the M. R. T. P. Act, the notification of the plan has not been challenged. All that the Municipal Council/respondent has sought to do is to acquire the land which is reserved. That being the case, it is not possible to consider the contention that the land is not required. Apart from that, the District Sports officer cannot decide the present and future requirement of the respondent no. 3 that had been considered by the Competent Authority under M. R. T. P Act when the land was reserved for the public purpose. The first contention is rejected.

( 4 ) IT is also pointed out that the action is malafide. We do not find any specific averements nor is the person against whom purported allegations of malafides are sought to be made is a party to the litigation. In the absence of specific allegations and joinder of the party, it is not possible to consider that contention. That contention is, therefore, rejected.

( 5 ) IT is then submitted that the land is not required, as the respondents have acquired sufficient land. As pointed out earlier, acquired land forms part of reservation

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