B. P. DHARMADHIKARI, J. : - The petitioners No.1 to 3 claimed, themselves to be owners of Field Survey Nos. 96/3 and 98/2 of Mouza Khamgaon within Khamgaon Municipal Town limits of Khamgaon Municipal Council and they contended that in lieu of permission granted to them to develop open space in the sanctioned layout, they surrendered the land for 60 ft. wide. D. P. road after its reservation had lapsed. However, later on Municipal Council, has revoked that permission and hence said revocation is illegal. The prayer is to permit them to develop the open spaces. It is also their contention that after permission to develop was accorded, they have created third party interest in; favour of petitioners No.4 and 5. Respondent No. 1 in the present matter is Municipal Council, Khamgaon through its Chief Officer while respondent No. 2 is the Planning Authority functioning under provisions of Maharashtra Regional and Town Planning Act (hereinafter referred to as MRTP Act). We are also concerned with Maharashtra Municipal Councils Nagar Panchayat and Industrially Townships Act, 1965 (hereinafter referred to as Municipalities Act).

2. We have heard Shri Mohta, learned counsel for the petitioners on 6 -6 -2006 thereafter on 7 -6 -2006, 19 -6 -2006 and then on 22 -6 -2006. The matter was listed on 19 -6 -2006 and on that date, it was brought to our notice that petitioner No. 2 has expired in the month of March 2006. Civil Application No. 3610 of 6 to bring his legal heirs was moved on 22 -6 -2006 and it has already been lowed by separate order. On 19 -6 -2006, the residents of layouts in which open aces are provided also filed an application for intervention.

3. Petitioners No. 1 to 3 state that they are owners of field Survey Nos. /3 and 98/2 of Mouza Khamgaon and hence they wanted to develop the same y preparing layouts. They applied for permission to convert said fields for non agricultural purposes and said permission was granted to them on 30 -11 -1976 d 19 -6 -1979 respectively by Sub -Divisional Officer, Khamgaon. They were permitted to prepare the layout for residential purposes in these fields. The lay out accordingly prepared by the petitioners was sanctioned. The layout also left open spaces for public utility and for roads as required by rules in this respect.

4. The petitioners point out that respondents had prepared a Master Plan or development of Khamgaon town under the provisions of MRTP in 1976 and in it a reservation was shown in field Survey No. 96/3 for construction of 60 ft. Pimpalgaon Raja road. The proceedings for acquisition of land under reservation for said road were undertaken on the file of Special Land Acquisition Officer, Khamgaon vide Land Acquisition Case No. LAO -Khamgaon -5/84 -85 and a notice under section 9 of Land Acquisition Act, 1989 was also served upon the petitioners. However, these proceedings were dropped later on as Municipal Council was not in a position to make payment of compensation thereof to the petitioners.

5. In order dated 30 -11 -1976, area of 24989 ft. was shown to be under roads and nallahs in the said layouts and area of 7432.50 sq. ft. was shown as open space for public utility. In another plan sanctioned on 19 -6 -1979, area of 21626 sq. ft. was shown to be under nallahs and two spaces admeasuring 6426 sq. ft. and 4634 sq. ft. was shown as open spaces for public utility. Petitioners No. 1 to 3 were directed to surrender lands under the roads, nallahs and open spaces as layout as also open space for public utility to Municipal Council. The petitioners accordingly surrendered the land by executing surrender deed dated 18 -11 -1980. The petitioners contend that land under 60 ft. D.P. road was not surrendered and remained with petitioners No. 1 to 3. The proceedings were later on dropped and Municipal Council was unable to give effect to said D.P. Reservation. The reservation lapsed after 10 years i.e. in the year 1986. In the proposed revised plan,