- (1.)By this petition under Article 226 of the Constitution of India, the petitioners who are claiming to be the owners of the property, more particularly described in Paragraph 1 of the petition (hereinafter referred to as "the said property") have contended that the reservation of the said property in the sanctioned amended development plan of the City of Pune has lapsed. According to the case of the petitioners, in the year 1987, the said property was included within the limits of the Municipal Corporation of the City of Pune (second respondent) which is a Planning Authority within the meaning of Section 2(19) the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the MRTP Act"). On the request made by one of the petitioners, the Assistant Engineer, Development Plan of the second respondent informed that a portion of the said land forms a part of residential zone in the revised development plan. It is stated that one part is shown under reservation for a park and another part is shown for reservation for the development plan road. It is alleged that the eleventh petitioner started a preschool nursery and Junior and Senior Kindergarten school on a portion of said property. On 23rd August, 2004, a notice under subsection (1) of Section 127 of the MRTP Act was issued by the petitioners. On 11th May, 2005, another notice under the same provision was issued by the Advocate for the petitioners to the second respondent as well as to the State Government. On 29th June, 2006, a Zoning Certificate, was issued by the Assistant Engineer (Development Plan) of the Planning Authority stating that a part of the said property was reserved for a park and another part was reserved for a development plan road. On 6th December, 2007, a fresh notice under subsection (1) of Section 127 of the MRTP Act was served by the Advocate for the petitioners to the second respondent Municipal Corporation and the State Government. There is one more notice dated 21st April, 2009 issued under sub-section (1) of Section 127 of the MRTP Act to the second respondent as well as State Government. Another notice under the same provision was served to the same parties on 7th May, 2009. All the aforesaid notices relate to the said property. The said notice was replied to. It was contended that a copy of the 7/12 extract, property register card, city survey plan and other original documents were not forwarded with the said notice dated 7th May, 2009 and, therefore, the notice stands rejected. It is stated in the said communication dated 28th May, 2009 that the notice dated 17th May, 2005 was served to the second Respondent-Municipal Corporation and as per the resolution passed in the year 2005 by the General Body, the action of acquisition of the land has been already initiated. Therefore, the Municipal Corporation purported to reject even the said notice. There was a reply issued to the said communication by the Advocate for the petitioner on 19th June, 2009. In the petition, it is contended that though the resolutions were passed in the year 2005, no steps were taken for the acquisition of the said land. It is, therefore, contended that the reservation has lapsed.
(2.)There is a reply filed by Shri Sunil Indalkar, City Survey Officer No. 1, Pune, in which there is a reference to the notice issued by the Special Land Acquisition Officer No. 15, Pune on 24th June, 2006 for joint measurement of the property in question. It is stated that on 27th June, 2006, the measurement was fixed but as the owner was absent, measurement could not be carried out. It is stated that even in the year 2008, the measurement could not be carried out. It is stated that a proposal was again submitted by the Special Land Acquisition Officer on 15th February, 2010 for joint measurement. Thereafter, as per the direction of the Special Land Acquisition Officer, measurement was fixed on 8th September, 2010. There is a reply filed by Shri Prakash Nivruti Bongale, Assistant Director of Town Planning, Pune Branch, Pune on behalf of the State Government. Reliance is placed on the development plan for Pune (extended area) sanctioned on 9th November, 1992 by the State Government which came into force with effect from 1st January, 1993. It is stated that the said property is reserved for park as Reservation No. 1 in the said development plan. In Paragraph 12 of the said affidavit, it is contended that in the year 2005, as per Section 127 of the MRTP Act, making an application to the Collector within the period stipulated therein was sufficient step for acquisition and within six months from the service of notice dated 11th May, 2005, the resolutions were passed by the Pune Municipal Corporation for requesting the Collector to take steps for acquisition of the land. It is contended that the majority decision of the Apex Court in the case of Girnar Traders (II) v. State of Maharashtra and others, 2007 7 SCC 555) is being reconsidered by a larger bench of the Apex Court and, therefore, this Petition cannot be decided relying upon the decision in the case of Girnar Traders (II) . Lastly it is contended that the land is situated in the prohibited area of 500 yards from the security wall of High Energy Materials Research Laboratory as per the notification dated 27th April, 2002 under Section 3 of the Works of Defence Act, 1903. It is contended that the construction activity is not at all permitted on the said property.
(3.)There is a reply filed by Shri Sudhakar Telang, working as the Officer On Special Duty in the Land Acquisition Department of the second respondent. It is contended in the reply that under the Resolution No. 833 dated 23rd August, 2005 passed by the Standing Committee of the second respondent, an application has been made to the District Collector on 31st October, 2005 for initiating proceedings for acquisition of the said property. It is pointed out that a revised proposal was submitted by the second respondent on 23rd January. 2006. Thereafter, he has set out various steps taken for acquisition. Lastly it was stated that the joint measurement was scheduled on 8th September, 2010 at 11 a.m. It is alleged that the owner of the said property abused the officers of the second respondent and prevented the measurement being carried out by the second respondent on that day. It is, therefore, contended that there is no merit in the petition.