Abhilasha Kumari, J. - (1.)BY filing this petition under Article 226 of the Constitution of India, the petitioners have prayed for the issuance of a writ of mandamus or any other writ or order to quash and set aside the reservation on the land bearing City Survey No. 3848, Tika No. 86, situated at Navsari Town, and to declare that the reservation qua the land in question, is deemed to have lapsed and that the said land stands released from reservation. It is further prayed that the action of the respondent No. 3 in re -reserving the petitioners' land in the revised Draft Development Plan be quashed and set aside as being illegal, and the preliminary Notification dated 18 -8 -2007 showing that the land of the petitioners is proposed to be re -reserved, also be quashed and set aside.
(2.)RULE was issued on 21 -4 -2008. In the facts and circumstances of the case and, with the consent of the learned Counsel for the respective parties, the petition is being heard and finally decided today.
The brief facts of the case, as emerging from a perusal of the averments made in the petition as well as the documents annexed thereto, are that the petitioners are co -owners of the land bearing Survey No. 3848, Tika No. 86, situated at Navsari Town. By Notification dated 16 -3 -1985, issued under the provisions of Section 17(b) of the Gujarat Town Planning and Urban Development Act, 1976 ("the Town Planning Act" for short), the land of the petitioners was placed under reservation for the purpose of construction of Municipal Staff Quarters. It is averred that one of the co -owners of the land, namely, Shri Amrutlal Maganlal Desai had filed Special Civil Application No. 3101 of 1992, challenging the reservation of the land in question. This petition was rejected by the Court on the ground that the petitioner was unable to substantiate his challenge to the reservation. Subsequently, Shri Amrutlal Maganlal Desai had issued a notice dated 17 -5 -1995 to the respondents Nos. 2 and 3 which, admittedly was not in consonance with the requirements of Section 20(2) of the Town Planning Act. However, the said co -owner Shri Amrutlal Maganlal Desai, co -owner of the land in question, issued another notice dated 18 -9 -1995 through an advocate, calling upon the respondents to initiate action for the acquisition of land, either by agreement or through the process of acquisition, within a period of six months from the date of issue of the notice, failing which the reservation upon the land in question shall be deemed to have lapsed, and the land would stand de -reserved. It is the case of the petitioners that inspite of the service of the notice under Section 20(2) of the Town Planning Act, no action whatsoever has been initiated by the respondents and, therefore, a right has crystalised and accrued in favour of the land owners, including the petitioners, as contemplated by the provisions of Section 20(2) of the Town Planning Act, upon coming into force of the deemed fiction. The grievance of the petitioners is that instead of de -reserving their land as per the provisions of Section 20(2) of the Town Planning Act, the land of the petitioners is proposed to be reserved vide preliminary Notification dated 18 -8 -2007. Being aggrieved by the above stated acts of omission and commission of the respondents, the petitioners have filed the present petition.

(3.)MR . Ajay R. Mehta, learned Counsel for the petitioners has advanced the following submissions:
(a) That there is a catena of judicial pronouncements, including those of the Supreme Court, elucidating the legal position with regard to Section 20 of the Town Planning Act and whereby it has been specifically held by the Supreme Court, that once the legal fiction under the provisions of Section 20(2) of the Act comes into existence, the authorities cannot be heard to assert any right with respect of the said land and this bar will extend even to the exercise of power under Section 21 of the Act, which provides for revision of the Development Plan after every ten years. It is submitted that once the period of 10 years has elapsed and the owner or any person interested in the land has served a notice upon the concerned authority requiring it to acquire the land within six months, and if, within the stipulated period of six months from the date of service of the notice, the land is not acquired and no steps have commenced for its acquisition, then the reservation upon the land in question shall be deemed to have lapsed. As the co -owner of the land has served a legal and valid notice dated 18 -9 -1995 as per the requirements of Section 20(2) of the Act, and since the respondents have not acquired the land in question within six months from the issuance thereof, the deeming fiction has already come into effect in respect of the land of the petitioners, and the continued reservation upon the land and the proposed re -reservation by the respondent No. 1 is absolutely against the settled principles of law, as laid down in (i) Bhavnagar University v. : AIR2003SC511 , Girnar Traders v. : AIR2007SC3180 , Bhikhubhai Vithalbhai Patel v. : AIR2008SC1771 , Balwantbhai Maganlal Chauhan v. : (2001)3GLR1963 and Palitana Sugar Mill Pvt. Ltd. v. : (2001)4GLR3048 . Elaborating upon the above submissions, Mr. Ajay R. Mehta, learned Counsel for the petitioners, has submitted that no Notification under the provisions of Section 4 of the Land Acquisition Act, 1894, which is a preliminary step for the acquisition of the land, has been issued till date and in the said circumstances, it cannot be said that the respondents have commenced proceedings under the Land Acquisition Act, and any intra -departmental correspondence, which may have been carried out can, by no stretch of imagination, be construed as commencement of the proceedings under the Land Acquisition Act. It is further submitted that similarly, the respondents have not entered into an agreement to acquire the land in question within the stipulated period and, therefore, by operation of the provisions of Sub -section (2) of Section 20 of the Town Planning Act, the reservation upon the land of the petitioners is deemed to have lapsed and the petitioners are entitled to a declaration that the land stands de -reserved. It is further urged, that instead of giving effect to the provisions of Sub -section (2) of Section 20 of the Town Planing Act, the respondent No. 1 has issued a Notification dated 18 -8 -2007, whereby the land is sought to be re -reserved. The petitioners have also issued letter dated 4 -2 -2008, to the respondent No. 2 whereby the said respondent has been reminded of the earlier notice dated 18 -9 -1995, and it has been requested that the land of the petitioners be released from reservation, but no action has been taken to de -reserve the land. It is forcefully submitted by the learned Counsel for the petitioners that after the reservation as per the provisions of Sub -section (2) of Section 20 of the Town Planning Act, the land stands de -reserved by virtue of the deeming Section and by not releasing the land from reservation and, on the contrary by proposing to re -reserve the same, the respondents are acting in direct contravention of the pronouncements of the Supreme Court and this Court, as quoted hereinabove.

(b) That it is not denied that Shri Amrutlal Maganlal Desai had filed Special Civil Application No. 2156 of 1996, which was dismissed by this Court on the ground of suppression of facts, and not on merits. It is submitted that the said petition was dismissed because the petitioner therein failed to mention that he had filed Special Civil Application No. 3101 of 1992 earlier, which had been rejected. Another ground for rejection of Special Civil Application No. 2156 of 1996 was that the reply of the respondent No. 2 to the notice dated 17"5 -95 was not put on the record of the petition and, therefore, the Court proceeded to dismiss the petition on the ground of suppressio veri and suggestio falsi. It is emphasised by the learned Counsel for the petitioners, that while dismissing the petition, the Court did not go into the merits of the case, as is evident from the order dated 20 -6 -1996, annexed as Annexure "B" to the petition and since the petition was dismissed solely on the ground of suppression of facts and not on merits, the bar of res judicata will not come in the way of the petitioners in filing the present petition. It is clarified by the learned Counsel for the petitioners that Review Application No. 1193 of 1996 was preferred by Shri Amrutlal Maganlal Desai against order dated 20 -6 -1996, which was dismissed and a Letters Patent Appeal against the order of dismissal of the Review Application was withdrawn by the appellant, with a view to prefer a Civil Suit. Accordingly, a Civil Suit was filed by Shri Amrutlal Maganlal Desai but during the pendency thereof, he expired and the same was dismissed for non -prosecution, as his heirs and legal representatives were not brought on record. It is emphasised that though the present petitioners are also co -owners of the land in question, the earlier petitions have been filed by Shri Amrutlal Maganlal Desai and not by them and, therefore, the filing of the present petition is not debarred on the ground of res judicata, constructive res judicata or issue estoppel. In support of these submissions, the learned Counsel for the petitioners has placed reliance upon Daryao v. : [1962]1SCR574 , Krishan Lal v. : (1995)IILLJ718SC and N. Annappa v. : (1999)5SCC188 .

(c) That admittedly, the notice dated 18 -9 -1995 under the provisions of Section 20(2) of the Town Planning Act was issued by the co -owner of the petitioners i.e. late Shri Amrutlal Maganlal Desai but looking to the definition of "owner" as defined in Section 2(18) of the Town Planning Act, it cannot be denied that the present petitioners are also covered by the said definition and are entitled to receive any benefit in relation to the property in question which would have accrued upon the co -owner i.e. Shri Amrutlal Maganlal Desai, who had issued the notice. It is contended by the learned Counsel for the petitioners that even otherwise by virtue of the provisions of Section 20(2) of the Town Planing Act, the deeming fiction automatically comes into play after the expiry of six months from the date of issuance of the notice and the land stands de -reserved, if it has not been acquired, or no steps have been taken for its acquisition, within the stipulated period of six months. The submission of the learned Counsel for the petitioners is to the effect that the deeming fiction relates to the land in question and not to the person giving the notice and its effect has to be given to the land, after the expiry of six months of service of notice, if such land has not been acquired. It is strongly urged by Mr. Ajay R. Mehta that the land has not been acquired within six months from the date of notice i.e. 18 -9 -1995, and nor have effective steps for its acquisition been commenced within the stipulated period of time and, therefore, the action of the respondent in seeking to re -reserve the land and keep it under reservation in perpetuity, is against the settled principles of law.

(d) It is alternatively submitted by the learned Counsel for the petitioners and without prejudice to the other submissions made by him, that the conduct of the respondents Nos. 2 and 3 qua the reservation of the land in question amounts to hostile discrimination and is motivated by malafide intentions, for reasons best known to the concerned authorities. It is submitted that various parcels of land were reserved by the Final Development Plan of 6 -3 -1985, which included the land of the petitioners. However, the Chief Town Planer rejected the proposal for reservation submitted by the said respondents, regarding the lands at Sr. Nos. 1 to 10 and 17 of the Resolution dated 25 -10 -2004, a copy of which is attached as Annexure "IV" to the reply filed by the respondent No. 2, on the ground that the lands were "Gamthal" lands. It is submitted by Mr. Ajay R. Mehta that although the opinion of the Chief Town Planner was accepted by respondent Nos. 2 and 3 in respect of all other similarly situated lands, but in the case of the petitioners' land, the opinion of the Chief Town Planer was not accepted and reservation was continued in the Draft Development Plan, without assigning any valid reason. According to the learned Counsel for the petitioners, this action, on the part of the respondents Nos. 2 and 3, amounts to nothing short of hostile discrimination and since there is no reason why the land of the petitioners should continue to be placed under reservation when other similarly situated lands have been de -reserved, shows that the action of the said respondents is motivated by malafide intentions. It is emphasised by Mr. Ajay R. Mehta, learned Counsel for the petitioners, that the reason for de -reserving the other lands, as mentioned in Resolution dated 25 -10 -2004, is not only the opinion of the Chief Town Planner but reference has also been made to the judgments of the Supreme Court, and if the respondent -authorities are alive to the legal position in respect of the other lands, the same treatment should have been meted out to the petitioners as well.