Karnataka High Court
Chaduranga Kantharaj Urs vs State Of Karnataka on 4 October, 2017
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.13599/2014 (BDA-)
BETWEEN
1. CHADURANGA KANTHARAJ URS,
S/O LATE K.B.RAMACHANDRARAJ URS,
AGED ABOUT 39 YEARS,
GAYATRI VIHAR,
BANGALORE PALACE GROUND,
RAMANA MAHARSHI ROAD,
BANGALORE-560 080.
2. TRIPURASUNDARI DEVI AVARU,
W/O SWAROOP ANAND,
AGED ABOUT 47 YEARS,
GAYATRI VIHAR,
BANGALORE PALACE GROUND,
RAMANA MAHARSHI ROAD,
BANGALORE-560 080.
3. KIRTIMALINIDEVI AVARU,
D/O LATE SIRDAR K.B.RAMACHANDRARAJ URS,
AGED ABOUT 42 YEARS
GAYATRI VIHAR
BANGALORE PALACE GROUND
RAMANA MAHARSHI ROAD
BANGALORE-560 080. ... PETITIONERS
(By Sri.L.GOVINDARAJ, ADV. FOR P1 & P3;
Sri D.R.RAVISHANKAR, ADV. FOR P2)
AND
1. STATE OF KARNATAKA,
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA,
2
BANGALORE-560001,
REP BY ITS SECRETARY.
2. BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE-560020
BY ITS COMMISSIONER.
3. DEEPAMALINI DEVI AVARU,
W/O JAIDEEP BHALE RAO
AGED ABOUT 44 YEARS
R/AT 304, BRIGADE PARKWAY,
NO.2636, II MAIN ROAD,
V.V.MOHALLA, MYSORE-570 002.
4. M/s EMBASSY PROPERTY DEVELOPMENTS PVT.LTD.,
(FORMERLY KNOWN AS DYNASTY DEVELOPERS PVT.LTD.)
NO.150, 1ST FLOOR,
EMBASSY POINT, INFANTRY ROAD,
BANGALORE-560 001,
REP.BY ITS DIRECTOR,
NARPAT SINGH CHORARIA.
5. RAJU N.C.,
S/O LATE S.NARASIMHARAJU,
AGED ABOUT 43 YEARS,
R/AT NO.133, 4TH CROSS,
RMV II STAGE,
BANGALORE-560 094. ... RESPONDENTS
(AMENDED V/C/O DT.13.11.2014)
(By Sri.VIJAYAKUMAR A.PATIL, AGA FOR R1;
Sri D.N.NANJUNDA REDDY, SR.COUNSEL FOR
Sri G.LAKSHMEESH RAO, ADV. FOR R2;
Sri VYASA KIRAN UPADHYA B., ADV. FOR R3;
Sri SURAJ GOVIND RAJ, ADV. FOR R4;
Sri C.M.NAGABHUSHAN, ADV. FOR
Sri K.S.NARAYANSWAMY, ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ENDORSEMENT DT.27.1.2014, ISSUED BY THE R2, VIDE ANN-L;
AND TO DIRECT THE R1 TO DELETE FROM THE MASTER PLAN
DELINEATING THE PROPERTY AS ONE MENT FOR PULBIC & SEMI
3
PUBLIC USE VIDE ANN-F; AND TO DIRECT THE R1 TO PROCEED
AS NOTIFIED IN THE PUBLIC NOTICE DT.4.7.2008, IN KANNADA
PRABHA & THERE UPON PROCEED WITH THE SAME IN
ACCORDANCE WITH LAW VIDE ANN-J; AND TO DECLARE THAT
THE PROPERTY IN QUESTION COULD NOT HAVE BEEN NOTIFIED
AS PUBLIC & SEMI PUBLIC IN THE COMPREHENSIVE
DEVELOPMENT PLAN VIDE ANN-F, AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 29.8.2017, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Petitioners have filed this writ petition challenging the endorsement dated 27.01.2014 Annexure-L issued by the Commissioner, Bengaluru Development Authority (for short 'BDA') to the State Government, Department of Urban Development, Government of Karnataka, with a copy marked to 4th respondent (Developer of petitioners).
2. By the said endorsement BDA has informed the petitioners that an extent of 1 acre of land comprised in Site No.17 situated at 16th Cross, Sadashivanagar, Bengaluru, was part of Brindavan granted free of cost in favour of BDA by the Maharaja of Mysuru and therefore, the said land belonged to the BDA. Petitioners have also 4 sought for a direction to the State Government to delete from the master plan the property in question which has been shown as one meant for public and semi public use. They have also sought for further direction to the State Government to proceed with the public notice dated 04.07.2008 vide Annexure-J published in the Kannada Prabha, Kannada Daily newspaper calling for objections for the proposed change in land use of property No.17 from public and semi public use to residential use as per the request made by 4th respondent - Developer and in terms of Section 14A of the Karnataka Town and Country Planning Act, 1961 (for short 'the Act').
3. Briefly stated, facts leading to this writ petition are, petitioners 1 to 3 and 3rd respondent claim to be joint owners of property bearing Municipal No.17 measuring 43264 sq. ft. situated at 16th Cross, Sadashivanagar, Ward No.99, Bengaluru. It was originally owned by His Highness Jayachamaraja Wadeyar, the erstwhile Maharaja of Mysuru. Petitioners claim that this property was granted by the Maharaja in favour of his first cousin 5 Rajkumari Leelavathideviavaru on 28.05.1958. Order of grant is produced at Annexure-A. Upon the demise of Rajkumari Leelavathideviavaru in 1959, the property devolved on her husband Sardar K.Basavaraj Urs and her only son Sardar K.B. Ramachandra Raj Urs. Sardar K.Basavaraj Urs died on 30.09.1980 leaving behind his son Sardar K.B. Ramachandra Raj Urs. It is the case of petitioners that Sardar K.B. Ramachandra Raj Urs and petitioners 1 to 3 along with 3rd respondent have been in peaceful possession of property which also consists of samadhis (Graves) of their great grandmother and mother. There is a temple of Lord Narmadeshwara, popularly known as Brindavana.
4. It is the further case of petitioners that during the year 1997, Sardar K.B. Ramachandra Raj Urs, petitioners and 3rd respondent entered into oral partition which was later on registered before the Sub-Registrar, Gandhinagar, Bengaluru on 16.01.2000. As per the said registered deed produced at Annexure-B, in the schedule property, all sharers were entitled for 1/5th share each. Sardar K.B. 6 Ramachandra Raj Urs died on 30.06.2011, hence the schedule property devolved upon petitioners. Their names were entered in the katha as owners. They have paid tax. The petitioners have produced Annexure-C katha certificate issued by the BBMP on 17.08.2013. It discloses the names of petitioners, 3rd respondent and father of 3rd petitioner - Sardar K.B. Ramachandra Raj Urs. Annexure- C1 is the tax paid receipt dated 16.08.2013.
5. In order to develop the property, petitioners and 3rd respondent claim to have entered into a joint development agreement with 4th respondent during the year 2005. They have executed a general power of attorney in favour of 4th respondent in that regard.
6. When matter stood thus, BDA prepared a draft master plan for the City of Bengaluru and invited objections for the same. In the draft master plan, petitioners noticed that their property was listed under the category of public and semi public use. Petitioners filed their objections and brought to the notice of the authority 7 that they were the owners of the property and katha stood in their names. They also requested permission for development of their property by effecting change of land use.
7. As there was no response by the BDA, 1st petitioner wrote to the BDA requesting them to declassify the use and to classify the property for residential use. This letter dated 18.10.2007 is produced along with the writ petition at Annexure-H. Petitioners also approached the BDA seeking change of land use from public and semi public use to residential use.
8. Accordingly, the BDA processed the request made by petitioners and issued a public notice on 04.07.2008 in 'Kannada Prabha', Kannada daily newspaper calling for objections from general public. This is evident from Annexure-J. Petitioners have also obtained no objection certificates from BESCOM, Airport Authority as well as BSNL as demanded by the BDA thereby complying with all the required procedure insisted upon by the BDA for 8 issuance of change of land use and also for deleting the property from public and semi public use. However, the BDA, contrary to the steps initiated by it, made a strange turn around to claim that property in question belonged to them and that change of land use sought could not be granted. Impugned endorsement dated 27.01.2014 Annexure-L was issued in this regard.
9. Petitioners have placed reliance on certain correspondence exchanged between Maharaja of Mysuru and the predecessor of petitioners at Annexures - P, Q, R, S and T in support of their right over the property.
10. The BDA has filed its statement of objections. It has denied the ownership and possession of petition schedule property by petitioners. It has contended that recitals in Annexure-A document did not confer title over the said land but only conferred right of preservation and maintenance of Brindavan as a sole proprietrix and not more than that. It has further contended that letter written by the then Secretary to the Maharaja was only an 9 internal correspondence between the palace authorities and cannot confer any right over one acre of land on anybody.
11. In paragraph 3 of the statement of objections, BDA has specifically contended that the land in question was given free of cost to the erstwhile City Improvement Trust Board (fort short 'CITB') the predecessor of BDA for the purpose of forming park around the Brindavan by the then Maharaja of Mysuru during May 1958. The said grant, according to the BDA, was made at the time when Maharaja sold the land situated in upper and lower orchards of Rajmahal Vilas to the CITB for formation of Rajmahal Vilas Extension layout during 1958. The BDA asserts that CITB purchased 69 acres 38 guntas of land in Sy.No.2 of Rajamahal Kasaba Hobli in upper palace orchards and 17 acres 38 guntas of land in Sy.No.2 of Rajmahal in lower palace orchard; the CITB paid a total consideration of Rs.11,07,383/- to the Maharaja of Mysuru and it was put in possession of the lands; at the time of sale one of the conditions imposed by the Secretary 10 to Mysuru Palace was that the area around the existing Brindavan measuring about an acre should be reserved; eventually the said land was granted to CITB free of cost to be maintained as park. In this regard, the BDA has placed reliance on Annexures-R1 to R5 being copies of communications and the sketch showing sale of upper orchards area. BDA has thus asserted that ownership of the property was vested with it for the purpose of forming park and to maintain the same. It has urged that katha certificate and tax paid receipts produced by them did not evidence title and possession of petitioners. The BDA contends that by mistake and oversight, request made by petitioners was processed by the planning authority and a public notice had been issued as per Annexure-J; after noticing the mistake and after ascertaining the real facts the BDA had come up with true facts.
12. Respondent No.5 - Sri N.G.Raju has filed statement of objections to the writ petition. He has contended that petitioners have already filed O.S.No.25580/2013 seeking relief of declaration that Annexure-A document was a 11 fabricated document inasmuch as, as back as on 10.01.1925 actual physical possession of the land had already been handed over to one Smt. Narasammanni and her husband Sri Siddaraju. 5th respondent claims that his great grand father - Narasimharaju S/o. Ramaraju purchased the land bearing Sy.No.31 measuring 2 acres in Malenahalli, Bengaluru, from one Patel Pillappa under a document dated 15.05.1885. Subsequently, the said land merged with the lands of Bengaluru palace while putting up the compound wall by palace. It was in view of the said circumstances, at the request of son of late Narasimharaju by name Siddaraju, His Highness Maharaja Nalvadi Krishnaraj Wadeyar gave alternate property under document dated 13.01.1905 in place of property which was included while putting up compound wall by Bengaluru Palace. Hence, said Siddaraju became the possessor and owner of property. Subsequently, during 1925 in recognition of service of Sri Siddaraju and Smt. Narasammanni, Maharaja of Mysuru delivered the possession of palace property in the Bengaluru Palace 12 Orchards as per possession deed dated 10.01.1925 and it is this property which is the subject matter of writ petition. After the death of Sri Siddaraju and Smt. Narasammanni leaving behind their only son Narasimharaju, Narasimharaju acquired absolute right over the property. The said Narasimharaju, is none other than the father of respondent No.5 - N.G.Raju. It is further urged that mother of respondent No.5 - Smt. Revamma gifted the property in question in favour of respondent No.5 as per gift deed dated 23.02.2012. This is how the 5th respondent claims right over the property. Respondent No.5 has denied the assertions of the BDA that the property belonged to the BDA.
13. I have heard the learned counsel for all parties. Sri L.Govindraj, learned counsel for petitioner has reiterated petition averments and has specifically contended that as per the genealogy of the house of Wadeyars, Smt. Rajkumari Leelavathideviavaru was the daughter of Smt.Jayalakshammaniavaru and Sri M. Kantharaj Urs. Smt.Rajkumari Leelavathideviavaru left 13 behind her son by name Sardar K.B.Ramachandra Raj Urs. Petitioners are his children. Therefore, by inheritance the property devolved on petitioners and it was absolutely wrong on the part of the BDA to come up with baseless allegation that petitioners had no right over the property. He points out that katha has been entered in the names of petitioners and possession of property is with petitioners. He invites the attention of the Court to the fact that petitioners had dealt with the property by entering into joint development agreement with respondent No.4 as back as on 15.12.2005. It is also pointed out that BDA issued master plan delineating property as reserved for public and semi public use. Petitioners filed objections and after considering the same, BDA issued a public notice as per Annexure-J. When the entire formalities regarding securing change of land use and permission to develop the property had been completed, BDA came up with the impugned endorsement Annexure-L setting up its own title over the property. In this regard, Sri L.Govindraj, learned counsel has been highly critical of the stand taken by the 14 BDA. He has emphasized that without any document in its favour, BDA claims to have become owner and that having processed the request made by petitioners it has made a turn around to ridiculously claim title over property. He refers to the zoning regulations pertaining to public and semi public use and takes the Court through the effect of Section 69 of the Act to urge that the proposed designation of the BDA had lapsed.
14. Sri D.R.Ravishankar, learned counsel appearing for petitioner No.2 has contended that in the absence of the BDA producing any material as to how it acquired title, it cannot be heard to say that petitioner should go to the Civil Court.
15. Sri Suraj Govind Raj, learned counsel appearing for 4th respondent has supported the case of petitioner. He has particularly highlighted the fact that BDA has woken up only in 2014 to lay its claim of ownership over the property.
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16. Sri D.N.Nanjunda Reddy, learned Senior counsel appearing for the BDA invites the attention of the Court to the correspondence exchanged between the CITB and Maharaja produced at Annexure-R1 along with statement of objections filed by the BDA to contend that area around the existing Brindavan measuring 1 acre had to be reserved. He refers to Annexure-R2 to contend that 1 acre of land in Upper Orchard had been given free of cost for forming park around the Brindavan. He also contends that Annexure-A cannot be termed as grant because in the absence of transfer of property in accordance with the Transfer of Property Act, Maharaja had no right to make a grant. Learned Senior counsel in sum and substance submits that though the BDA cannot claim title over the property, it has possessory right and therefore, in view of continued possession and the need to maintain the area as park, the BDA had right to maintain the area as park. It is urged by him that this Court cannot decide the title of petitioners and therefore, petitioners have to go to the Civil 16 Court, particularly, because they have already filed a suit in O.S.No.25580/2013 against respondent No.5.
17. Learned counsel for respondent No.5 submits that in the absence of any registered sale deed in favour of present petitioners, no title to the property could be claimed by them. He reiterates the stand taken in the statement of objections filed by him.
18. Upon hearing the learned counsel for all parties, questions that fall for consideration by this Court are:
Whether action of the BDA in rejecting the request made for change of land use in respect of site bearing No.17 situated at 16th Cross, Sadashivanagar, Bengaluru, from category of public and semi public use earmarked in the master plan to that of residential use on the ground that property was owned by BDA, is sustainable in law?
Whether the petitioners are entitled for a direction as sought by them for change of land use?17
19. It is not in dispute that land belonged to the erstwhile Maharaja of Mysuru. Indeed, as per the list of immovable properties, securities and cash balance held by his Highness Maharaja of Mysuru as private property as on 26.01.1950 notified by the Union Government which is part of the documents produced along with the writ petition, lower orchard measuring about 20 acres with the orchard office and store rooms along with Brindavan was one of the private properties of Maharaja. Indeed, BDA also does not dispute the fact that property in question belonged to erstwhile Maharaja of Mysuru. Petitioners are descendents of Maharaja of Mysuru. This is evident from the genealogy produced. As per the said genealogy, Smt.Rajkumari Leelavathideviavaru was the daughter of Jayalakshammaniavaru and the said Jayalakshammaniavaru was the daughter of His Highness Chamaraja Wadeyar. Sri Sardar K.B.Ramachandra Raj being the son of Smt Rajkumari Leelavathideviavaru was her only legal heir and it is under Sri Sardar K.B.Ramachandra Raj that all these petitioners including 18 respondent No.3 are claiming title over the property. There is no other claim by any other branch of Maharaja of Mysuru.
20. Therefore, it is a far fetched argument on the part of BDA that because the BDA had denied the title of petitioners, they had to approach the Civil Court to establish their rights.
21. What is important to notice here is on what basis the BDA has set up its own right over the property to non-suit the petitioners. If there is any semblance of right, title and interest over the property and its possession by any third party including the BDA, then question may arise regarding relegating the parties to the civil suit. Nature of right claimed by the BDA is based on Annexures-R1 and R2, alleged correspondence said to have been made between erstwhile CITB, predecessor of BDA and the Maharaja which are produced at Annexures-R1 and R2 along with its statement of objections. Annexure-R1 is written by an officer by name H.N.Pallegar, I.A.S on behalf 19 of Mysuru Palace on 25.09.1957. It states that Upper Orchard would be sold to the CITB, at the value of Rs.16,000/- per acre; "the area around the existing Brindavan measuring about an acre in extent will be reserved". Said clauses of the said letter are not relevant for our purpose. On the strength of the statement made in this letter that the area around the existing Brindavan measuring about an acre in extent will be reserved, learned Senior Counsel Sri D.N.Nanjunda Reddy contends that the same was reserved to be maintained as park by the BDA. It is evident from Annexure-R2 another letter dated 4/5-07-1958 wherein reference is made to 1 acre of palace land given free of cost for forming a park around the Brindavan. Letters produced at Annexures - R1 and R2 cannot be treated as documents vesting any right, title or interest in favour of the BDA over one of the lands by divesting right, title and interest of the erstwhile Maharaja of Mysuru over the property. Therefore, assertion made by the BDA that it had become the owner of the said property cannot be accepted.
20
22. On the other hand, fact that petitioners being the heirs of erstwhile Maharaja have exercised their right over the property is evident from the fact that their names have been entered in the katha of the BBMP in respect of the land. This is clear from Annexure-C. They have paid the tax in respect of this land as is clear from Annexure-C1. They have applied to various authorities and have secured no objection certificates from BESCOM, Airport Authority etc., for the purpose of developing the land with the help of developer - 4th respondent. This is evident from the communication from Bangalore Electricity Supply Company Limited dated 05.09.2011, Airports Authority of India dated 16.06.2011, Bharat Sanchar Nigam Limited dated 09.03.2011 produced along with the writ petition at Annexures - K, K1 and K2 respectively.
23. In the revised comprehensive development plan dated 05.01.1995 produced at Annexure-F, land in question was shown as reserved for public and semi public use. Petitioners filed objections to the same as per 21 Annexure-G contending that they were the katedars of land and had paid betterment charges for the property and hence, the categorization of land be changed showing it as residential, particularly, because property was situated in the middle of residential area. This was followed by a representation dated 18.10.2007 submitted by 1st petitioner to consider their objections for change of land use as mentioned in the master plan for residential purpose. Objections filed on 08.09.2005 and the representation submitted on 18.10.2007 are produced at Annexures - G and H respectively.
24. Acting on the basis of objection and the representation filed, the BDA issued a public notice dated 02.07.2008 in the newspapers as is evident from Annexure-J calling for objections, if any for grant of change of land use. It is thereafter on 27.01.2014 BDA issued the impugned endorsement addressed to the Government asserting its right over the property. Copy of which is marked to the developers of petitioners. 22
25. If indeed the land was granted by the Maharaja to the BDA to maintain it as park, the BDA ought to have converted it into park and maintained the same as such. In which event the same would have been reflected in the records of the BBMP and as also in the records of the BDA. On the contrary, records of the BBMP disclose the names of petitioners as katedars. Tax has been collected by them. Even in the comprehensive development plan prepared by the Planning Authority viz., the BDA, the land is not delineated as park but is shown as one meant for public and semi public purpose. This itself belies the assertion made by the BDA that the land was transferred to the BDA by the Maharaja to maintain it as park. In such circumstances, BDA has no right to contend that it had become the owner of the property in question or that the property was entrusted to it for the purpose of maintaining it as a park around Brindavan.
26. The Brindavan and the surrounding area measuring about 1 acre continued to be the property belonging to Maharaja because while other properties forming part of 23 the lower and upper palace orchards were sold by the Maharaja in favour of CITB this portion was not sold. Petitioners claim title to the property not only on the basis of grant made by the Maharaja of Mysuru vide Annexure-A grant dated 30.05.1958 but also as legal heirs who succeeded to the property from its predecessor who were the family members of Maharaja. It is not open for the BDA to contend that petitioners should to go the Civil Court to establish their rights merely because of the assertions made by it setting up its own title and interest over the property.
27. Insofar as 5th respondent is concerned, he is trying to trace his title over the property to 1925 document which is neither registered nor has been acted upon. He has come up with an unfounded and unsubstantiated statement of fact regarding the title of his predecessor in title. There is absolutely no legally acceptable material to show any semblance of right of 5th respondent over the property in question. If indeed the property had been transferred to the predecessor or the ancestors of 5th respondent, the 24 same would have been reflected in the municipal records and eventually in the records of BBMP. Therefore, 5th respondent cannot be said to have any interest in the property and cannot be permitted to resist the relief sought by petitioners.
28. This takes the Court to the next question as to whether there was any justification for the BDA and the State Government to deny the request made by petitioners and the 5th respondent for deletion of land use stipulated in the master plan delineating the property as meant for public and semi public use.
29. As rightly contended by learned counsel for petitioners, as per Section 69 of the Town and Country Planning Act lands designated for certain purpose in the master plan may be acquired by the planning authority by agreement or under the Land Acquisition Act. If lands so specified are not acquired by agreement within five years from the date the master plan was published in the gazette or if proceedings under the Land Acquisition Act are not 25 commenced, then, such designation shall be deemed to have been lapsed.
30. The land in question was reserved under the comprehensive development plan approved by the Government of Karnataka vide G.O.No.HUD-139 MNJ 94 dated 05.01.1995 for the purpose of public and semi public use. The land was not acquired within the specified period of 5 years from the date of publication of comprehensive development plan. Despite the owner making application for permission to utilise the land for residential use, though BDA initiated action, it did not pass any order nor the State Government took any action. On the other hand BDA informed the State Government setting up its own right over the property thereby dissuading the State Government from taking any action for change of designation of the land in the master plan. Therefore, upon lapse of 5 years from the date the master plan was published, the designation shall be deemed to have been lapsed. Hence, by operation of Section 69(2) of the Act designation of the land in question has stood 26 lapsed on failure of respondents 1 and 2 in either acquiring the land through consent or by resorting to acquisition as per the provisions of the Land Acquisition Act.
31. It is also undeniable that the land in question is surrounded by residential layout. Land owner has sought permission to use the land for residential use. Petitioners have obtained no objection from various authorities. Therefore, by virtue of the deeming provision under Section 69(2) of the Act, the land shall be available for being used for residential purpose. In this regard, learned counsel for petitioner is right and justified in placing reliance on the Division Bench judgment of this Court in the case of BELGAUM URBAN DEVELOPMENT VS. AMITA NITIN SHIRGURKAR in W.A.No.30894/2012 disposed of on 19.09.2013. Learned counsel for petitioner Sri D.R.Ravishankar is also right and justified in placing reliance on the judgment of the Apex Court in the case of RAJU S. JEETHMALANI AND OTHERS VS. STATE OF MAHARASHTRA AND OTHERS - (2005) 11 SCC 222 to 27 contend that Government cannot deprive a person of the use of his land by him, in order to provide amenities to the public without acquiring the same and paying compensation to him. The planning authority cannot delineate the land belonging to a private person as meant for public use or garden or park without acquiring the same and paying compensation. Indeed, this is the substance of the observations made in the said judgment relied upon by Sri D.R.Ravishankar, learned counsel. In the facts of the said case, controversy arose in the context of development plan prepared for Pune Municipal Corporation under the erstwhile provisions of the Bombay Town Planning Act, 1954. In the master plan published by the Pune Municipal Corporation, certain plots belonging to private individuals were earmarked for the purpose of park and garden. Those plots could not be acquired by the Government of Maharashtra and therefore, they were eventually dereserved by issuing a notification. This was challenged by way of public interest litigation contending that once the land was earmarked for a particular 28 purpose, the same cannot be dereserved to defeat the public purpose. In that context, the Apex Court has laid down that property rights of private individuals cannot be taken away without paying them compensation.
32. In the light of the above and in the wake of the provisions contained in Section 69(2) of the Act, it is clear that designation of the land in question in the master plan showing it as meant for public and semi public use has stood lapsed by virtue of the deeming provision as the land has not been acquired within the period prescribed.
33. Hence, this writ petition is allowed. Impugned communication Annexure-L is set aside.
Sd/-
JUDGE VP