JUDGMENT M. Karpaga Vinayagam, C.J. 1. M/s DEMCO Pvt. Ltd., the owner of the land in question applied for a Land Use Certificate from Ranchi Regional Development Authority (hereinafter referred to as "RRDA" for short). After considering the same, the RRDA issued a letter dated 29.11.2003 informing M/s. DEMCO Pvt. Ltd. that part of the land in question, i.e., R.S. Plot No. 1133 is residential and a part of the same falls in open space in the existing Master Plan of Ranchi Town. 2. Challenging the same, M/s. DEMCO Pvt. Ltd. preferred a writ petition for quashing the letter dated 29.11.2003 and asked for a mandamus to be issued to the authorities to accept the map submitted by the petitioner before the RRDA and to sanction the petitioner FAR (Floor Area Ratio). 3. The said writ petition was allowed by the learned Single Judge. Being aggrieved by the said order dated 07.02.2005, the RRDA filed this Letters Patent Appeal before this Court. The short facts which are required for the disposal of the appeal are as follows: (i) The Plot No. 1133 is covering the area of 4.45 acres. (ii) Out of 4.45 acres, 1.48 acres fell into the share of Kamla Rani Rai. (iii) Smt. Kamla Rani Rai thereupon created a trust in respect of the said property being Srilekha Memorial trust. The trust was created in the year 1973. (iv) The land measuring an area of 1.48 acres was mutated in the name of the said trust. (v) In the year 1972, the Master Plan of Ranchi Town was prepared. According to this master plan, the major portion of R.S. Plot No. 1133 was described as open space. Thereafter the master plan of 1972 has been revised in the year 1983 and again the major portion of plot No. 1133 continued to be an open space. (vi) A proceeding under the Urban Land Ceiling & Regulation Act was started for acquiring the land of Plot No. 1133 in the year 1976. (vii) On 03.08.1989 the proceeding under Urban Land Ceiling & Regulation Act in respect of the entire plot was initiated and the same was dropped under the provisions of Section 19(1) of the Urban Land Ceiling & Regulation Act on the ground of being charitable trust. (vii) On 03.08.1989 the proceeding under Urban Land Ceiling & Regulation Act in respect of the entire plot was initiated and the same was dropped under the provisions of Section 19(1) of the Urban Land Ceiling & Regulation Act on the ground of being charitable trust. (viii) On 24.10.2003, M/s. DEMCO IM; Ltd. and others, the writ petitioners purchased 92 katha of land including the premises of Golkothi out of 1.48 acres of land in Plot No. 1133 from Srilekha Memorial Trust including the building premises. (ix) On 03.11.2003, M/s. DEMCO Pvt. Ltd. applied for a Land Use Certificate from the RRDA and demanded a Master Plan with the intention to develop the land of Plot No. 1123. (x) By the letter dated 29.11.2003, the RRDA informed the writ petitioner that as per the Master Plan, the land in Plot No. 1133 is partly residential and partly open space and partly occupied by the road. (xi) The petitioner, challenging the above letter dated 29.11.2003, preferred a writ petition before this Court, mainly contending that the department cannot say that it is an open space as there is residential building existing over the land since 1935 and as such the building area cannot be changed to the status of land as open space and before such change the predecessor in interest of the writ petitioner were never served with any notice under the provisions of the Act. (xii) The learned Single Judge, accepting the contention of the writ petitioner, allowed the writ petition not only quashing the letter, but also held that the writ petitioner is entitled to develop the building as there is a building which was occupied by a department of the Government from 1935 and therefore, the RRDA authorities cannot refuse to sanction the plan of development of the existing building and the land appertaining thereto. (xiii) RRDA, the respondent in the writ petition, aggrieved by the order of learned Single Judge, rejecting the contention of the RRDA that it was an open space which was declared as open space in the master plan of the year 1972 and revised in the year 1983 by a fresh notification mentioning that major portion of the land is open space and balance portion of the land is residential has filed this appeal. 4. 4. According to the writ petitioner before the Writ Court, the building over the land commonly known as Golkothi was constructed about 50 years back, i.e. some time in the year 1935 and the predecessor in interest of the petitioner let out the said building together with the land to the District Soil Conservation and the fair rent also has been fixed in respect of the building by the authorities concerned and since the building was there over the land the respondent authorities, i.e., RRDA cannot claim that the part of the Plot No. 1133 is residential and part of the plot is open space, thereby rejecting the application for the sanction of Floor Area Ratio. 5. On the other hand, it was contended by the RRDA authorities before the Writ Court that the Master Plan of Ranchi Town was made after complying with the statutory provisions provided under the Bihar Regional Development Authorities Act, 1981 and the said Master Plan was duly approved; in the said master Plan the plot in question has been earmarked as "partly open space, partly residential, partly affected by the road; in view of the fact that no objection was raised by the petitioner or its predecessor in interest earlier at the time of publication, the nature of the land shown in the Master Plan cannot be changed. 6. The learned Single Judge rejected the argument of the RRDA and passed order quashing the letter dated 29.11.2003 and held that the writ petitioner is entitled to develop the building, which is in existence since 1935 and RRDA authorities cannot refuse to approve the plan for development of the existing building. The relevant portion of the order passed by the learned Single Judge is as follows: 7. The main question that falls for consideration is whether the land together with building as shown in all the revenue records can be earmarked as open space in the revised Master Plan prepared in the year 1983. 9. In the case of Atia Mohammadi Begum v. State of U.P. and Ors. , a similar question arose before the Supreme Court. When the Urban Land (Ceiling and Regulation) Act came into force the land was recorded in the revenue record as for the purpose of agriculture. 9. In the case of Atia Mohammadi Begum v. State of U.P. and Ors. , a similar question arose before the Supreme Court. When the Urban Land (Ceiling and Regulation) Act came into force the land was recorded in the revenue record as for the purpose of agriculture. When the Master Plan for Aligarh was made on February 1980 the land in question was shown therein for a purpose other than agriculture. The appellant of the basis of Matter Plan claimed exclusion of the land from the ambit of urban land under Section 2(o) of the said Act. Their Lordships held that in the Master Plan nature of the land cannot be changed. Their Lordships observed that if the land has been specified in the Master Plan existing at the time of commencement of the Act for a purpose other than agriculture, then the land shall not be deemed to be mainly used for the purpose of agriculture by virtue of the Explanation (C) of Section 2 of the Act. Just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit, the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action. 10. Curiously enough, the building known as "Gol Kothi" is existing on plot No. 1133 where the government is running the office of Soil Conservation but in the counter affidavit filed by the respondents, it has been denied about the existence of building in the said plot and that statement is true to the information of the deponent derived from the record. In view of the existence of the building, the respondent authority in the impugned order dated 29.11.2003 tightly reported that the plot in question is earmarked partly for residential and partly for open space. In no circumstances, the building in question together with land appertaining thereto can be declared as open space. In any view of the matter the land and the building cannot be earmarked, as open space, that too without giving personal notice or opportunity of hearing to the land owner. 11. In no circumstances, the building in question together with land appertaining thereto can be declared as open space. In any view of the matter the land and the building cannot be earmarked, as open space, that too without giving personal notice or opportunity of hearing to the land owner. 11. Section 21 of the Bihar Regional Development Authority Act, 1981 specifically provides that before preparing any plan finally and submitting it to the State Government for approval the Authority shall prepare a draft plan and publish it by making a copy thereof available for inspection, and publishing a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice not being earlier than four months from the publication of the notice. Sub-section (2) of Section 21 of the said Act make it obligatory upon the authority to give adequate opportunity to the concerned persons of being heard and after considering the suggestions, objections and representations, if any, modify the draft plan, if necessary, and submit it to the State Government for approval. 12. Except the averments made in the counter affidavit by the respondent- RRDA nothing has been brought on record to show the compliance of the mandatory provisions of the Act and the Rules before the plan was approved by the Government. 13. Considering the aforesaid provisions of the Act and the Rules, I have no doubt in any mind in holding that the petitioner is entitled to develop the building, namely, "Gol Kothi" which is in existence since 1935 and has been occupied by Soil Conservation Department for running its office. 14. For the aforesaid reasons, this writ application is allowed and it is held that the respondent-authority cannot refuse to sanction the plan for development of the existing building and the land appertaining thereto. 7. 14. For the aforesaid reasons, this writ application is allowed and it is held that the respondent-authority cannot refuse to sanction the plan for development of the existing building and the land appertaining thereto. 7. The gist of the discussion and conclusion by the learned Single Judge are as follows: (i) Since the building known as "Golkothi" is existing on Plot No. 1133, where the Government is running the office of Soil Conservation, the building in question together with the land appertaining thereto cannot be declared as open space; (ii) In any view of the matter the land and the building cannot be earmarked as open space that too without issuing personal notice or giving opportunity to the land owner; (iii) Under Section 21 of the Bihar Regional Development Authorities Act, before preparing any plan finally and submitting it to the State Government, the authority shall prepare a draft plan and publish it by making a copy thereof available for inspection, and publishing a notice in such form and the manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice, not being earlier than four months from the publication of the notice. Only after considering the objection, after publication, the draft plan can be submitted to the State Government for approval. (iv) No records were produced by the RRDA to show that those mandatory provisions have been complied with before the plan was approved by the Government. (v) Therefore, the writ petitioner is entitled to develop the building, namely, Golkothi, which is in existence since 1935, which cannot be said to be open space. 8. Assailing the above order of Single Judge dated 07.02.2005, Mr. (v) Therefore, the writ petitioner is entitled to develop the building, namely, Golkothi, which is in existence since 1935, which cannot be said to be open space. 8. Assailing the above order of Single Judge dated 07.02.2005, Mr. V.P. Singh, learned Senior Counsel appearing for the RRDA-appellant would make the following contention: Learned Single Judge has not based his finding on appreciation of correct facts of the case; the findings given by the Honble Single Judge that the building in question together with the land cannot be declared as an open space without giving notice is clearly wrong; the Master Plan of the Ranchi Town was implemented in the year 1972 itself; the same has been revised in the year 1983; in 1972 the Master Plan came into force through notification No. 6972 dated 28.07.1972; the said Master Plan has been revised vide, Notification No. 1095/82 dated 25.10.1983; at present the revised Master Plan of 1983 is in force; though there is one portion of the land is a building, the maximum portion of the land is catchment area of the Gonda Dam which is major water source of the Ranchi Town; the Notification has been published after observing all the mandatory provisions, but even then the predecessor in-interest of the petitioner never objected the said Master Plan which came into force in the year 1972 and revised in the year 1983 through two separate notifications; the judgment relied upon by the learned Single Judge in Atia Mohammadi Begum v. State of U.P. and Ors. would not apply to this case since the said case was decided in respect of the determination of the extent of the and by the competent authority under the Urban Land (Ceiling and Regulation) Act and in the instant case the land in question has been earmarked as open space much before the implementation of the Act of 1976; therefore, there is no question of change in the nature of land after commencement of the Urban Land (Ceiling and Regulation) Act; As a matter of fact the appellant took a specific plea in the counter affidavit in the writ petition that at the time of preparation of Master Plan and as well as while it was revised in the year 1983, which was published through notifications, the predecessor-in-interest of the owner of the land have never raised any objection under Section 21 of the Bihar Regional Development Authorities Act, 1981; those notifications referred to in the counter affidavit filed before the Writ Court have been brought on the record in this appeal through interlocutory application; therefore, learned Single Judge, finding that the mandatory procedures have not been followed, is not correct; in the above circumstances, the order of the learned Single Judge is liable to be set aside. 9. The learned Counsel or the respondent-writ petitioner, in justification of the order of the learned Single Judge would contend that the Master Plan prepared in the year 1972 and 1983 cannot be relied upon now as they have no force, as such they cannot be relied upon. 9. The learned Counsel or the respondent-writ petitioner, in justification of the order of the learned Single Judge would contend that the Master Plan prepared in the year 1972 and 1983 cannot be relied upon now as they have no force, as such they cannot be relied upon. The short submissions made by the counsel for the respondent writ petitioner in reply to the submissions made by the counsel for the appellant is summarized below: The Master Plan prepared in 1983 would automatically lapse after 5 years as per the provisions contained under Section 24; though it has been declared as open space by the Ranchi Regional Development Authority through notifications, there has been no acquisition of the land of the petitioner within six months from the date of publication of the Master Plan; as per Section 29(2) of the Act of 1981, the land would be deemed to be a free land; under Section 81(J) of the Act of 1983, the RRDA has already framed planning standards and Building Bye Laws; as per Clause 18(2) of the above Bye Laws, the restriction of the construction has been imposed only within the 9 meters of the highest water mark of the tank; therefore the writ petitioner can be restricted only up to 9 meters of the highest water mark of tank and not beyond that; admittedly before finalization of the Master Plan in respect of this land, there is no personal service of notice on the predecessor in interest of the petitioner under Rule 67 of the Act of 1981; therefore, Master Plan cannot be relied upon. 10. 10. In reply to the above submission, the counsel for the appellant would make the following submissions: Section 29(2) of the Act will be applicable only when there is a request of the authority for acquisition of the land for public purpose, that will not apply to the present case; the appellant did not intend to acquire the land for any public purpose; their only contention is that in view of the Master Plan, no building can be constructed thereon; there is no restriction by the RRDA for the owner to enjoy the land in accordance with law; in Master Plan, there is specific clause that there should not be any construction out of 250 around Gonda Kanke Dam; this clause of the Master Plan will prevail over the Building Bye Laws; Clause 18(2) of the Building Bye Laws would make a reference about construction of a building near any tank or talab and not in respect of the dam as in the present case; before preparation of Master Plan, notice was published in Ranchi Zila Gazette dated 01.04.1979, which has been produced before this Court in I.A. No. 1535 of 2006. 11. In the light of the rival contentions, let us now discuss the issue, which has arisen in this case. 12. The main question for consideration is "Whether these appellants have any authority or jurisdiction under law to change the nature of the land from the nature mentioned in the Master Plan to any other nature over a portion of which residential building and the open space is situated?" 13. The main challenge made by the writ petitioner-respondent is to the validity of the letter on the ground that the appellants cannot earmark the land into open space under the provisions of the Regional Development Authority Act. 14. According to the appellant, the Master Plan of Ranchi Town prepared in the year 1972 would indicate that the major portion of R.S. Plot No. 1133 was described as open space. Thereafter, Master Plan of 1972 has been revised in the year 1983 and again major portion has been continued to be shown as open space, which is still in force. Both the notifications have been placed before this Court. One is notification No. 6972 dated 28.07.1972 and the another notification which revised the notification of 1972 is Notification No. 1095/82 dated 25.10.1983. 15. Both the notifications have been placed before this Court. One is notification No. 6972 dated 28.07.1972 and the another notification which revised the notification of 1972 is Notification No. 1095/82 dated 25.10.1983. 15. These official documents, though were not produced before the Single Judge, it was specifically pleaded in the counter affidavit that the appropriate notifications were issued and before preparation of Master Plan, they adopted all the procedures and the predecessor-in-interest of the owners of the land in question never objected either in the year 1972 when the first Master Plan was prepared nor made any objection in the year 1983 when the Master Plan of Ranchi Town of the year 1972 was revised. 16. According to the appellants, the said notifications have been published and even after publication, no objection was raised by the predecessor-in- interest. This is not disputed by the respondent here. 17. On the other hand, it is mainly contended by the respondent that the said notifications cannot be said to be in force as they must be deemed to have lapsed after five years. 18. It is specifically contended by the counsel for appellant that by Notification dated 03.02.1979 notice under Section 21(1) of the Act of 1981 was published inviting objection to the Master Plan on 01.04.1981 itself and since there was no objection raised by the persons concerned the Master Plan of Ranchi was approved by the Governor of the State and a notification was issued under Section 24(1) of the Act of 1981 on 25.01.1983 accordingly. 19. The specific plea made by RRDA is that already notification was issued prohibiting any construction of the building up to a distance of 250 feet around the Gonda reservoir as it is reserved as open space. This is stated in their counter in the writ petition. This is as follows: 7. All and up to a distance of 250 feet (Two hundred and fifty feet) all around the Gonda reservoir in Kathar Gonda (Pahar Gonda) shall be reserved for OPEN SPACE use and no building construction shall be permitted within this OPEN SPACE. 20. It is also noticed that the appellants took specific plea in the counter affidavit in the writ application to the effect that Master Plan was notified, but no objection was raised as provided under the Act. The relevant paragraph is para 13 of the counter affidavit, as quoted below: 13. 20. It is also noticed that the appellants took specific plea in the counter affidavit in the writ application to the effect that Master Plan was notified, but no objection was raised as provided under the Act. The relevant paragraph is para 13 of the counter affidavit, as quoted below: 13. It is further submitted by the answering respondent that at the time of preparation of the Master Plan in the year 1983 the predecessor in interest of the land as never raised any objection as provided under Section 21 of BRDA Act.... 21. That in view of Section 28 of the Bihar and Orissa G.C. Act, when an Act or Rule requires any thing to be notified/published, then publication of the same shall be deemed to be duly made unless proved otherwise. 22. In the light of the above provisions, as correctly contended by the counsel for the appellant that after publication of the Master Plan, it would be deemed that it is duly made and validity of the same which was issued in the year 1972 and 1983 cannot be questioned after such a long time in this writ petition. 23. Though it is contended by the counsel for the respondents that the Master Plan remains valid only for five years, it is found that no provision says so. 24. On the other hand, Section 24(2) of the Act, which says that Master Plan remains valid even after expiry of five years till it is reviewed or revised. As a matter of fact it is held by the High Court in 1986 PLJR 1063 that a Master Plan remains valid till the next plan is prepared. 25. As a matter of fact the petitioner never applied for sanction of FAR in his application filed before the Ranchi Regional Development Authority. The petitioner simply applied for Land Use Certificate and copy of the Master Plan but when it was informed through the letter that the land containing the building is open space, it filed a writ petition age inst the letter and during the pendency of the said writ petition, the petitioner chose to file an amendment petition praying one more relief for directing the Ranchi Regional Development Authority to grant sanction. By this prayer, the writ petitioner-the owner of the land virtually wants to change the status of the land by seeking permission for construction of the building. By this prayer, the writ petitioner-the owner of the land virtually wants to change the status of the land by seeking permission for construction of the building. 26. As indicated above, the specific plea taken by the appellants even before the Writ Court is that in the Master Plan there is a clear cut condition through the specific clause that there should not be any construction within 250 feet around the Gonda Kanke Dam. 27. The contention of the counsel for the respondents by referring to Clause 18(2) does not deserve acceptance in view of the fact that the said provision would not apply to the area of the Master Plan in relation to dam as in the present case. 28. As indicated above, the notifications have been published after observing all mandatory provisions, but even then the predecessor in interest of the petitioner-respondent never raised any objection with reference to the master plan, which came into force in the year 1972 and revised in the year 1983. 29. As correctly pointed out by the learned Senior Counsel for the appellant, the judgment relied upon by the learned Single Judge in Atia Mohammadi Begum v. State of U.P. and Ors. would not apply to this case since the said case was decided in respect of the determination of the extent of the land by the competent authority under the Urban Land (Ceiling and Regulation) Act and in the instant case the land in question has been earmarked as open space much before the implementation of the Act of 1976 and, therefore, there is no question of change in the nature of land after commencement of the Urban Land (Ceiling and Regulation) Act. 30. The learned Counsel for the respondent would point out to Section 29(2) of the Act with reference to requirements. The said Section 29(2) of the Act will be applicable only when there is request of the authority for acquisition of the land for public purpose. In this case the authority did not acquire the land for any public purpose, their only contention is that in view of the Master Plan, no building can be constructed thereon and there is no restriction to the owner to enjoy the land in accordance with the law. 31. In this case the authority did not acquire the land for any public purpose, their only contention is that in view of the Master Plan, no building can be constructed thereon and there is no restriction to the owner to enjoy the land in accordance with the law. 31. As indicated above, in the Master Plan, there is specific clause that there should not be any construction within 250 around Gonda Kanke Dam. This clause of the Master Plan will prevail over the Building Byelaws. Though the counsel for the respondents makes a reference about Clause 18(2) of the Building Bye Laws, it will apply only with reference to the construction of building near any tank or talab and not in respect of the dam as in the present case. 32. In view of the above discussion, we are of the opinion that the finding given by the learned Single Judge that the mandatory procedures have not been followed while issuing notification and revised notification is not based upon the correct facts and, as such, the order impugned, passed by the learned Single Judge, is liable to be set aside and it is accordingly set aside. This appeal is, thus, allowed. There is no order as to costs. Amareshwar Sahay, J. 33. I agree.