1988 Supreme(Bom) 229

IN THE HIGH COURT OF BOMBAY
C. Mookerjee, C.J. S.P. Bharucha, J.
Industrial Development Investment Co. Pvt. Ltd. another .... Appellants.
Versus
State of Maharashtra others..... Respondents.
Appeal No. 120 of 1988 (O.S.), decided on 14-7-1988.
Advocates appeared :
D.R. Dhanuka, F.E. Devitre, S.U. Kamdar i/ by Purnanand Co., for appellants.
S.M. Shah, for respondent Nos 1, 2 4.
R.L. Dalal with Miss Rehman, for respondent No. 3.
J.D. Dwarkadas with D.V. Merchant i/ by Kanga Co., for respondent No. 5.

Headnote:Sections 6 and 11 - Constitution of India, Article 226 - Delay and laches in writ - Acquisition of laud challenged on ground of a public purpose ceasing to exist as declared under Section 6 filed 4 years, thereafter - Notice or intimation not served on petitioners - Delay not sufficient ground for dismissal of writ.

       The Writ petition was not liable to fail on the ground of delay. There was nothing on record to indicate that after the Appellants had filed their claims pursuant to the notice under Section 9 of the Land Acquisition Act served upon them in the year, 1973, any intimation or notice was actually served by the Respondents upon the Appellants bringing to their knowledge that there had been modification of the development plain. Secondly, the award proceedings were allowed to be kept pending from the year 1973 till 24th February, 1983. Even assuming that the Respondents are right in imputing knowledge to the Appellants of the Gazette notification published on 9th April, 1979, there is nothing to show that the Respondents had manifested any intention to further proceed with the land acquisition proceedings pursuant to the declaration under Section 6 dated 6th September, 1972 in spite of alteration of the purpose specified in the said declaration under Section 6. In the event the Respondents had at any earlier point of time conveyed to the Appellants their intention to proceed with the land acquisition proceedings in spite of the change in the purpose of acquisition, the Appellants could have approached this Court earlier than they did. Therefore, it cannot be held that there was undue delay in filing the Writ Petition or that the cause of action occurred in the year, 1979.

       In the instant case, the Court in deciding the question whether the Writ petition was a state one may not proceed on the basis of the imputed knowledge but ought to consider whether the Appellants were aware of the true fact stand secondly whether there had been any lack of diligence on their part. The Court may also legitimately take into consideration whether by reason of lapse of time any equity that had arisen in favour either of the Respondents or third parties ought not to be disturbed. In the instant case, by reason of the lapse of time between the year, 1979 and the date of filing of the Writ Petition, no vested right had accrued in favour either of the Respondents or of third parties. The Respondents are bound to act in accordance with law and by merely pleading delay they cannot act without jurisdiction and acquire the plot for a purpose not specified in the declaration under Section 6 of the Land Acquisition Act. The award was made in favour of the parties who are all Respondents before us. The State itself which has acted illegally and without jurisdiction cannot plead that it should be allowed to retain the sum awarded in its favour by the Land Acquisition Officer. The 5th Respondent who is described as the owner of the land has conveyed to us that it would submit to the order of the Court.

       On the ground of delay the Appellants could not be deprived of the relief to which they were otherwise entitled.

       Sections 6, 11 and 16.

       See Maharashtra Regional and Town Planning Act, 1966, Section 126 (2), (4).

       Section 126 (2), (4); Land Acquisition Act, Sections 6, 11, 16-Reservation of land for particular purpose-Purpose must continue to subsist until land proposed to be acquired-Otherwise acquisition be without jurisdiction.

       On 9th April, 1979 the Government of Maharashtra had sanctioned the personal to modify the development plan for Bandra - Kurla Complex, inter alia, by discontinuing the reservation made in the original development plan in respect of Survey Plot No. 503 and by shifting the location of the purification plant to Block-A. Even if at the time of the making of the declaration under Section 6 there was no lock of authority to proceed with the acquisition of the plot, as soon as the State Government bad approved the proposal to modify the development plan, the purpose for which the Survey plot no. 503 had been reserved and specified in the declaration under Section 6 of the Land Acquisition Act ceased to subsist. In other words, the proposal for extension of the Sewerage Plant to Survey Plot No. 503 became non-existent. In the result, all subsequent proceedings including the proceedings for making of the award under Section 11 of the Land Acquisition Act and for taking possession of the land in question became invalid. The Land Acquisition Officer had further jurisdiction to make his award and to take possession in terms of Section 16 of the Land Acquisition Act. Only in the event the declaration under Section 6 of the Land Acquisition Act continued to be valid and operative, he had authority to perform these acts. The precondition for making an award or for taking possession of the land in question was the continued existence of a valid declaration under Section 6 of the Act. We cannot also give any countenance to the contention that the infirmity in question merely made the further land acquisition proceedings irregular and void able. For the reasons already mentioned, the declaration under Section 6 of the Land Acquisition Act having been non est the authority of the Land Acquisition Officer to continue the proceedings no longer survived. It was a question of not mere exercise of power in an irregular manner or mere error in profess. By reason of the declaration under Section 6 of the Land Acquisition Act losing its legal force, the jurisdiction to proceed with the acquisition ceased and all further proceedings including making of the award and taking of possession would be void and without jurisdiction. The Act subsequent to the disappearance of the purpose specified in the declaration under Section 6 was ultra vires or beyond the jurisdiction and, therefore, invalid and not merely void able.