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PETITIONER: MUNICIPAL CORPORATION OF GREATER BOMBAY

       Vs.

RESPONDENT: THE INDUSTRIAL DEVELOPMENT & INVESTMENT CO. PVT. LTD. & ORS.

DATE OF JUDGMENT:       06/09/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MAJMUDAR S.B. (J)

CITATION:  JT 1996 (8)    16

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. MAJMUDAR, J.      I  have  gone  through  the  judgment  prepared  by  my esteemed learned  Brother   K. Ramaswamy,  J. I respectfully agree with  the conclusion  to the  effect that  respondents nos. 1  and 2  had missed   the  bus by adopting an indolent attitude   in   not challenging  the acquisition proceedings promptly. Therefore,  the result is inevitable that the writ petition is  liable to  be dismissed  on the ground of gross delay and laches. However, I  may mention at this stage that observations made by my  learned brother  K. Ramaswamy, J., In connection with utilisation of  land acquired under the Maharashtra Regional Town Planning  Act (hereinafter referred to as the ’M.R.T.P. Act’) for  one public  purpose to be used for another public purpose, are  with great  respect not  found  by  me  to  be apposite. I, therefore, record my reasons for the said view.      Even  though   the  proposal  under      Section 126(1)  is for  acquisition      of  land  for  a  specified  public      purpose, if  the planning authority      wants   to    acquire   the    land      subsequently for  any other  public      purpose earmarked  in the  modified      scheme  as   has  happened  in  the      present  case   that  is   if   the      appellant   Corporation  which  had      initially proposed  to acquire  the      land  for   extension  of  sewerage      treatment       plant        wanted      subsequently  to  acquire the  same      land   for  its staff quarters then      such a purpose must be specifically      indicated  in   the  plan   meaning      thereby that the land must be shown      to  be   reserved  for   the  staff

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    quarters  of  the  Corporation  and      then the Special Planning Authority      which had  become   the appropriate      planning        authority,    i.e.,      B.M.R.D.A. would  be   required  to      issue  a   fresh  proposal    under      Section 126(1)   read  with Section      40(3)(e)   and Section  116 of  the      M.R.T.P. Act  and follow  the gamut      thereafter.   So long  as  that was      not   done the     earlier proposal      under     Section  126(1)  and  the      consequential   notification by the      State  Government    under  Section      126(2)  which   had  lost     their      efficacy could  not be revitalized.      I also   do not  subscribe   to the      general  observation that a sitting      tenant of  the land  which comes to      be  subjected   to      acquisition      proceedings under   Sections  4 and      6   of   the Land Acquisition  Act,      in   no case can challenge the said      acquisition     proceedings.     In      appropriate   cases       such    a      challenge can  be levelled   by the      concerned tenant  having sufficient      subsisting interest in the land. In      my view,  therefore,   on    merits      the learned   Single Judge as  well      as the Division Bench  had  rightly      held     that    respondent’s  writ      petition   had    good   case    on      merits.      However,   as   the  learned Single      Judge dismissed  the writ  petition      on the  ground    of     delay  and      laches and  his view  was upset  by      the Division  Bench which according      to   me had  not taken correct view      on   this   score as  held   by  my      learned brother  K. Ramaswamy,  j.,      and with  which view I respectfully      concur, I deem it fit  to record my      additional reasons  for non-suiting      the respondent-petitioners  on that      score.      It is   trite  to  observe  that  before  the  planning proposals  for   Bandra-Kurla  Complex  were  finalised  and published by  the State of Maharashtra on 3rd May  1979, the requisite   statutory procedure  of Section   40 sub-section 3(d), was necessarily followed by the  Special section 3(d), was  necessarily   followed  by   the  Special      Planning Authority and  that happened  between 7th March 1977 and 3rd May 1979.  To recapitulate  as per  Section 40   sub-section 3(d)  of   the  M.R.T.P.   Act  before  submitting  planning proposals to the State Govt., the Special Planning Authority has to  carry out survey of the land and to prepare existing land-use map  of the  area, and  to prepare  and publish the draft proposal to the lands within its jurisdiction together with a  notice in  the Official Gazette and local newspapers in  such  manner  as  the  Special  Planning  Authority  may determine. It  has also to invite objections and suggestions from the  public within  the period of not more than 30 days from the  date of notice in the Official Gazette. Thus these

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proposals are  to be  published not  only  in  the  Official Gazette but  in local  newspapers also.  It  is,  therefore, obvious that  the proposals for changing the reservations of the concerned  lands in  the area and shifting of the sewage plant from  Block ’H’  to Block ’A’ in the planning proposal for Bandra-Kurla  Complex  were  published  by  the  Special Planning Authority  prior to  3rd May  1979  and  after  7th March, 1977  when that  authority was constituted. When such proposals got  published in  local newspapers it is too much for the  respondent-writ petitioners  to  submit  that  they never knew about these proposals and they came to know about these proposals only on 26th May 1983 when public notice was issued in  Times of  India regarding  the approval  of these proposals  by   the  State  Govt,  Even  assuming  that  the respondent Nos.1  and 2  might have  not read the Government Gazette at  least   notices issued in local newspapers would not  have   escaped  their   attention  in  1979.  By  1979, therefore, Respondents  nos,1 and  2 must have known or with due diligence  would have knows that there was a proposal to de-reserve  their   land  from   the  earmarked  purpose  of extension  of   sewerage  treatment   plant   of   Municipal Corporation.  They  may  not  object  to  such  a  favorable proposal but  obviously they  should be  inquisite enough to know as  early as  between 1977  and 1979  that the could on their land  was getting  lifted. Therefore,  they would have been put to the enquiry as to what happened to this proposal and what was the final outcome thereof. Instead of bothering anyway about  it, they just slumbered on and supported their claims for  compensation before the Land Acquisition Officer under Section  9 of  the Act,  joined issues thereon in 1979 and onwards  and allowed the award to be rendered as late on 24th February  1983. Not  only that  they also  allowed  the possession to  be taken by the Corporation on 4th March 1983 though of  course it  was symbolic  possession as  they were tenants in  possession. To  add to this indolent conduct and connivance on  the part  of the respondent-writ petitioners, in these  very acquisition proceedings, they filed reference application under  Section 18 of the Land Acquisition Act on 7th April  1983 claiming  additional compensation. Thus upto 7th April  1983 they  had no  objection to  their  land  had already got  de-reserved for  the extension  of  the  sewage plant  from   being  acquired   and  they   concentrated  on compensation only.  It is  their own  case that even on 10th January 1986  there was  a meeting  of the  Bombay Municipal Corporation Works  Committee and in that meeting the members present had  asked the  Dy. Municipal  Corporation  to  make statement on  certain queries  raised by  him and one of the queries was  about absence of proposals to have extension of Sewage Purification  Plant, Dharavi.  This also  shows  that Respondent Nos.  1 and  2 were  fully alive to the fact that there was  no scope for extension of Dharavi Sewage Plant on their land.  Despite all these facts within the knowledge of the respondent  nos. 1 & 2 they set on the fence and allowed the acquisition  proceedings to  continue  and  reach  their terminus and  even after award was passed and possession was taken by the Municipal Corporation, they staked their claims only for additional compensation. It is only thereafter that they filed  writ petition  on 14th July 1983. Such a belated writ  petition,  therefore,  was  rightly  rejected  by  the learned single  Judge on  the  ground  of  gross  delay  and laches. The  respondent-writ petitioners can be said to have waived their  objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent  conduct. The  division bench of the High Court had taken  the view that because of their inaction no vested

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rights  of  third  parties  are  created.  That  finding  is obviously incorrect  for the  simple reason  that because of the indolent  conduct  of  the  writ  petitioners  land  got acquired, award  was passed, compensation was handed over to various  claimants   including   the   landlord.   Reference applications came  to be  filed for  larger compensation  by claimants  including   writ  petitioners   themselves.   The acquired  land  got  vested  in  the  State  Govt,  and  the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the  award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State Government for being handed over to the Corporation.  All these  events could not be wished away by observing  that no  third party  rights were  created  by them. The  writ petition  came to  be filed  after all these events had  taken place.  Such a  writ petition  was clearly still borne  due to  gross delay  and laches.  I, therefore, respectfully agree  with the  conclusion to which my learned brother Ramaswamy,  J. has  reached that  on the  ground  of delay and  laches  the  writ  petition  is  required  to  be dismissed and the appeal has to be allowed on that ground.