Full Judgment Text
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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.