Supreme Court of India
MUNICIPAL CORPORATION OF GREATER BOMBAYversusTHE INDUSTRIAL DEVELOPMENT AND INVESTMENT CO. PVT. LTD AND ORS.
- Citation
- 1996 INSC 1002
- Decided
- 6 September 1996
- Disposal
- Case Partly allowed
- Bench
- K RAMASWAMY
Holding
A land acquisition under Section 126 of the MRTP Act becomes incompetent if the earmarked public purpose ceases before the award, and any challenge must be made before the acquisition is vested; however, due to the petitioners' gross delay and the completion of the award, the writ petition was dismissed.
Summary
The Municipal Corporation of Greater Bombay acquired lease‑hold land of the respondents under Section 126 of the Maharashtra Regional and Town Planning (MRTP) Act, relying on a 1972 notification that the land was earmarked for extending a sewage purification plant. Before the acquisition proceedings were completed, the land was de‑reserved in a new development plan and re‑designated for residential‑commercial use, raising the question of whether the acquisition remained valid. The respondents filed a writ petition challenging the acquisition, but the petition was delayed for several years and was filed after the award and possession had been taken. The Supreme Court held that a change in the earmarked public purpose defeats the competence of a Section 126 acquisition and must be challenged before the award becomes final; however, because the petitioners delayed and the acquisition was already vested in the State, the writ petition was barred by laches and gross delay. Consequently, the Court allowed the appeal and dismissed the writ petition, restoring the earlier order of the Single Judge.
Issues considered
- The validity of a land acquisition under Section 126 of the MRTP Act when the public purpose for which the land was earmarked ceases to exist before the award.
- Whether a writ petition challenging such acquisition can be entertained after the award and possession have been completed, considering principles of delay and laches.
- Whether a sitting tenant can challenge the acquisition when the landlord has accepted the award and compensation.
- Whether a change of public purpose after acquisition invalidates the acquisition and requires a fresh notification under the MRTP Act.
Legislation cited
- Bombay Municipal Corporation Acts. 91
- Constitution of Indias. Article 226
- Land Acquisition Act, 1894s. 10, s. 11, s. 12, s. 16, s. 17, s. 18, s. 31, s. 4, s. 45, s. 6, s. 9
- Maharashtra Regional and Town Planning Act, 1966s. 115, s. 116, s. 125, s. 126, s. 128, s. 40(3)(c), s. 40(3)(e)
Subjects
land acquisitionpublic purposeMRTP Actdelaylachesjudicial reviewArticle 226change of land usetenant rights
Judgment
1
MUNICIPAL CORPORATION OF GREATER BOMBAY A
v.
THE INDUSTRIAL DEVELOPMENT AND INVESTMENT
CO. PVT. LTD AND ORS.
SEPTEMBER 6, 1996 B
[K. RAMASWAMY AND S.B. MAJMUDAR, JJ.]
Land Acquisition :
Maharashtra Regional and Town Planning Act, 1966: Section 125, 126 C
and 128.
Public purpose-Acquisition of land--Change in purpose of land
user-Effect of-Held : acquisition must have direct connection with public
purpose for which land was reserved or eannarked-/f public purpose ceased D
to exist, land got dereserved and acquisition under under S.126 became
incompetent-{n such an event fresh notification under S.126 was neces-
sary-/nterested person should be vigilant and watchful to seek judicial review
under Article 226 before acquisition became final and land vested in State
free from all encumbrances-Once proceedings were complete such challenge E
could not be entertained-Per Ramaswamy, J: However, land acquired for a
public purpose may be used for another public purpose-I'er Majmudar, J :
cha~ge of public purpose of land user must be specifically shown in plan and
then a fresh proposal under S.126(1) r/w. S. 40(3)(c) should be issued-Bom-
bay Metropolitan Region Development Authority Act, 1974.
F
Public purpose-Acquisition of /and-Subsequent change in purpose of
land user--lnordinate delay in challenge under Art. 226-Notification issued
under S.126 of Maharashtra Regional and Town Planning Act r/w. S.6 of
Land Acquisition Act reserving land for public purpose of extension of
Sewerage Purification Plant-But before acquisition proceedings culminated G
in award, said land got dereserved and was to be utilised under new plan for
residential-cum-commercial purposes with no special reservation for
Municipal Corporation-Thus public purpose envisaged in original notifica-
tion got eclipsed-Held : in such an event fresh notification would be neces-
. sary-/nterested person must be vigilant and watchful to impugn under Article
226 the original notification before completion of acquisition proceedings. H
551
552 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A Public purpose-Acquisition of land-Scheme of-Held : scheme was
a comp/et~ code under Maharashtra Regi,onal and Town Planning Act-lt
was distinct and independent from that under Land Acquisition Act-S.
126(1) was a substitute for S.4 of Land Acquisition Act.
Land Acquisition Act, 1894 : Sections 4 and 6.
B
Public purpose-Acquisition of land-Public purpose ceased to
exist-Held : Per Ramaswamy, J : land acquired may be used for another
public purpose.
Land Acquisition-Landlord accepted award and received compensa-
C tion-Challenge of acquisition by sitting tenant-Held : per Ramaswamy,
!-Tenant could not challenge notification and declaration--Per Majmudar,
J : in appropriate cases such challenge could be levelled by concerned tenant
having subsisting interest in land.
Constitution of India, 1950 : Article 226.
D
Public purpose : acquisition of land-Change in land user-Challenge
of-Delay and !aches-Acquisition proceedings completed, award passed and
land vested in State free from all encumbrances-field : Proceedings became
final an4 not open to challenge on ground of violation of statutory require-
E ments such as non-existence of public purpose-Aggrieved person must ap-
proach Court before completion of proceedinw-ft was not the function of
Land Acquisition Officer to see if notified public purpose existed.
Writ petitiort--Maintainability of-Delay and /aches-Acquisition of
land-Notification fo~cquisition proceedings completed and award
F passed-Thereafter, writ petition filed challengi,ng acquisition-Held : High
Court should be loathe to quash notification.
The State Governme111t issued a notification under Section 126(2) of
the Mahai;ashtra Regional and Town Planning Act, 1966 read with Section ·
G 6 of the Land Acquiring Act, 1894 for acquiring lease-hold land of respon·
a
dents for public purpose for extension of Water Sewerage Purification
Plant of the appellant-Corporation as ear-marked in the then Operative
' Development Plan. However, before acquisition proceedings
Sanctioned
qua that the land could culminate into the award, the said land got
de-reserved for that specified public purpose. With the coming into force
H of the Bombay Metropolitan Region Development Authority Act, 1974 the
MUNI.CORPN. OF GREAIBR BOMBAYv. JNDL. DEV. AND INVT. CO. PVT. LID.553
said land was ear-marked for residential-cum-commercial purposes, A
under the new development plan, without any special reservation for the
appellant-Corporation.
In the meanwhile the acquisition proceedings in respect of the
aforesaid land continued, award passed and possession was taken by the
appellant-Corporation. The landlord and sitting tenants of the said land B
staked their claim only for additional compensation. The acquired land
got vested in the State Gover~ment and the appellant-Corporation free
from all encumbrances.
The respondents filed a writ petition before the High Court challeng· C
ing the validity of the acquisition of the said land. Single Judge dismissed
the writ petition on the ground of !aches. The Division Bench allowed the
writ petition on the ground that no vested rnghts of third parties were
created. Being aggrieved, the appellant-Corporation preferred the present
appeal.
D
Allowing the appeal, this Court
HELD : (By the Court)
1. When there is inordinate delay in filing the writ petition and when
all steps taken in the acquisition proceedings have become final, the Court E
should be loathe to quash the notifications. The High Court has, no doubt,
discretionary powers under Article 226 of the Constitution to quash the
notification under Section 4(1) and declaration under Section 6 of the Land
Acquisition Act, 1894. But it should be exercised taking all relevant factors
into pragmatic consideration. When the award was passed and possession
was taken, the Court should not have exercised its power to quash the F
award which is a material factor to be taken into consideration before
exercising the power under Article 226. The fact that no third party rights
were created in the case, is hardly a ground for interference. 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 G
inevitable that the writ petition is liable to be dismissed on the ground of
gross delay and laches. The Division Bench of the High Court was not right
in interfering with the discretion exercised by the Single Judge dismissing
the writ petition on the ground of !aches. [577-E-G]
State of Tamil Nadu v. L. Krishnan, [1996] 1 SCC 250; State of H
554 SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.
A Maharashtra v. Digambar, [1995) 4 SCALE 98; The Ramjas Foundation v.
Union of India, AIR (1993) SC 852 and Ramchand v. Union of India, [1994)
1 sec 44, followed.
{
State of Orissa v. Dhobei Sethi & Anr., (1995) 5 SCALE 1881; Bhoop
Singh 'v. Union of India & Ors., AIR (1992) SC 1414; Aflatoon & Ors. v. Lt.
B Governor of Delhi & Ors., AIR (1974) SC 2077; Indrapuri Griha Ninnan
Sahakari Smiti Ltd. v. The State of Rajasthan & Ors., AIR (1974) SC 2085;
•
H.D. Vora v. State of Maharashtra & Ors., [1984) 2 SCC 337 and Pt.
Girdharan Prasad Missir & Anr. v. State of Bihar & Anr., [1980) 2 SCC 83,
relied on.
c (per Ramaswamy, J.)
i.1. For the purpose of acquisition of any land undPr Section 126(2)
of the Maharashtra Re11ional and Town Planning Act, 1966 the land sought
to be acquired must have a direct connection with its specification, ear·
D marking or reservation for a specified public purpose in the development
plan itself. Such earmarking etc. is its charter. The absence of public
purpose would be a fetter on exercise of power of acquisition made under
Section 126(2) of the Maharashtra Regional Town Planning (MRTP) Act •
or a truncated public purpose. An exercise of eminent domain derives its
E efficacy from the reservation, specification or designation for public pur·
pose of the concerned land as found in the development plan itself. If this
nexus or linkage between the specification etc. of public purpose in the
plan and the concernecl land which is sought to be acquired under the
MRTP Act is snapped off, prior to the completion of acquisition proceed·
ings as per Section 126(2) of the MRTP Act, the entire edifice of acquisition
F tinder t~at Section would become incompetent. Such is not the case of
acquisition under the Act simplicitor, which has to start after issue of
Section 4 notification u11der the Land Acquisition Act, 1894. [570-E-G]
1.2. By considering the statutory scheme of acquisition under
Section 126 of the MRTP Act general principle of acquisition under the
G Act cannot be applied wholesale for deciding the legality of such statutory.
acquisition under the special scheme of MRTP Act. The scheme for
acquisition of earmarked land under the plan for a specified public
pur"pose thereunder, is a complete scheme or code under the MRTP Act.
It is a distinct and inde11endent scheme as compared to general .~cheme of
H acquisition under the Land Acquisition Act. Section 126(1) of the MRTP
MUNl.CORPN. OF GREATER BOMBAY v. !NOL DEV. AND INVT. CO. PVT. LTD. 555
Act is a substitute for Section 4 notification under the Act. Once a proposal A
for acquisition of land earmarked in development plan for a specified
public purpose is moved by the planning authority as per Section 126(1),
on acceptance of such proposal by the State Government a notification
under· Section 126(2) read with Section 6 of the Act gets issued. As there
is no provision for notification under Section 4 of the Act for such B
acquisition under the MRTP Act no Section SA inquiry under the Land
Acquisition Act is contemplated under the MRTP Act. It is also not
necessary to have such an inquiry made after the proposal for acquisition
is moved under Section 126(1) of the _MRTP Act by concerned planning
authority; The requirement, designation, reservation or earmarking of any
land for ac<1uisition for any specified public purpose as indicated in the C
plan has already undergone the process of hearing after the objections of
the concerned persons were considered and then such land gets earmarked
for public purpose in the plan. It is after that stage, therefore, when need
to acquire such earmarked, designated or reserved land for public purpose
under the plan arises, that Section 126(1) proposal gets issued by the D
concerned planning authority and which itself becomes a substitute for
Section 4(1) notification under the Act. Section 128 of the MRTP Act
provides t,hat if the State .Government wants to acquire lands for any
purpose ·other than the one for which the land is designated in any plan
I
or scheme then it has to resort to notification under the Act which would
naturally be followed by Section SA enquiry as per the said Act subject to E
Section 17 of that Act, and then only the State can issue declaration under
Section 6 of the Act independently of the provisions of the MRTP Act. In
such cases, as acquisition has no nexus with the development plan, objec-
tors get opportunities to object to such acquisition for the public purpose
mentioned in the notification, as Section SA of the Act would then get F
attracted to such objections. Thereafter, if Section 6 declaration is issued
by the State Government and if ultimately the land gets vested in the State
Government under Sections 16 and 17 of the Act, then as provided by
Section 128(2) of the MRTP Act, the relevant plan or scheme which
includes the land in question shall be deemed to be _suitably varied by
reason of acquisition of the said land. [S69-A-B; E-H; S70-A-C) · G
2.1. To implement the scheme framed and approved. by the State
Government under the MRTP Act, the land was notified under Section 126
as it was for a public purpose. If the earmarked, designated or reserved
land in the subsequent plan prepared and approved under the Bombay H
556 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A Metropolitan Region Development Authority Act, 1974, does not subserve
any public purpose llithin the earmarked, designated or reserved public
purposes, necessarily, the public purpose envisaged under Section 126
outlives its purpose and gets eclipsed. Public purpose envisaged in original
''·~I
approved plan no longer survives. Since further proceedings for acquiring
the land, in such circumstances, would not be for public purpose but must
B be for any private purpose unless saved by the special law, i.e., MRTP Act
or BM RDA Act, which is not consistent with the revised plan would become
necessary. It would, therefore, be necessary for the interested person to be
in
vigilant and watchful to impugn such notification under Section 126 the
High. Court under Article 226 before the acquisition becomes final and
c conclusive under Section 12(1) of the Act between the Collector (Land
Acquisition Officer) and the interested person whether or not he appeared
or represented before him and the lands stand vested in the State .under
Sectioh 16 or 17 free from all encumbrances. [571-E-F; 572-A-C]
. 2.2. On payment of compensation by the Corporation to the Land
D Acquisition Officer, statutorily the Corporation gets transfer of possession
from the State and the acquired property vests in the Corporation free from
all enchmbrances. Thereby the Corporation becomes the absolute owner of
the land free from all encumbrances including tenancy rights, if any, held
by the respondents. It would be no function of the Collector (Land Acquisi-
E tion Officer) to keep inquiring whether the notified public purpose remains
in existence. His duty and authority is to pass award under Section 11 after
follolling the procedure under Sections 9 and 10; file the award in the office
of the Collector under Section 12(1); pay compensation under Section 31
or dep~sit it in the Court and to make reference, if the application under
Section 1.8 was filed as per law and this binds his authorities. Therefore,
F the validity of the notification under Section 126 of the MRTP Act or
declaration under Section 6 of the Act needs necessarily to be impugned by
interested persons and have it quashed before the award proceedings be-
come final and conclusive under Section 12(1). If the interested person
allows the grass to grow under his feet by allolling the acquisition proceed-
G ings to go on and reach its terminus in the award and possession is taken
in furtherance thereof and vested in the State free from all encumbrances,
the slumbering interested person would be told off the gates of the Court
that his grievance would not be entertained. On the other hand, if he enlists
vigil and avails of the remedy of judicial review before the acquisition
proceedings reach finality, necessarily the High Court would enquire
(
H
MUNI.CORPN. OFGREATERBOMBAYv. JNDL.DEV.AND INVf. CO.PVf.LID. 557
whether the public purpose under Section 126 of the MRTP Act was sub- A
sisting so as to enable the Land Acquisition Officer to take further steps
under Section 9 and 10 and to mark the award under Section 11. This
would be so because of the special scheme and special law. But the situation
of the acquisition pursuant to a notification published under Section 4(1)
of the Act and declaration under Section· 6 in this perspective would be B
different and always stands on a different perspective, and is independent
of the special scheme envisaged under MRTP or BMRDA Acts, as the case
may be. One cannot be and should not be confrn;ed with another. They stand
poles apart. [572-G-H; 573-A; C-H]
3. However, the land acquired for a public purpose may be used for C
another public purpose on account of change or surplus thereof. The ac-
quisition validily made does not become invalid by change of the user or
change of the user in the Scheme as per the approved plan. It is the case of
the appellant that the Corporation intends to use the land acquired for
construction of the staff quarters for its employees. It is true that there was D
no specific plan as such placed on the record, but so long as the land is used
by the Corporation for any designated public purpose, namely, residential-
cum-commercial purpose for its employees, the Later public purpose
remains to be valid public purpose in the light of the change of the user of
the land as per the revised plan. The acquired land could be used by the
Corporation for residential-cum-commercial purpose for its employees E
other than those working in the Sewerage Purification Plant. It would not,
therefore, be necessary that the original public purpose should continue to
exist till the award was made and possession taken. Nor is it the duty of the
Land Acquisition Officer to see whether the public purpose continues to
subsist. The award and possession taken do not become invalid or ultra vires F
the power of Land Acquisition Officer. On taking possession, it became
vested in the appellant-Corporation free from all encumbrances including
tenancy rights held by the respondents. Possession and title validly vesting
in the State, becomes absolute under Section 10 of the Act and thereafter the
proceedings under the Act do not become illegal and the land cannot be G
revested in the owner. Only before taking possession, the Government can
withdraw from inquiry under Section 45(1) of the Act or High Court under
Article 226 of t~e Constitution may quash it on legal and valid grounds.
After the land stood vested in the State, even if the authorities failed to
comply with the statutory requirements, it does not have the effect on the
vesting of land in the State. Thereby the notification under Section 4(1) and H
558 SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.
A the declaration under Section 6 do not stand lapsed. The High Court,
therefore, was not right in exercise of power under Article 226 of the Con-
stitution in granting declarations or in making order of injunction against
the appellants pending writ petitions. It is equally settled law that a tenant
ca~not challenge the' notification under Section 4 and declaration under
Section 6 of the Act when the· landlord himself had accepted the award and
B received compensation. (574-H; 575-A-H; 576-A-B]
Gulam Mustafa & Ors. v. State of Maharashtra & Ors., [1976) 1 SCC
800; Mangal Oram & Ors. v. State of Orissa & Anr., (1977) 2 SCC 46 and
State of Maharashtra v.Mahadeo Deoman Rai, (1990) 3 SCC 579, followed.
c
' Collectors of 24 Parganas & Ors. v. Lalit Mohan Mullick & Ors.;' (1986)
2 SCC 138; Ram Lal Sethi & Anr. v. State of Haryana & Ors., (1990) Supp.
'l
SCC 11; Satendra Prasad Jain & Ors. v. State of U.P. & Ors., (1993) 4 SCC
369 ~ndAwadh Bihari Yadav & Ors. v. State of Bihar & Ors., (1995) 6 SCC
D 31, relied on.
·(per Majmudar, J. partly concurring) :
-l
1. The respondent-writ petitioners can be said to have waived their
obj~ctions to the acquisition on the ground of extinction of public purpose
E by their own inaction, lethargy and indolent conduct. The view taken by the
Division Bench of the High Court in this case that because of their inaction
no vested rights of third parties are created is incorrect for the reason that
because of the indolent conduct of the writ petitioners land got acquired,
award was passed, compensation was handed over to various claimants
F including the landlord. Reference applications came to be filed for larger
compensation by claimants including writ petitioners themselves. The ac-
quired land got vested! in the State Govt. and the Municipal Corporation
free from all encumbrances as enjoined by Section 16 of the Land Acquisi-
tion.' 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
G favour of the Municip,al Corporation by virtue of the Land in the State
Gov~rnment for being handed over to the Corporation. All these events
could not be wished away by observing that no third party rights were
creat~d by them. The wrrit petition came to be filed after all these events had
taken place. Such a writ petition was clearly stillborn due to gross delay and
H laches. (580-G-H; 581-A-D] ·
'
MUNI.CORPN. OF GREATER BOMBAY v. INDL. DEV. AND INVT. CO. PVT. LID. 559
2. Even though the proposal under Section 126(1) is for acquisition A
of land for 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 B
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 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 C
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 revitalised. [578-D-G]
3. It is not possible to subscribe to the general observation that a D
sitting tenant of the land which comes to be subjected to acquisition
proceedings under Sections 4 and 6 of the Land Acquisition Act, 1894 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. Therefore, on merits the Single E
Judge as well as the Division Bench had rightly held that respondent's writ
petition had good case on merits. [578-G-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 286 of
1989.
F
From the Judgment and Order dated 14.7.88 of the Bombay High
Court in W.P. No. 1683 of 1983.
S.K. Dholakia, b.N. Mishra and Ms. Promila Choudhary for the
Appellant.
G
D.R. Dhanuka, V.A. Bobde, R.F. Nariman, S.V. Kamdar, S.J. Parek,
Pratap Venugopal and K.J. John for the Respondents.
The Judgments/Order of the Court were delivered :
K. RAMASWAMY, J. This appeal by special leave arises from the H
560 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A judgment and order dated July 14, 1988 in Appeal No. 120 of 1988 of the
Bombay High Court reversing the Judgment and order of the learned
Single Judge and quashing the award passed under Section 11 of the Land
AcquiSition Act, 1894 (for short, 'the Act') and the notification dated 6th
September 1972 issued under Section 6 of the Act read with Section 126(2)
of the Maharashtra Regional and Town Planning Act (for short, the
B 'MR!P Act') as inoperative. It was also held that the land in question could
not be acquire~ under the Act. It was also further declared that all steps
taken for taking possession and vesting of plot of land bearing CS No. 503,
DharaVi DiVision, Bombay, in pursuance of the said award were illegal.
c '
A. few relevant facts leading to these proceedings deserve ta be noted
at the outset. On 6th January 1967 a draft development plan for 'G' Ward
of the Bombay Municipal Corporation was sanctioned by the State of
Maharashtra in exercise of its powers under Section 31 sub-section (1) of
the MRTP Act. The said draft development plan was earlier prepared by
D the then planning authority, namely, the Municipal Corporation of Bombay
as per the proVisions found in Chapter III of the MRTP Act dealing with
the preparation, submission and sanction to development plan. It is not in
dispute between the parties that necessary gamut enjoined by Sect,ions 21
to 30 of the MRTP Act was gone through by the then planning authority
functioning under the Act and that ultimately culminated into the sanc-
E tioned draft development plan by the State Government under Section
31(1) of the MRTP Act as aforesaid. This sanctioned draft development
plan for 'G' Ward of the Municipal Corporation of Bombay came into
force on 7th February, 1967. It is! also not in dispute between the parties
that city survey No. 503 DharaVi with which we are concerned in the
F present proceedings formed part of the said Ward 'G' and, therefore, was
naturally covered by the aforesaid sanctioned development plan. The said
city survey plot No. 503 DharaVi is a large piece of land owned by the 6th
respondent, the ProVident Investment Co. Ltd. which belongs to the
Government of Madhya Pradesh: Som.e portion of the said land, to be
precise an area admeasuring 20, 397 sq. yds. was leased out by the 5th
G respondent to 1st respondent herein. It was using the same for the business
of manufacture of art silk and rayon textiles and processing of textiles. The
appellant, Municipal Corporation of Greater Bombay which was original
3rd respondent in the writ petition has Sewage Purification Plant at
DharaVi. With the increase in the population and the area under control
H of the appellant-Corporation it became necessary to extend the DharaVi
MUNLCORPN.OFGREAIBRBOMBAY>.INDLDEV.ANDINVT.CO.PVT.LID.(KRAMASWAMY,J.J 561
Sewage Purification Works. In the year 1963, it was decided at a meeting A
of the Standing Committee of the appellant-Corporation to acquire City
Survey No. 503. The said requisite proposal was taken note of in the
aforesaid Development Plan prepared under the MRTP Act. In the said
plan, City Survey No. 503 was designated and shown as reserved for
extension of the Dharavi Sewage Purification Works. As noted above, the
B
said plan came into force w.e.f. February 7, 1967. On the basis of the
aforesaid reservation of this land in the said plan for the extension of
Dharavi Sewage Purification Works belonging to the appellant-Corpora-
tion, the appellant-Corporation, being the then planning authority sought
to acquire the said land for the purpose of extension of Dharavi Sewage
Purification Plant as per Section 126(1)of the MRTP Act and the State c
Government of Maharashtra being satisfied that the land specified in the
application was needed for the public purpose therein specified, issued the
requisite notification dated July 6, 1972 under Section 126(2) of the MRTP
Act read with Section 6 of the Act. The said provisions of Section 126 read
as under: D
"126. (1) When after the publication of a draft Regional plan, a
Development or any other plan or town planning scheme, any land
is required or reserved for any of the public purposes specified in any
plan qr scheme under this Act at any time the Planning Authority,
Development Authority, or as the case may be, (any Appropriate E
Authority may, except as otherwise provided in Section 113A,
acquire the land) either by agreement or make an application to
the State Government for acquiring such land under the Land
Acquisition Act, 1894.
F
(2) On receipt of such application, if the State Government is
satisfied that the land specified in the application is needed for the
public purpose therein specified, or (if the State Government (except
in cases falling under Section 49 (and except as provided in section
113A) itself is of opinion) that any land included in any such plan G
is needed for any public purpose, it may make a declaration to
that effect in the Official Gazette, in the manner provided in
section 6 of the Land Acquisition Act, 1894, in respect of the said
land. The declaration so published shall, notwithstanding anything_
contained in the said Act, be deemed to be a declaration duly
made under the said section : H
562 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A Provided that, no such declaration shall be made after the
expiry of three years from the date of publication of the ~aft
~egional plan, Development plan or any other plan."
. . (emphasis supplie~)
B
Pursuant to the said notification notices under Section 9 of the Act
were issu~d on March 14, 1973 to the concerned interested parties inviting
claims f?r compensation. As the respondents 1 and 2 were in possession
of the lan,d as tenants, they naturally put forward their claims for compen-
sation. It is in evidence that in 1979, respondents 1 & 2 were also heard in
C support of their claim petition seeking appropriate compensation for ac-
quisition of their rights over the land sought to be acquired. ·
In the meantime, two important events took place which have a direct
bearing on the result of these proceedings. On January 26, 1975 an Act
D called the Bombay Metropolitan Region Development Authority Act, 1974
(hereinafter referred to as "BMRDA Act") came into force. That was an
Act for forming Greater Bombay and certain areas round about Bombay
Metropolitan Region, to provide for the establishment of an Authority for
the purpose of planning, co-ordinating and supervising the proper, orderly
and rapid development of the area in that Region and of executing plans,
E projects and schemes for such development, and to provide for matters
connected ;therewith. As per schedule 1 of the said Act, the Bombay
Metropolitan Region consisted of the whole of the area of the Greater
Bombay in the parts of Thane and Colaba Districts within the specified
boundaries_, It is not again in dispute between the parties that the aforesaid
p City Survey No. 503, Dharavi got covered by the Bombay Metropolitan
Regi;in as.indicated in the said schedule. Under the BMRDA Act, as per
Section 3, ~he State of Maharashtra constituted an authority named as
Bombay Metropolitan Region Development Authority (hereinafter
referred to as 'BMRDA'). As per Section 3, sub-section (3) of the said Act,
the said Metropolitan Authority was to be deemed to be a local authority
G within the trieaning of the term 'local authority' as defined by the Bombay
General da~ses Act, 1904. As per Chapter IV of the BMRDA Act, diverse
functions were to be performed by the said authority. The said BMRDA
had, undei Section 12(l)(c), to formulate and sanction schemes for the
developme~t of the Metropolitan Region or any part thereof. Under
H MRTP Act, the term 'planning authority' was defined by Section 2 sub-sec-
MUNL CORPN. OF GREATER BOMBAY••. INDL DEV. AND INVT. CO. PVT. LID. ( K. RAMASWAMY, J.J 563
tion (19) to mean a local authority and it included a Special Planning A
Authority constituted or appointed under Section 40 of that Act. On
coming into force of BMRDA Act, the State Government exercising its
power under Section 40 sub-section l(c) of the MRTP Act had appointed
BMRDA as a special Planning Authority for development of the notified
area, namely, the metropolitan area notified under BMRDA Act. The said
B
notification was issued by the State of Maharashtra OJ} January 26, 1975.
As per sub-section (3) of Section 40 of the MRTP Act, on the
constitution of the aforesaid planning authority for the metropolitan area
of Bombay the provisions of Chapter VI of MRTP Act dealing with 'New
Towns' got attracted for operation by the said Special Planning Authority, C
i.e., BMRDA By a notification dated March 31, 1977 issued by the Urban
Development and Housing Department of the Maharashtra Government
the State Government appointed BMRDA to be the· Special Planning
Authority for Kurla Taluq in Bombay Sub-district and Dharavi area of the
Bombay city as they were in a neglected condition and needed to be D
planned and developed in a comprehensive manner. In exercise of its
powers under Section 40 sub-section 3(d) read with Section 115 of the
MRTP Act, it submitted to the State Government its proposals for the
development of the area put under its planning jurisdiction, after following
the procedure prescribed therein on March 7, 1977 for the approval. It is
again not in dispute between the parties that the City Survey No. 503 E
Dharavi was covered by the said notification. Once these proposals for
development of the area known as Bandra-Kurla complex were received
by the State Government after the Special Planning Authority had followed
the procedure of Section 115 sub-section (2) of the MRTP Act read with
Section 40 sub-section 3(d) of the said Act, after due consideration given F
by the State Government, the said proposals were approved by the State
Government as per Section 115 sub-section (2) of the MRTP Act read with
Section 40 sub-section 3(d) on April 19, 1979 and they were published as
per Section 40 sub-section (5) of the MRTP Act· in Government Gazette
on May 3, 1979 and accordingly they became final.
G
Section 40 of the MRTP Act with its relevant sub-clauses reads as
under:
"40. (1) The State Government may, by notification in the Official
Gazette, for any undeveloped area specified in the notification (in H
564 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A this Act referred to as "the notified area") either -
·(a) ........... .
(aa) ........... .
B (b) ........... .
or
(c) appoint the Bombay Metropolitan Region Development
Authority established under the Bombay Metropolitan Region
C Development Authority Act, 1974, to be the Special Planning
·Authority for developing the notified area.
,
(2) ........... .
(3) On the constitution of the Special Planning Authority, the
D provisions of Chapter VI of this Act shall, subject to the provisions
of this section andl section 41, apply mutatis mutandis to the Special
Planning Authority as they apply in relation to a Development
Authority, as if the notified area were a new town, subject to the
following modification, namely :
E (a) ........... .
'(b) ............
(c) ........... .
F ( d) for section 115 the following shall be substituted, namely :
"115. (1) A Special Planning Authority shall, from time to time
submit to the State Government its propos,tls for the development
of land (being land either belonging to, or vesting in, it or acquired
or proposed to be acquired under section 116), and the State
G Government may, after consultation with the Director of Town
Planning, approve such proposals either with or without modifica-
ti on. '
(2) Before submitting the proposals to the State Government, the
H Special Planning Authority shall carry out a survey and prepare an
MUNI. CORPN.OFGREATERBOMBAY,. INDL DEV.ANDJNVT. CO.Pvr. L1D. ( K RAMASWAMY,J.J 565
existing land-use map of the area, and prepare and publish the A
draft proposals for the lands within its jurisdiction together with a
notice in the Official Gazette and local newspapers in such manner
as a Special Planning Authority may determine, inviting objections
and suggestions from the public within a period of not more than
30 days from the date of notice in the Official Gazette. The Special
B
Planning Authority may, if it thinks fit, give individual notices to
persons affected by the draft proposals. ·
(3) The Special Planning Authority may after duly considering the
objections or suggestions, received by it, if any, and after giving an
opportunity to persons affected by such draft proposals of being c
heard modify its proposals, if necessary, and then submit them to
the State Government for its approval. The orders of the State
Government approving such proposals shall be published in the
Official Gazette.
(e) for section 116, the following shall be substituted, namely: D
116. Every Special Planning Authority shall have the powers of a
Planning Authority under this Act as provided in Chapter VII for
the purposes of acquisition of such land in the notified area as it
considers to be necessary for the purpose of development in that E
area either by agreement or under the Land Acquisition Act, 1894,
or any land adjacent to such area which is required for the
development of the notified area and any land whether adjacent
to that area or not which is ·required for provision for services or
amenities for the purposes of the notified area.
F
(t) for section 117, the following shall be substituted, namely :
117. Where any land has not been acquired within a period of ten
years from the date of notification under sub-section (1) of Section
40, any owner of the land may, by notice in writing served on the G
Special Planning Authority, require it to acquire his interest
therein; and thereupon, the provisions of section 127 providing for
lapsing of reservations shall apply in relation to such land as they
apply in relation to land reserved under any plan under this Act.
(4) In preparing and submitting its proposals for developing any H
566 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A land under section 115 and in approving them under that section,
the Special Planning Authority and the State Government shall
take particular care to take into consideration the provisions of
any draft or final Regional Plan, draft or final development plan,
I or any draft or final town planning scheme, or any building bye-
laws or regulations, which may already be in force in the notified
B area or in any part thereof.
(5) Where any proposals for development of any land are approved
by the State Government under section 115, the provisions of the
proposals approved by the State Government shall be final, and
c shall prevail, and be deemed to be in force, in such notified area;
and to that extent the provisions of any such plan or scheme
, applicable to and in force in the notified area or any part thereof
shall stand modified by the proposals approved by the State
Government."
D A conjoint reading of the aforesaid provisions would show that by
May 3, 1979 instead .of the original sanctioned draft development special
plan for 'G' Ward which was holcl:,;g the field from February 7, 1967 a new
development general plan for Bandra-Kurla area became operative. As
noted earlier, City Survey No. 503 Dharavi which was earlier under the 'G'
E Ward of Bombay Municipal Corporation and was covered by Sanctioned
Development Plan of January 6, 1967 now got covered by the Bandra-Kurla
' ' .
Complex, plan as per the new Sanctioned Development Plan for Bandra-
Kurla complex, the earlier reservation made in connection with City Survey
No. 503 Dharavi which was earmarked to be utilised for locating the
extended Dharavi Sewage Purification Work got altered and in its place a
F
new area comprising Block 'A' was earmarked for location of a new sewage
treatment plant. The said relevant proposal is found in the booklet cap-
tioned "Bandra-kurla Complex" in Chapter VI thereof containing the
detailed proposals. So far as Block 'A' is concerned, in paragraph 7.1 (v)
it has been provided as under :
G
"(v) The Bombay Municipal Corporation is planning to provide a
sewage treatment plant to be located near 'A' Block as recom-
mended by their consultants. All the sewage from Bandra east and
Kurla etc. will be collected and pumped to this plant and after
H treatment it will be let into the deep-sea out fall sewer. The present
MUNL C'ORPN. OF GREATER BOMBAY•·. INDL DEV. ANDINVT.CO.PVT.LID. f K RAMASWAMY,J.J 567
sewage treatment plant at Sio11 will be discontinued. The require- A
. ment for an area of 35 acres, including 5 acres to accommodate
housing for essential staff, has been indicated. The purification
plant proper will be located west of the 'A' Block by reclaiming at
the southern end of the land strip at Bandra. But the five acres of
land required for residential purpose for the essential staff is to B
be made available to the Municipal Corporation from the western
portion of Block 'A'. Further reclamation on the west for locating
the purification plant will be done by the Bombay Municipal
Corporation in consultation with the Central Water & Power
Research Station, Khadakvasla, as tentatively shown on the layout C
_plan."
(emphasis supplied)
This clearly shows that May 3, 1979 onwards this sewage treatment
plant was to be located in 35 acres of land reserved under Block 'A' of the D
said planning proposals. It is, therefore, obvious that Dharavi Sewage
Purification plant had to be dismantled and shifted to Block 'A' at the place
indicated for it in the approved plan. So far, the City Survey No. 503, with
which we are concerned, went in and was found located under the new
proposals in Block 'H'. The existing purification plant of the Bombay E
Municipal Corporation was found covered by the said block 'H'. Conse-
quently, the question of its extension no longer remained feasible or
possible for the Municipal Corporation. On the contrary, the entire land
of Block 'H' over a part of which the existing sewerage plant was situated
was to be used for the purpose shown in the plan attached to the proposals. F
A mere look at the plan attached to the proposals would show that not
only the existing Dharavi sewage Plant was to be discontinued and shifted
to Block 'A' but the land covered by that plan as well as the other lands
of Block 'H' which also naturally covered the disputed City Survey No. 503
were to be utilised for residential, commercial, para-commercial and social
facilities/purposes. No part of Block 'H' area was reserved for any special G
public purpose, unlike the earlier reservation of plot No. 503 Dharavi under
1977 Development Plan.
..
.)
The result was that after May 3, 1979 City Survey No. 503 got de-
reserved from the earlier public purpose of locating the extension of H
568 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
A Dharavi Sewage Purification Plant and the entire Block 'H' was to be
utilised under the new plan for residt:ntial, commercial, para-commercial
and social facilities by its local residents without any special reservaticm for
the Municipal Corporation. Normally, on its so happening, the earlier
notification issued under Section 126 sub-section (2) read with Section 6
of the Act lost its utility, vitality and necessity. As we have seen earlier,
B Section 126(2) read with Section 126(1) requires as a condition precedent
to acquisition of any land which can be proposed under Section 126(1),
that there must exist the fact situation that such land is earmarked, re-
quired or reserved for any of the public purposes specified in any plan or
scheme under the Act. Section 125 of the MRTP Act states that any land
c required, reserved or designated in Regional plan, Development plan or
town planning scheme for a public purpose or purposes including plans for
any area of comprehensive development or for any new town shall be
deemed to be land needed for a public purpose within the meaning of the
Act, 1894. A conjoint reading of Sections 125 and 126(1), therefore, shows
D that a planning authority can propose acquisition of only that land which
is required, reserved or designated in the development plan for any public
purposes and it is such a proposal which can be accepted by the State
Government under sub-section (2) of Section 126 on being satisfied with
the land specified in the application as needed for public purpose specified
therein .. Consequently, any planning authority proposing action under Sec-
E tion 126(2) by the State Government must show that the land which it is
proposing to acquire is required, reserved or designated in the concerned
development plan for public purpose and if the land is not so required,
reserv_ed or designated in the plan for a public purpose it cannot be
subjected to proceedings of acquisition under Section 126(1) read with
F Section 126(2). Once the specification of public purpose concerning the
given land ceases to exist because of the de-reservation under the plan so
far as that land is concerned, it cannot be acquired under Section 126(1)
read with Section 126(2) for the planning authority by the State Govern-
ment,' without being required reserved or designated for any public pur-
pose in the revised development plan.
G '
'1t has to be kept in view that Section 126 sub-section (1) of the
MRTP 'Act is a substitute for Section 4 notification under the Act. Once a
proposal for acquisition of land earmarked in development plan for a
specified public purpose is moved by the planning authority as per Section
H 126(1), on acceptance of such proposal by the State Government a notifica- '·
MUNI. CORPN. OF GREA1ERBOMBA y,., INDL DEV.AND INVT. CO. PVI'. LID. (I\. RAMASWAMY,.l.J 569
lion under Section 126(2) read with Section 6 of the Act gets issued. It has A
to be appreciated that as there is no provision for notification under
Section 4 of the Act for such acquisition under the MRTP Act no Section
5A enquiry under the Land Acquisition Act is contemplated under the
MRTP Act. It is also not necessary to have such an enquiry made after the
proposal for acquisition is moved under Section 126(1) of the MRTP Act
B
by concerned planning authority, for the obvious reason that earmarking
of the concerned land for specified public purpose under the development
plan, which is the basis of proceedings under Section: 126 sub-section ( 1)
of the MRTP Act, is for public purpose and has already been done after
hearing objections of persons concerned at the stage of preparation of the
draft development plan. c
If we turn to Chapter III of the MRTP Act, we find that the entire
machinery is provided for preparation, submission and sanction of develop-
ment plan proceeding from Section 21 and ending with Section 31. These
provisions, in. short, provide for preparation of draft development plan by D
<
the planning authority inviting objections of persons concerned against
I
such proposals, hearing of objections filed by the objectors as per Section
28 sub-sectio;1 (3) by the Planning Committee and then submitting its
report to the planning authority which ultimately gets the proposals ap-
proved by the State Government under Section 30. All these provisions do E
indicate that requirement,. designation, reservation or earmarking of any
land for acquisition for any specified public purpose as indicated in the
plan has already undergone the process of hearing after the objections uf
the concerned persons were considered and then such land gets earmarked
for public purpose in the plan. It is after that stage, therefore, when need
to acquire such earmarked, designated or reserved land for public purpose F
• under the plan arises, that Section 126(1) proposal gets issued by the
concerned planning auth0rity and which itself becomes a substitute for
Section 4(1) notification under the Act. It would thus, appear that the
scheme of acquisition of earmarked land under the plan for a specified
public purpose thereunder, is a complete scheme or code under the MRTP G
Act. It is a distinct and independent scheme as compared to general
scheme of acquisition under the Land Acquisition Act.
In this connection. Section 128 of the MRTP Act also is worth noting.
The said section provides that if the State Government wants to acquire H
570 SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.
A lands for any purposes other than the one for which the land is designated
in any plan or scheme then it has to resort to notification under the Act
which would naturally be followed by Section SA enquiry as per the said
Act subject to Section 17 of that Act, and then only the State can issue
declaration under Section 6 of the said Act independently of the provisions
of the MRTP Act. In such cases, as acquisition has no nexus with the
B
development plan, objectors get opportunities to object to such acquisition
for the public purpose mentioned in the notification, as Section SA of the
Act would then get attracted to such objections. Thereafter, if Section 6
declaration is issued by the State Government and if ultimately the land
gets vested in the State Government under Sections 16 and 17 of the Act,
c then as provided by Section 128 sub-section (3) o( the MRTP Act, the
relevant plan or scheme which includes the land in question shall be
deemed to be suitably varied by reason of acquisition of the said land. This
provision also would indicate that acquisition as per section 126 stands on
an entirely different footing as compared to acquisition of any land for ally
D public purpose as per the general law of land acquisition, namely, the Act,
1894. .
It .is, therefore, clear that for the purpose of acquisition of any land
under Section 126(2) of the MRTP Act, the land sought to be acquired
E must have a direct connection with its specification, earmarking or reser-
vation for a specified public purpose in the development plan itself. Such
earmarking etc. is its charter. In other words, absence of public purpose
would be fetter on exercise of power of acquisition made under Section
126(2) of the MRTP Act or a truncated public purpose. An exercise of
F eminent domair derives its efficacy from the reservation, specification dr
designation for public purpose of the concerned land as found in the
development plan itself. If this nexus or linkage between the specification
etc. of public purpose in the plan and the concerned land which is sought
to be acquired under the MRTP Act is snapped off, prior to the comple-
tion of acquisition proceedings as per Section 126(2) of the MRTP Act,
G the entire edifice of acquisition proceedings under Section 126 would
crumble down and the acquisition under that section would become incom-
petent. Such is not the case of acquisition under the Act simplicitor, which
has to start after issue of Section 4 notification. Consequently, by consider-
ing the'statutory scheme of acquisition under Section 126 of the MRTP
·H Act, general principle of acquisition under the Act cannot be applied
MUNL CORPN. OF GREATER BOMBA y,_ JNDI.. DEV.ANDINVT. CO. PVT.LTD.( K. RAMN>'\VAMY,J.J 571
wholesale for deciding the legality of such statutory acquisition under the A
special scheme of MRTP Act.
On the facts of the present cases, it is not in dispute that on July 6,
1972 when the State of Maharashtra issued requisite notification for ac-
quiring lease-hold land of respondent No. 1, situated in City Survey No.
B
503 Dharavi, the said land was duly reserved for the public purpose for
extension of Dharavi Water Sewage Plant of the Municipal Corporation as
ear-marked in the then Operative Sanctioned Development Plan of
February 6, 1967. Therefore, on July 6, 1972, the notification under Section
126(2), MRTP Act read with Section 6 of the Land Acquisition published
on July 6, 1972 was perfectly valid and operative. However, before acquisi- c
tion proceedings qua that land pursuant to the said notification could
culminate into the award, the said land got de-reserved for that specified
public purpose and went out of earmarked purpose. Thus, May 3, 1979
onwards, City Survey No. 503 which was then merged and comprised as
Block 'H' of Bandra-Kurla Complex ceased to be reserved for the specified D
public purpose of being utilised for extension of Sewage Plant of the
Bombay Municipal Corporation. Once that happened and it was marked
in the approved plan under BMRDA Act for residential purposes etc.,
ordinarily efficacy of the notification under Section 126(2) qua this land
got extinguished and the specified public purpose resultantly died down.
E
It would be necessary to emphasise that to implement the scheme
framed and approved by the State Government under the MRTP Act, the
land was notified under Section 126 as it was for a public purpose. If the
ear-marked, designated or reserved land in the subsequent plan prepared
and approved under BMRDA Act, does not subserve any public purpose F
within the ear-marked, designated or reserved public purposes, necessarily,
the public purpose envisaged under Section 126 outlives its purpose and
gets eclipsed. Public purpose envisaged in original approved plan no longer
survives and if the land sought to be acquired is diverted to or earmarked
or designated to a private purpose, necessarily remedy must be either G
under Chapter 7 of the· Act or any relevant law or Section 126 as per
revised and approved scheme a:t which stage the owner gets opportunity to
submit his objections for consideration before submitting the plan for
approval by the State Government. Take, for instance, the self same land
under the approved scheme und.er MRTP Act which was for purification
of sewerage treatment plant. This was a special scheme. In the general H
572 i '•i SUPREME COURT REPORTS [1996j SUPP. 5 S.C.R.
A scheme, i.e:•,,jn Bandra-Kurla sche\ne, if the said land was earmarked for
private purpose, necessarily the original public purpose was eclipsed. Fur-
ther proceeding for acquisition becomes questionable. Since further
proceedings for acquiring the land, in such circumstance, would not be for
public purpose but must be for any private purpose unless saved by the
special law;ie., MRTP Act or BMRDA Act, which is not consistent with
B the scheme Of the Act, fresh notification under Section 126 of MRTP Act
consistent with the revised plan would become necessary. It would, there-
fore, be ne'cessary for the interested person to be vigilant and watchful to ·
impugne such notification under Section 126 in the High Court under
Article . 226 .before the acquisition becomes final and conclusive under
C Section 12(1) of the Act between the Collector (Land Acquisition Officer)
and the interested person whether or not he appeared or represented
before him and the lands stand vested in the State under Section 16 or 17
free from all encumbrances.
:;'
D After .,the award under Section 11 of the Act .was made by the
Collector he is empowered under Section 16 to take possession of the land,
if the possession was not already taken, exercising power under Section
17(4). Thereupon, the land shall vest absolutely in the Government free
from all eifcumbrances. It is well settled law that taking possession of the ·
land is by ;means of a memorandum (panchnama) prepared by the Land
E Acquisition Officer and signed by Panch witnesses called for the purpose.
Subsequently, the Collector hands over the same to the beneficiary by
means of another memorandum or panchnama, as the case may be. But in
this case S~ction 91 of the BMC Act statutorily comes into play which ·
would indicate that the Land Acquisition Officer while making award
should intihiate to the Commissioner, Municipal Corporation of the
F
amount of compensation determined and all other expenses. The Corpora-
tion shall p~y over the same to the Land Acquisition Officer.
By operation of sub-section (2) thereof, the amount of compensation·
awarded and all other charges indicated in the acquisition of the property
G shall be paid by the Commissioner; "thereupon the said property shall vest
in the Corporation". In other words, no payment of compensation by the
Corporation to the Land Acquisition Officer, statutorily the Corporation
gets transfer of possession from the State and the acquired property vests
in the Corporation free from all encumbrances. Thereby the Corporation
H becomes . the absolute oW11er of the land free from all encumbrances
MUNL OORPN. OF GRFAT!!RBOMBAY,, JNDL DEV. ANDINVJ'. 00. PVT. L'ID. [ K. RAMASWAMY, J.] 573
including tenancy rights, if any, alleged to be held by the respondents. A
From the facts of this case, it is clear that the owner, a public
undertaking of the Madhya Pradesh Government, had received the com-
pensation and handed over the possession to the Land Acquisition Officer
on March 4, 1983. The Land Acquisition Officer, thereby, had taken B
symbolic possession of the land of the 5th respondent owner. The owner
and the respondents had reference under Section 18 which was pending.
It would be no function of the Collector (Land Acquisition Officer)
to keep inquiring whether the notified public purpose remains in existence.
His duty and authority is to pass award under Section 11 after following C
the procedure under Sections 9 and 10; file the award in the office of the
Collector under Section 12(1); issue notice to all interested persons under
Section 12(2); pay compensation under Section 31 or deposit it in the Court
and to make reference, if the application under Section 18 was filed as per
law and this binds his authorities. Therefore, the validity of the notification D
under Section 126 of the MRTP Act or declaration under Section 6 of the
Act needs necessarily to be impugned by interested persons and have it
quashed before the award proceedings become final and conclusive under
Section 12(1). If the interested person allows the grass to grow under his
feet by allowing the acquisition proceedings to go on and reach its terminus
in the award and possession is taken in furtherance thereof and vested in E
the State free from all encumbrances, the slumbering interested person
would be told off the gates of the Court that his grievance should not be
entertained. On the other hand, if he enlists vigil and avails of that remedy
of judicial review before the acquisition proceedings reach finality, neces-
sarily the High Court would enquire whether the public purpose under F
Section 126 of the MRTP Act was subsisting so as to enable the Land
Acquisition Officer to take further steps under Sections 9 and 10 and to
make the award under Section 11. This would be so because of the special
scheme and special law. But the situation of the acquisition pursuant to a
notification published under Section 4(1) of the Act and declaration under G
Section 6 in this perspective would be different and always stands on a
different perspective and is independent of the special scheme envisaged
under MRTP Act of BMRDA Act, as the case may be. One cannot be and
should not be confused with another. They stand poles apart. What is
required is clarity in thinking process. The confusiuon would land in
miscarriage of justice and avoidable frustration of public purpose. Only one H
574 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
A exception in this behalf should be kept in mind, i.e., whether the public
purpose envisaged under both the special Act and the General Act and
the use of the acquired land should always be for a public purpose. In this
behalf, it is .of relevance to note law laid down by this Court on the
diversion of the land acquired for one public purpose and its use thereof
for another.
B
In Gu/am Mustafa & Ors. v. The State of Maharashtra & Ors., [1976)
1 SCC 800, a Bench of three Judges had held that "once the original
acquisition is valid and title had vested in the municipality, how it used the
excess land was no concern of the original owner and could not be the
C basis for inv;mdating the acquisition. There is no principle of law by which
a valid compulsory acquisition stands voided because long after the requir-
ing authority diverts it to a public purpose other than the one stated in the
Section 6(3) declaration". The same view was reiterated by another Bench
of three Judges in Mangal Oram & Ors. v. State of Orissa & Anr., [1977] 2
D sec 46 wherein it was held that "(U)se of land after a valid acquisition for
a different· public purpose will not invalidate the acquisition".
In State of Maharashtra v. Mahadeo Deoman Rai @ Kalal & Ors.,
[1990] 3 SCC 579 yet another Bench of three Judges had held that require-
ment of public purpose may change from time to time but the change will
E not vitiate the acquisition proceedings. Concerned authority should review
the requirement aspect periodically in the prevailing social context. In
Collectors of 24 Parganas & Ors. v. La/it Mohan Mullick & Ors., [1986) 2
SCC 138 a Bench of two Judges had held that, "acquisition of the land for
a public purpose, namely, the use of the land for rehabilitation of displaced
F persons, to be altered by subsequent development for another public
purpose, namely, for construction- of a hospital was as per Development &
Planning Ai;t In Ram Lal Sethi & Anr. v. State of Haryana & Ors.,[1990]
Supp. SCC 11 the land was acquisition for public purpose of construction
of road but e;agencies of development necessitated allotment of a portion
of it to a private company; allottee company was in possession for 17 years
G and was not made a party to the litigation; allotment was not shown to be
an act of favoritism. It was held by the two-Judge Bench that the acquisition
was not vitiated on account of change of the user.
It is thus well settled legal position that the land acquired for a public
H purpose may be used for another public purpose on account of change or
MUNL CORPN. OF GREAIBRBOMBAYv. INDL DEV. ANDINVT. CO. PVT.LTD. ( K RAMASWAMY,J.] 575
surplus thereof. The acquisition validly made does not become invalid by A
change of the user or change of the user in the Scheme as per the approved
plan. It is seen that the land in Block 'H' which was intended to be acquired
for original public purpose, namely, the construction of Sewage Purification
Plant, though was shifted to Block 'A', the land was earmarked for residen-
tial, commercial-cum-residential purposes or partly for residential purpose
B
etc. It is the case of the appellant that the Corporation intends to use the
land acquired for construction of the staff quarters for its employees. It is
true that there was no specific plan as such placed on the record, but so
long as the land is used by the Corporation for any designated public
purpose, namely residential-cum-commercial purpose for its employees,
the later public purpose remains to be valid public purpose in the light of C
the change of the user of the land· as per the revised approved plan. It is
true that in the original scheme the residential quarters for the staff
working in Sewage Purification Plant were intended to be constructed and
the same purpose is sought to be served by the acquisition of the land by
using the land in Block 'A'. Nonetheless the acquired land could be used D
by the Corporation for residential-cum-commercial purpose for its
employees other than those working in the Sewage Purification Plant. It
would not, therefore, be necesrnry that the original public purpose should
continue to exist till the award was made an<l possession taken. Nor is it
the duty of the Land Acquisition Officer to see whether the public purpose
continues to subsist. The award and possession taken do nut become E
invalid or ultra vires the power of Land Acquisition Officer. On taking
possession, it became vested in BMC free from all encumbrances including
tenancy rights alleged to be held by the respondents. Possession and title
validly vesting in the State, becomes absolute under Section 10 of the Act
and thereafter the proceedings under the Act do not become illegal and F
the land cannot be revested in the owner. Only before taking possession,
the Government can withdraw from inquiry under Section 45(1) of the Act
or High Court under Article 226 of the Constitution may quash it on legal
and valid grounds. If the award under Section llA was not made within
two years from the date of the publication of the declaration under Section
6, as enjoined under Section llA of the Land Acquisition Act, whether the G
notification under Section 4(1) would lapse. This Court in Satendra Prasad
lain & Ors. v. State of U.P. & Ors., [1993) 4 SCC 369 had held that after
the land stood vested in the State, even if the authorities failed to comply
with the statutory requirements, it does not have the effect on the vesting
H
576 SUPREME COURT REPORTS (1996] SUPP.5S.C.R.
A of land in the State. Then:by the notification under Section 4(1) and the
declaration under Section 6 do not stand lapse. The same view was
reiterated by another Bench in,Awadh Bihari Yadav & Ors. v, State of Bihar
& Ors., (1995] 6 SCC 31. The High Court, therefore, was not right in
/
exercise of power under Article 226 of the Constitution in granting decla•
rations as mentioned in the beginning or in making order of injunction
B
against the appellants pending writ petitions. It is equally settled law that
a tenant cannot challenge the notification under Section 4 and declaration
under Section 6 of the Act when the landlord himself had accepted the
award and.received compensation.
C The next question is : whether the High Court was right in issuing
the writ after long lapse of time? The respondents, admittedly, approached
the High Court after a delay of 4 years; that too after award was made and
possession was taken from the owner. It is seen that the declaration was
published ~s long back as on May 3, 1979. Earlier to that after the draft
plan was published, notice was given to all the parties. The respondents,
D who ·claim to be the tenants, had not raised the little finger in making any
objection to the proposed scheme or the revised plan. The award was made
on February 24, 1983; possession was taken on March 4, 1983 and on the
same day it stood transferred to the BMC. The writ petition came to be
filed thereafter on July 4, 1983. The learned Single Judge dismissed the
E writ petition on the ground of !aches.
In State of Tamil Nadu v. L. Krishnan, [1996] 1 SCC 250, a Bench of
three Judg~s of this Court had held that "the delay in challenging notifica-
tion was fatal and the writ petitions were liable to be dismissed on the
ground of !aches". Exercise of power under Article 226 of the Constitution,
F after award was made, was held to have been wrongly made. Delay to make
award was not a ground to quash the acquisition proceedings.
In State of Orissa v. Dhobei Sethi & Another, [1995] 5 SCALE 1881,
it was held that on account !aches on the part of the petitioners, the writ
G petition was liable to be dismissed. It was also held therein that the
subsequent purchaser cannot raise any objection for the validity of the
acquisition. The High Court was, therefore, held unjustified in issuing the
writ and quashing the notification and declaration under Sections 4(1) and
6 respectively.
'
H In State of Maharashtra v. Digambar, (1995) 4 SCALE 98, another
MUNI. CORPN. OFGREA'IER BOMBAy,., INDL. DEV. AND JNVJ'. CO. PVT. LID. ( K. RAMASWAMY.J.J 577
Bench of three Judges directed dismissal of the writ petition on the ground A
of (aches and held that the High Court had not judiciously and reasonably
exercised its discretion in passing the notification under Section 4(1) of the
Act.
In The Ramjas. Foundation v. Union of India, AIR (1993) SC 852, a
Bench of three Judges had held that mere retaining the possession or delay B
on the part of the authority to pass award are not grounds to challenge the
notification under Section 4(1) and declaration under Section 6, and the
!aches was held to be ground to dismiss the writ petition. Accordingly this
Court allowed the appeal and dismissed the writ petition.
In Ramchand v. Union of India, [1994) 1 SCC 44, another Bench of
c
three Judges of this Court had held that because of inordinate delay in
approaching the court after entire process of acquisition was over pursuant
to notification under Section 4( 1) and declaration under Section 6, the
court was not justified in quashing the same. Same view was reiterated in
Bhoop Singh v. Union of India & Ors., AIR (1992) SC 1414; AflatoOll & D
Ors. v. Lt. Govemor of Delhi & Ors., AIR (1974) SC 2077; lndrapwi Gliha
Ninnan Sahakali Samiti Ltd. v. The State of Rajas.than & Ors., AIR (1974)
SC 2085; H.D. Vora v. State of Maharashtra & Ors., [1984) 2 SCC 337 and
Pt. Girdharan Prasad Missir & Another v. State of Bihar & Another, (1980]
2 sec 83.
E
It is thus well settled law that when there is inordinate delay in filing
the writ petition and when all steps taken iu the acquisition proceedings
have become final, the Court should be loathe to quash the notifications.
The High Court has, no doubt, discretionary powers under Article 226 of
the Constitution to quash the notification under Section 4(1) and declara-
tion under Section 6. But it should be exercised taking all relevant factors F
into pragmatic consideration. When the award was passed and possession
was taken, the Court should not have exercised its power to quash the
award which is a material factor to be taken into consideration before
exercising the power under Article 226. The fact that no third party rights
were created in the case, is hardly a ground for interference. The Division G
Bench of High Court was not right in interfering with the discretion
exercised by the learned Single Judge dismissing the writ petition on the
ground of !aches.
The appeal is allowed with costs quantified at Rs. 10,000 (Rupees
Ten Thousand only). H
578 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
A 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 ]aches.
B
However, I may mentio_n 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
c another public purpose are with great respect not found by me to be
apposite. I, therefo~e, record my reasons for the said view.
Even though the proposal under Section 126(1) is for acquisi-
tion of land for a specified public purpose, if the planning authority
D wants to acquire the land subsequently for any other public pur-
pose 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 indicatcJ in the
E plan meaniri,g thereby that the land must be shown to be reserved
for the staff 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
F Section 116 of the M.R.T.P. Act and follow the gamut thereafter.
So long a; 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
revitalised. I also do not subscribe to the general observation that
a sitting te~ant of the land which comes to be subjected to acquisi-
G tion 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 con-
cerned tenant having sufficient subsisting interest in the land. In
my view, therefore, on merits the learned Single Judge as well as
H the Division Bench has rightly held that respondent's writ petition
MUNL CORPN. OF GREAlER BOMBAYv. JNDL DEV. AND INVf. CO.PVf. LID. ( S.R MAlMUDAR, J.( 579
had good case on merits. A
However, as the li;:arned Single Judge dismissed the writ peti-
tion on the ground of delay and !aches 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
B
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 c
on 3rd May 1979, the requisite statutory procedure of Section 40 sub-sec-
tion 3(d), was necessarily follO\ved 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 D
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 for 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 deter-
mine. It has also to invite objections and suggestions from the public within E
the period of not more than 30 days from the date of notice in the Official
Gazette. Thus these proposals are to be publis' ed 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 Plan-
F
ning 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 G
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, Respondent Nos.
1 and 2 must have known or with due diligence would have known that H
580 SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.
A 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 favourable proposal but obviously they should be
inquisite enough to know as early as between 1977 and 1979 that the cloud
on their land was getting lifted. Therefore, they would have been put to the
enquiry as t~ what happened to this proposal and what was the final
B
outcome the~eof. Instead of bothering anyway about it, they just slumbered
on and supported their claims for compensation before the Land Acquisi-
tion 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 possess10n to be taken by the
c Corporation on 4th March 1983 though of course it was symbolic posses-
sion as they were tenants in possession. To add to this indolent conduct
and connivance on the part of the rcspm;ident-writ petitioners, in these very
acquisition proceedings, they filed reference application under Section 18
of the Land 1Acquisition Act on 7th April 1983 claiming additional com-
D pensation. Thus upto 7th April 1983 they had no objection to their land
which had alr'eady 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
E members present had asked the Dy. Municipal Corporation to make
statement oil certain queries raised by him and one of the queries was
about absence of proposals to have extension of Sewage Purification Plant,
Dharavi. Thi1f also shows that Respondent Nos. 1 and 2 we.re fully alive to
the fact that there was no scope for extension of Dharavi Sewage Plant on
F . 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 ~tld 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
G 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 !aches. 'The respondent-writ petitioners can be said to have waived
their objections to the 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
H i
MUNI. C'ORPN. OF GREAIBRBOMBA Yv. !NDI.. DEV. AND INVT. CO. PVT. LID. ( K. RAMASWAMY, J.] 581
no vested rights of third parties are created. That finding is obviously A
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 ap·
plications came to be filed for larger compensation by claimants including
writ petitioners themselves. The acquired land got vested in the State Govt. B
and the Municipal Corporation free from all encumbrances as enjoined by
Section 16 of the Land Acquisition Act. Thus right to get more compen-
sation 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 C
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 stillborn due to gross delay and !aches. I, therefore,
respectfully agree with the conclusion to which my learned brother Ramas·
wamy, J. has reached that on the ground of delay and !aches the writ D
petition is required to be dismissed and the appeal has to be allowed on
that ground.
ORDER
In view of the concurrent order this appeal has to be allowed and E
the writ petition has to be dismissed. The order of the Division Bench is
set aside and the order of the learned Single Judge stands restored.
Consequently the appeal is allowed with costs quantified at Rs. 10,000
(Rupees Ten Thousand only).
v.s.s. Appeal allowed and Petition dismissed.
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