C. MOOKERJEE, C.J.
Appellant No. 1 had been a tenant in respect of an area measuring 20,397 square yards forming part of the city Survey No. 503, Dharavi, under the provident investment Company Ltd., the 5th respondent. The learned Single Judge has dismissed the Appellants writ petition, inter alia, on the ground of delay in coming to the Court, in spite of the finding that proceedings for acquisition of the said plot No. 503 had become invalid by happening of the event hereinafter mentioned, hence, this Appeal before us.
2. On 7th February, 1967 a development plan prepared under the Maharashtra Regional and Town Planning Act, 1966, was finalised. Under the said plan the cadastral Survey Plot No. 503, was reserved for extension of Dharavi Sewerage Purification works. On September 6, 1972 in exercise of the powers conferred by sub-section (4) read with sub-section (2) of section 126 of the Maharashtra Regional and Town Planning Act, 1966, read with section 6 of the Land Acquisition Act, 1894 the Government of Maharashtra made a declaration to the above effect that the Cadastral Survey plot No. 503 was required for extension of Dharavi Sewerage purification works. The declaration recited inter alia that the Municipal Corporation of Greater Bombay had made an application to the State Government for acquisition of the said land reserving in the development plan the said Survey Plot No. 503 for the aforesaid specified purpose. On 14th March, 1973 notice under section 9 of the Land Acquisition Act had been served upon the Appellants-petitioners inviting claims for compensation. Pursuant to the said notice, a number of persons including the Appellants had lodged claims for compensation for the proposed acquisition of Survey Plot No. 503. Upon inquiry made in the course of hearing of this Appeal we were informed by the Counsel appearing on behalf of the state that in the year 1979 the claimants had been heard by the Land Acquisition Officer. It is not the case of the respondents that any further hearing was given in said land acquisition proceedings to the Appellant or other person interested in the compensation for acquisition of the said plot. On 24th February, 1983 the 2nd Respondent made an award determining the compensation payable for the acquisition of said Survey plot No. 503. Out of the total award of Rs. 6,24,066/-, while the State was awarded Rs. 2,45,10930 p. The present Appellants were awarded a sum of Rs. 3,278/- as compensation in respect of their alleged interest in the Survey Plot No. 503. We understand that on 7th April, 1983 the Appellants made an application under section 18 of the Land Acquisition Act, 1894, for reference to Court. The case of the Appellants was that on 26th May, 1983 a public notice in the Times of India had appeared in respect of the proposed revision of the development plan for Bandra Kurla Complex. Thereupon the Appellants had started making inquiries and had allegedly discovered in June 1883 that the specified public purpose viz. extension of Dharavi purification plant set out in the notification under section 6 of the Land Acquisition Act in respect of plot No. 503 had been abandoned and reservation had been changed in the year 1979. On 9th April, 1979 the Government of Maharashtra had sanctioned modified proposals for Bandra kurla complex prepared by the special planning Authority, the 4th respondent inter alia by deleting the reservation of the Survey Plot No. 503 made in the original development plan finalised on 7th February, 1967. The proposal sanctioned by the state Government on 9th April, 1979 was, inter alia, to the effect that the Sewerage Purification plan at Sion would be discontinued and the same was now proposed to be located in Block A. The Block in which the Survey plot No. 503 was included had been reserved for residential, commercial and semi-commercial use on 4th July, 1983 the present Appellants failed the writ petition which as stated already, has been dismissed by the learned Single Judge.
3. Before we consider the merits of this Appeal, we may record that undisputedly by reason of the planning proposals included in the modified development plan, the Survey Plot No. 503 is no longer to be used for the purpose of extension of Dharavi Sewerage purification plant which was specified in the notification issued under section 126(4) of the Maharashtra Regional and Town planning Act read with section 6 of the Land Acquisition Act. In other words, the particular public purpose for which the declaration under section 6 of the Land Acquisition Act had been made has ceased to exist. Although the learned single Judge has dismissed the writ petition, he has recorded a finding that the Appellants. Petitioners were right when they contended that the original purpose for which the Survey Plot No. 503 was to be acquired could not and in fact did not exist in view of the 1979 plan. In the affidavits filed on behalf of the Respondents in the trial Court several inconsistent and contradictory stands were taken on behalf of the Respondents regarding the proposed future use of Survey Plot No. 503. In his affidavit dated 31st August, 1983, T N Shaldar, Assistant Engineer of the 3rd Respondent had, inter alia, averred that the land acquisition for Dharavi Purification Works would be used for the purpose of housing the employees of the Dharavi Purification Works as it was falling in a residential zone, vide paragraph 3. In paragraph 6 of the same affidavit the deponent reiterated that user for housing the employees of Dharavi Purification Works would be also a public purpose. In paragraph 5 of the affidavit affirmed by A.P. Carneiro on behalf of the 3rd Respondent, a slightly different stand was taken. It was claimed that the 3rd respondent proposed to use the land for the staff quarters of the existing purification works or for housing the person who were dishoused and who were tenants of the Corporation. In the same breath the deponent had stated that these proposals were not yet finalised inasmuch as the revision of the development plan was tentative . The Special Land Acquisition Officer in paragraph 15 of his affidavit affirmed in September 1983 had contended that charge of the proposed use of the Survey Plot No. 503 had no effect on the earlier notification issued on 6th September, 1972. It is unnecessary to lengthen our judgment by referring to the several other affidavits filed on behalf of the respondents wherein also inconsistent stands have been taken by the respondents regarding the proposal for user of the Survey Plot No. 503 after it has ceased to be reserved for the purpose of extension of Dharavi Purification Plant. We may only refer to the extracts from the proceedings of the meeting of the Works Committee of Municipal Corporation held on 10th January, 1986. In reply to a question put by a member of the Committee, the Deputy Municipal Commissioner had, inter alia, replied that there was no proposal for extension or expansion of the existing Sewerage Purification Plant at Dharavi. We may also state that in the planning proposal for Bandra- Kurla Complex provision has been made both for erection of the plant and for residential quarters in Block A. Therefore, in view of the stand taken by the respondents themselves and the statements made in the affidavits, we accept the contention of the appellants that the Survey Plot No. 503 proposed to be no longer used for extension of the existing Purification Plant.
4. Before us no serious effort was made on behalf of the Respondent to dispute the proposition that the public purpose specified in the declaration under Section 6 of the Land Acquisition Act must continue to subsist throughout the proceedings and at least upto the date of making of the award under Section 11 of the Land Acquisition Act. In our view, the Appellants are right in contending that the public purpose specified in a declaration under Section 6 of the Land Acquisition Act not only must be real and not illusory at the date the said declaration is published but the purpose must continue to subsist until the land proposed to be acquired vests in State in terms of section 16 or 17 of the Land Acquisition Act as the case might be. In the event the purpose specified in the declaration under section 6 is altered or it exist there would be no further jurisdiction to continue the proceedings for acquiring for such a non existent purpose. Assuming that the purposes mentioned in the affidavits field on behalf of the respondents in this Court are also within the ambit of the expression "public purpose," the said purposes were distinct and different from the purpose mentioned in the declaration under section 6 of the Land Acquisition Act in respect of Survey No. 503, Dharavi and, therefore it will be a case of acquisition for purpose not mentioned in the declaration under section 6, Mr. Dhanuka, learned Counsel for the appellants, has placed before us several reported decisions which have considered this legal proposition. A Division Bench of the Delhi High Court in (Union of v. Nand Kishor)1, A.I.R. 1982 Del. 462, inter alia, the held that the Government has no right to change the public purpose in midstream. The Government cannot change the original public purpose till the acquisition is complete. After the land has vested in it, the Government has a right to change the use to which it will put the land. Until the acquisition is completed the Government must adhere to the original purpose. If they want to depart from the original purpose, the only course is to start fresh acquisition proceedings. The learned Judges of the Delhi High Court had referred to several reported decisions including the decision in the cases of (Gadadhar v. State of west Bengal)2, A.I.R. 1963 Calcutta 565 and (Suresh Verma v. State of Punjab)3, A.I.R. 1971 Punjab and Haryana 406. We are in entire agreement with the above observation of the Delhi High Court. We are unable to accept the contention that the discontinuance of disappearance of the purpose for which the plot had been reserved in the declaration under section 6 of the Land Acquisition Act had made the further proceedings merely voidable and not void. An award under section 11 of the Land Acquisition Act is a consequential proceeding to the making of a valid declaration under section 6 of the said Act. Therefore, existence of a declaration under section 6 is a condition precedent to making of an award or taking possession. When a declaration under section 6 of the Land Acquisition Act ceases to be valid, neither an award under section 11 of the Act can be lawfully made nor can possession of the plot mentioned in the declaration under section 6 be validly taken under section 16 of the Act. In such a case, taking of possession is not authorised by law. The same cannot result in vesting of the land in the state tree from encumbrance. The learned Single Judge, however, was not very wrong when he observed that the acquisition proceedings cannot be adjudged in the facts of this case to be void ab initio. At the date the declaration under section 6 of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act had been made, there was no apparent infirmity or lacuna, inasmuch as at that point of time no decision had been taken as yet to discontinue the use of the Survey Plot No. 503 for extension of Dharavi Sewerage plant. We have already mentioned that on 9th April, 1979 the Government of Maharashtra had sanctioned the proposal to modify the development plan for Bandra-Kurla Complex, inter alia, by discontinuing the reservation made in the original development plan in respect of Survey plot No. 503 and by shifting the location of the purification plan to Block A. Even it at the time of the making of the declaration under section 6 there was no lack of authority to proceed with the acquisition of the plot, as soon as the State Government had approved the proposal to modify the development plan, the purpose for which the Survey Plot No. 503 had been reserved and specified in the declaration under section 6 of the Land Acquisition Act, ceased to subsist. In other words, the proposal for extension of the sewerage plant to Survey No. 503 became non-existent. In the result, all subsequent proceeding including the proceedings for making of the award under section 11 of the Land Acquisition Act and for taking possession of the land in question became invalid. The Land Acquisition Officer had further jurisdiction to make his award and to take possession in terms of section 16 of the Land Acquisition Act. Only in the event the declaration under section 6 of the Land Acquisition Act continued to be valid and operative, he had authority to perform these acts. The precondition for making an award or for taking possession of the land in question was the continued existence of a valid declaration under section 6 of the Act. We cannot also give any countenance of the contention that the infirmity in question merely made the further land acquisition proceedings irregular and voidable. For the reasons already mentioned, the declaration under section 6 of the Land Acquisition Act having been non est., the authority of the Land Acquisition Officer to continue the proceedings no longer survived. It was a question of not mere exercise of power in an irregular manner or mere error in process. By reason of the declaration under section 6 of the Land Acquisition Act losing its legal force, the jurisdiction to proceed with the acquisition ceased and all further proceedings including making of the award and taking of possession would be void and without jurisdiction. The Act subsequent to the disappearance of the purpose specified in the declaration under section 6 was ultra vires or beyond the jurisdiction and, therefore, invalid and not merely voidable.
5. In our view, the writ petition was not liable to fail on the ground of delay. What have already mentioned that there was nothing on record to indicate that after the Appellants had filed their claims pursuant to the notice under section 9 of the Land Acquisition Act served upon them in the year, 1973, any intimation or notice was actually served by the respondents upon the appellants bringing to their knowledge also that their had been modification of the development plan secondly, the award proceedings were allowed to be kept pending from the year 1973 till 24th February, 1983. Even assuming that the respondents are right in imputing knowledge to the Appellants of the Gazette notification published on 9th April, 1979, there is nothing to show that the respondent had manifested any intention to further proceed with the land acquisition proceedings pursuant to the declaration under section 6 dated 6th September, 1972 in spite of alteration of the purpose specified in the said declaration under section 6. In the event the respondents had at any earlier point of time conveyed to the appellants their intention to proceed with the land acquisition proceeding in spite of the change in the purpose of acquisition, the Appellants could have approached this Court earlier than they did. Therefore, we are unable to subscribe to the view that there was undue delay in finding that writ petition on that the cause of action occurred in the year 1979. The decisions cited on behalf of the respondents do not in fact assist the case of the respondents. These decisions laid down that each case must depend upon its own facts. vide (Girdharan Prasad Missir v. State of Bihar)4 (1980)2 S.C.C. 83 in the instant case, we have said that the Court deciding the question whether the writ petition was a state one may not proceed on the basis of the imputed knowledge but ought to consider whether the appellants we aware of the true facts and secondly whether there had been any lack of diligence on their part. The Court may also legitimately take into consideration whether by reason of lapse of time any equity that had arisen in favour either of the respondents or the parties which ought not to be disturbed in the instant case, by reason of the lapse of time between the year 1979 and the date of filing of the writ petition, on vested eight had accrued in favour either of the respondent or of third parties. The respondents are bound to act in accordance with law and merely pleading delay they cannot without jurisdiction and acquire the plot for a purpose not specified in the declaration under section 6 of the hand Acquisition Act. The award was made in favour of the parties who are all respondents before us. The State itself which has acted illegation and without jurisdiction cannot plead that it should be allowed to retain the sum awarded in its favour by the Land Acquisition Officer. The 5th respondent who described as the owner of the land has conveyed to us that it would submit of the order of the Court. We also record the submission of Mr. Dhanuka, learned Counsel for the appellants that in the event the other awarded who were awarded paltry sums by the award under section 11 of the Land Acquisition Act do not refund sums withdrawn by the appellants are prepared to refund andor deposit the said sums. Therefore, I conclude that on the ground of delay the Appellants could not be deprived of the relief to which they were otherwise entitled.
6. There is no substance in the submission made on behalf of the respondents that in view of the taking of the possession and vesting of the interest of the 5th respondent in terms of section 16 of the Land Acquisition Act, the Appellants are not entitled to maintain the Writ Petition. In the first place, there is nothing on record to show that possession under section 16 was taken from the Appellants who, according to the award under section 11, were tenants of the land and had erected certain structures and for which they were awarded compensation. We have also pointed out that the per-condition for making an award under section 11 and for taking possession under section 16 of the Act is existence of a valid declaration under section 6 of the Land Acquisition Act. In view of our finding that the said declaration under section 6 of the Land Acquisition Act had ceased to be valid, the taking of possession must be also considered to be without lawful authority. Taking of illegal possession cannot have the effect of divesting the right of the appellants in the land in question or to maintain the Writ Petition. It is unnecessary for us to pursue the question whether in the instant case section 91 of the Bombay Municipal Corporation Act has any application or not.
7. We also reject the argument that the appellants-petitioners interest having been extinguished, they were not entitled to any relief under Article 226 of the Constitution of India. The reported decisions upon which the respondents have placed reliance have no application to the facts of this case, inasmuch as in these cases the validity of the declaration under section 6 was not questioned. In fact in the case reported in (Uma Shankar v. State )' , A.I.R. 1978 Allahabad 194, the petitioner had become a tenant long after the section 6 declaration had been made. The learned Counsel for the 3rd respondent contended that if the land acquisition proceedings are now declared illegal and the award is set aside, serious prejudice would be caused to the 3rd respondent. The grounds asserted to substantiate the said claim of prejudice were totally untenable. Making of an award after section 6 declaration had already ceased to be legal and valid cannot be advanced as aground in support of such prejudice. For the same reason, possession take
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n or deposit of compensation were acts which were irrelevant for deciding whether prejudice would be caused if the illegal proceedings are not allowed to be further proceeded with. On the other hand, both the State Government and the Municipal authorities must be considered to be fully aware of the proposals for modification in the development plan, while steps were being taken by them in the proceedings under section 1, of the Land Acquisition Act. It is curious that in spite of having notified the said plan proposals in the year 1979 neither the State Government nor the Municipal authorities had apparently brought to the notice of the Land Acquisition Officer that the purpose for which the land had been reserved in the declaration under section 6 of the hand Acquisition Act had been altered. Therefore, having proceeded illegally with the land acquisition case, the respondents cannot contend that prejudice would be caused to them. 8. We also find without any substance the contention that it was for the Appellants to bring to the notice of the Land Acquisition Officer the modifications in the development plan. In fact it was the duty of the respondents and not of the appellants to take notice of the said facts and to take steps in accordance with law. 9. For the foregoing reasons, we allow this Appeal. We declare that the notification date 6th September, 1972 under section 6 of the Land Acquisition Act read with section 126(2) and (4) of the Maharashtra Regional and Town Planning Act has become inoperative and the land in question cannot be acquired in pursuance of the said declaration under section 6 of the Land Acquisition Act. We set aside and cancel the award under section 11 of the Land Acquisition Act and also all steps taken possession and vesting of the plot in furtherance of the said award. There will be no order as to costs. 10. The order dated 3rd February, 1988 passed by the Division Bench in respect of the Bank guarantee and under takings will continue for eight weeks. After the expiry of this period, the bank guarantee furnished by the appellants shall stand discharged. Appeal allowed.