Civil Appeal No 4139 of 1986
From the Judgment and order dated 1861986 of the Bombay High Court in Appeal No 874 of 1983
RP Bhatt and DN Misra for the Appellant
25 LC Chogale MN Shroff KMM Khan RF Nariman R Karanjawala Hardeep Singh Mrs Manek Karanjawala SV Deshpande AS Bhasme and AM Khanwilkar for the Responlents 
The Judgment of the Court was delivered by SEN J
By section 127 the Maharashtra Regional  Town Planning Act 1966 enacts  127
If any land reserved allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act 1894 are not commenced within such period the owner or any person interested in the land may serve notice on the Planning Authority Development Authority or as the case may be Appropriate Authority to that effect and if within six months from the date of the service of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition the reservation allotment or designation shall be deemed to have lapsed and thereupon the land shall be deemed to be released from such reservation allotment or designation and shall become available to the owner for the purpose of development or otherwise permissible in the case of adjacent land under the relevant plan
 The short point involved in this appeal by special leave from a judgment of a Division Bench of the Bombay High Court dated June 18 1986 is whether the period of six months specified in section 127 of the Act is to be reckoned from the date of service of the purchase notice dated July 1 1977 by the owner on the Planning Authority ie the Municipal Corporation of Greater Bombay here or the date on which the requisite information of particulars furnished by the owner
The late Dr Eruchshaw Jamshedji Hakim was the former owner of a double storeyed building situate on land admeasuring 364526 square metres bearing the cadastral survey No 176 of Tardeo Bombay known as Dr Hakimwadi
The property is located at the junction of Falkland Road and Eruchshaw Hakim Road
It 26 consists of several structures housing 24 small scale industries 13 shops on the ground floor and 26 residential tenements on the first floor facing the Falkland Road
On the rear side of this building there are several structures housing about 24 small scale industries
The said Dr Eruchshaw Jamshedji Hakim created a trust in respect of the properties and respondents nos
6 9 ie respondents nos
4 7 in the High Court herein described as such are the present trustees appointed under the deed
The Planning Authority published a draft Development Plan in respect of D  ward where the property in dispute is situate
In the Development Plan property of Dr Eruchshaw Jamshedji Hakim was reserved for a recreation ground
The Development Plan was finalised and sanctioned by the State Government on January 6 1967
The final development scheme came into effect from February 7 1967 and thereunder the land was again reserved for recreation ground
No action having been taken for acquisition of the land until January 1 1977 the owners thereof ie the trustees served a purchase notice dated July 1 1977 on the Commissioner for Municipal Corporation of Greater Bombay either to acquire the same or release it from acquisition and the same was received on July 4 1977
On July 28 1977 the Corporation s Executive Engineer wrote to respondents nos
4 7 and asked for information regarding the ownership of the land and the particulars of the tenants thereof
The letter stated that the relevant date under section 127 of the Act would be the date upon which this information was received
The trustees for the time being the landlords of the property known as Hakimwadi by their lawyer s letter dated August 3 1977 conveyed that the date of six months stipulated by section 127 of the Act has to be computed from the date of the receipt from them of the information required
Further they stated that as the Planning Authority for Greater Bombay was the Municipal Corporation of Greater Bombay it had p access to all the relevant records including the records pertaining to cadastral survey No 176
It was also appointed out that the Corporation had been assessing them to property tax in respect of the said property and issuing bills and receipts therefor and could not now question their title to ownership of the property
It was further said that as regards the number of tenants the inspection registers maintained by the Corporation s Assessment Department upon which the assessment of the rateable value of the various tenements was based bear ample testimony
It was next stated that the property was partly residential partly commercial and partly meant for storage
The trustees went on to say that they were not aware of any rule framed under the Act whereby the Planning 27 Authority could make an inquiry at that stage without taking a decision on the material question and thereby attempt to extend the time limit of six months stipulated in section 127
The said letter was received by the Executive Engineer on August 16 1977 and presumably the information required was furnished on August 16 1977
The Executive Engineer wrote to respondents nos
4 7 stating that the period of six months allowed by section 127 of the Act would accordingly commence on August 4 1977 the date when the requisite information was furnished
Next the Executive Engineer by his letter dated November 2 1977 intimated respondents nos
4 7 that the Municipal Corporation had accorded sanction to initiate acquisition proceedings in respect of the property in question under the Land Acquisition Act
Thereafter the Corporation passed a resolution dated January 10 1978 for the acquisition of the land and made an application to the State Government dated January 31 1978 for taking necessary steps
The State Government being satisfied that the land was required for a public purpose issued the requisite notification dated April 7 1978 under section 6 of the Land Acquisition Act 1894 for acquisition of the land
On July 17 1978 respondent No 1 Dr Hakimwadi Tenants Association filed a petition in the High Court under article 226 of the Constitution for quashing the impugned notification
A learned Single Judge Pendse J by his judgment dated September 21 1983 allowed the writ petition on the ground that the Planning Authority having taken no steps for acquisition of land under section 1261 of the Act read with section 6 of the Land Acquisition Act within 10 years from the date on which the final Development Plan came into force the acquisition proceedings commenced by the State Government under sub section
2 of section 126 at the instance of the Planning Authority were not valid inasmuch as the issuance of the impugned notification under section 6 of the Land Acquisition Act for the reservation of the property under the final Development Plan for a recreation ground was not within the period of six months as required under section 127
According to the learned Single Judge the period of six months prescribed under section 127 of the Act begin to run on the date of service of the purchase notice on the Corporation and therefore the Corporation had to take steps to acquire the property before January 4 1978
The Corporation not having taken any steps till the expiry of the period of six months the resolution dated January 10 1978 passed to acquire the property and the consequent notification dated April 7 1978 were invalid and of no legal consequence In other words he held that the commencement of the statutory period of six months was not dependent upon the directions issued by the officers 28 of the Planning Authority nor could the officers extend the period fixed under section 127
As regards the practice prevalent in the Corporation to compute the period of six months from the date of receipt of the information sought he held that it was wholly unwarranted and entirely illegal
He accordingly struck down the impugned notification under section 6 of the Land Acquisition Act and declared that the reservation of the land under the Development Plan had lapsed and it was open to the tenants of the property to claim that due to the lapse of reservation the Planning Authority and the State Government had no jurisdiction to acquire the land in exercise of the powers under s126 of the Act
Aggrieved the appellant carried an appeal to a Division Bench under section 15 of the Letters Patent
Bharucha J speaking for himself and Desai J upheld the view of the learned Single Judge and held that the most crucial step was the application to be made by the Corporation to the State Government under section 1261 of the Act for acquisition of the land it ought to have been taken within the period of six months commencing from July 4 1977 the date of service of the purchase notice
That decision proceeds upon the view that the details of ownership or particulars of tenants are not required to be furnished in the purchase notice served by the owner or any person interested in the land
All that is required is that the owner or the person interested in the land must inform the authority that the land reserved for any plan under the Act had not been acquired by agreement within 10 years from the date on which the plan came into force and that proceedings for acquisition of such land under the Land Acquisition Act had not been commenced within that period
It was accordingly held that the purchase notice dated July 1 1977 served by respondents nos
4 7 the trustees was a valid notice under section 127 of the Act and therefore the period of six months specified in section 127 commenced running from July 4 1977 the date of service and came to an end on January 4 1978
That being so it was held that upon the expiry of the period of six months on January 3 1978 the reservation of the land for recreation ground lapsed and it was released from such reservation
According to the plain reading of section 127 of the Act it is manifest that the question whether the reservation has lapsed due to the failure of the Planning Authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by section 126 is a mixed question of fact and law
It would therefore be difficult if not well nigh impossible to lay down a rule 29 of universal application
It cannot be posited that the period of six months would necessarily begin to run from the date of service of a purchase notice under section 127 of the Act
The condition pre requisite for the running of time under section 127 is the service of a valid purchase notice
It is needless to stress that the Corporation must prima facie be satisfied that the notice served was by the owner of the affected land or any person interested in the land
But at the same time section 127 of the Act does not contemplate an investigation into title by the officers of the Planning Authority nor can the officers prevent the running of time if there is a valid notice
Viewed in that perspective the High Court rightly held that the Executive Engineer of the Municipal Corporation was not justified in addressing the letter dated July 29 1977 by which he required respondents nos
4 7 the trustees to furnish information regarding their title and ownership and also to furnish particulars of the tenants the nature and user of the tenements and the total area occupied by them at present
The Corporation had the requisite information in their records
The High Court was therefore right in reaching the conclusion that it did
In the present case the Planning Authority was the Municipal Corporation of Greater Bombay
It cannot be doubted that the Municipal Corporation has access to all land records including the records pertaining to cadastral survey No 176 of Tardeo
We are inclined to the view that the aforesaid letter dated July 28 1977 addressed by the Executive Engineer was just as attempt to prevent the running of time and was of little or no consequence
As was rightly pointed out by respondents nos
4 7 in their reply dated August 3 1977 there was no question of the period of six months being reckoned from the date of the receipt from them of the information requisitioned
The Municipal Corporation had been assessing the trust properties to property tax and issuing periodic bills and receipts therefor and obviously could not question the title or ownership of the trust
We are informed that the building being situate on Falkland Road the occupants are mostly dancing girls and this is in the knowledge of the Corporation authorities
The rateable value of each tenement would also be known by an inspection of the assessment registers
We must accordingly uphold the finding arrived at by the High Court that the appellant having failed to take any steps namely of making an application to the State Government for acquiring the land under the Land Acquisition Act within a period of six months from the date of service of the purchase notice the impugned notification issued by the State Government under section 6 of the Land Acquisition Act making the requisite declaration that such land was required for a public purpose ie for a recreation ground was invalid null and void
30 While the contention of learned counsel appearing for the appellant that the words six months from the date of service of such notice  in section 127 of the Act were not susceptible of a literal construction must be accepted it must be borne in mind that the period of six months provided by section 127 upon the expiry of which the reservation of the land under a Development Plan lapses is a valuable safeguard to the citizen against arbitrary and irrational executive action
Section 127 of the Act is a fetter upon the power of eminent domain
By enacting section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual
An analysis of section 126 would reveal that after 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 therein the Planning Authority Development Authority or as the case may be any Appropriate Authority may except as provided in section 113A at any time acquire the land either by agreement or make an application to the State Government for acquisition of such land under the Land Acquisition Act 1894
Sub section
2 thereof provides that the State Government may on receipt of the applications contemplated by section 1261 or if the Government except in cases falling under section 49 and except as provided in section 113A is itself of opinion that any land included in any such plan is needed for any public purpose it may make a declaration to that effect in the final gazette in the manner provided in section 6 of the Land Acquisition Act in respect of the said land
The rule is subject to an exception
Proviso to section 1262 interdicts that no such declaration shall be made after the expiry of three years from the date of publication of the draft regional plan development plan or any other plan
Sub section
3 deals with the procedure to be followed for acquisition of the land covered by a declaration under section 6 of the p Land Acquisition Act
Sub section
4 is of some relevance and reads as follows 4
If a declaration is not made within the period referred to in sub section 2 or having been made the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning Amendment Act 1970 the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act 1894 in the manner provided by sub sections 2 and 3 of this section subject to the modification that the market value of the land shall be market value at the date of declaration in the official Gazette made for acquiring the land afresh
 31 The conjoint effect of sub sections
 1 2 and 4 of section 126 is that if no declaration is made within the period referred to in sub section
2 that is to say before the expiry of three years from the date of publication of the draft regional plan development plan or any other plan the compensation payable to the owner of the land for such acquisition in that event shall be the market value on the date of the fresh declaration under section 6 of the Land Acquisition Act ie the market value not at the date of the notification under section 41 of the Land Acquisition Act but the market value at the date of declaration under section 6
That is one of the safeguards provided under the Act
Another safeguard provided is the one under section 127 of the Act
It cannot be laid down as an abstract proposition that the period of six months would always begin to run from the date of service of notice
The Corporation is entitled to be satisfied that the purchase notice under section 127 of the Act has been served by the owner or any person interested in the land
If there is no such notice by the owner or any person there is no question of the reservation allotment or designation of the land under a development plan of having lapsed
It a fortiori follows that in the absence of a valid notice under section 127 there is no question of the land becoming available to the owner for the purpose of development or otherwise
In the present case these considerations do not arise
We must hold in agreement with the High Court that the purchase notice dated July 1 1977 served by respondents nos
4 7 was valid notice and therefore the failure of the appellant to take any steps for the acquisition of the land within the period of six months therefrom the reservation of the land in the Development Plan for a recreation ground lapsed and consequently the impugned notification dated April 7 1978 under section 6 of the Land Acquisition Act issued by the State Government must be struck down as a nullity
Section 127 of the Act is a part of the law for acquisition of lands required for public purposes namely for implementation of schemes of town planning
The statutory bar created by section 127 providing that reservation of land under a development scheme shall lapse if no steps are taken for acquisition of land within a period of six months from the date of service of the purchase notice is an integral part of the machinery created by which acquisition of land takes place
The word aforesaid  in the collocation of the words no steps as aforesaid are commenced for its acquisition  obviously refer to the steps contemplated by section 1261
The effect of a declaration by the State Government under sub section
2 thereof if it is satisfied that the 32 land is required for the implementation of a regional plan development plan or any other town planning scheme followed by the requisite declaration to that effect in the official gazette in the manner provided by section 6 of the Land Acquisition Act is to freeze the prices of the lands affected
The Act lays down the principles of fixation by providing firstly by the proviso to section 1262 that no such declaration under sub section
2 shall be made after the expiry of three years from the date of publication of the draft regional plan development plan or any other plan secondly by enacting sub section
4 of section 126 that if a declaration is not made within the period referred to in sub section
2 the State Government may make a fresh declaration but in that event the market value of the land shall be the market value at the date of the declaration under section 6 and not the market value at the date of the notification under section 4 and thirdly by section 127 that if any land reserved allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period such land shall be deemed to be released from such reservation allotment or designation and become available to the owner for the purpose of development on the failure of the Appropriate Authority to initiate any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land
It cannot be doubted that a period of 10 years is long enough
The Development or the Planning Authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise the compensation paid for the acquisition would be wholly illusory
Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed
There still remain the other two points raised namely i There was waiver or abandonment of right by respondents nos
4 7 the trustees to question the validity of the acquisition proceedings and ii There was inordinate delay or laches on the part of respondent No 1 which disentitled it to grant of relief under article 226 of the Constitution
We find it difficult to give effect to these contentions
In order to deal with these questions a few facts are to be stated
The Executive Engineer of the Municipal Corporation by his letter dated November 2 1977 addressed to the lawyer acting on be 33 half of respondents nos
4 7 the trustees to inquire whether they were prepared to sell the property in question situate at Cadastral Survey No 176 of Taradeo
In response thereto respondents nos
4 7 through their lawyer s reply dated November 18 1977 intimated that they were prepared to consider the sale of the property in its existing condition with all the structures tenanted or otherwise at an overall rate of Rs650 per square metre
This response was without prejudice and they expressly stated that the offer was made without admitting the power and authority of the appellant to acquire the land or to initiate the proceedings for acquisition
Instead of accepting the same the Executive Engineer by his letter dated January 11 1978 wanted respondents nos
4 7 to disclose the basis upon which they claimed price at the rate of Rs650 per square metre
While keeping respondents nos
4 7 in suspense the Municipal Corporation had in the meanwhile on January 10 1978 passed a Resolution that necessary steps be taken to move the State Government for acquisition of the land and thereafter actually moved the Government by their letter dated January 31 1978 to make the requisite declaration under section 6 of the Land Acquisition Act 1894 ie the property in question was needed for public purpose viz a recreation ground under the Development Plan
The State Government accordingly on April 7 1978 on being satisfied that the property was needed issued the requisite impugned notification under section 6 of the Act
Thereafter the Special Land Acquisition officer on January 18 1979 issued a general notice under section 9 of the Land Acquisition Act and the same was published at the site and also issued individual notices to the persons interested
The hearing was fixed for February 26 1979
On February 22 1979 ie four days before the hearing some of the tenants approached the Special Land Acquisition officer and applied for three months  adjournment and accordingly the bearing was adjourned to April 24 1979
However no claims for compensation were filed
Nobody remained present at the hearing
Accordingly the Special Land Acquisition officer was constrained to issue fresh notices under section 9 on May 25 1981
Thereafter the Municipal Corporation on the date fixed applied to the Special Land Acquisition officer to keep the proceedings in abeyance at the behest of some of the tenants who had applied to the Corporation for three months  time
In the circumstances respondents nos
4 7 moved the High Court under article 226 of the Constitution for a writ in the nature of mandamus requiring the Special Land Acquisition officer to make an award
On January 20 1981 the learned Government Advocate gave an undertaking before the High Court that the Special Land Acquisition officer would declare the award within a period of six months 34 and make payment of compensation within eight months
In view of this the High Court dismissed the writ petition as not pressed
On these facts it cannot be said that there was any waiver or abandonment of rights by respondents nos
In order to constitute waiver there must be voluntary and intentional relinquishment of a right
The essence of a waiver is an estoppel and where there is no estoppel there is no waiver
Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case
In the present case respondents nos
4 7 had without admitting that the appellant had the authority or power to initiate the proceedings for acquisition signified their willingness to sell the property subject to certain terms
But the appellant did not accept the offer
On the contrary the appellant took further steps for the acquisition of the land by moving the State Government under section 1261 of the Act to initiate acquisition proceedings by the issuance of a notification under section 6 of the land Acquisition Act
In view of this it cannot be said that the conduct of respondents nos
4 7 was such as warrants an inference of relinquishment by a known existing legal right
There is no question of estoppel waiver or abandonment
There is no specific plea of waiver acquiescence or estoppel much less a plea of abandonment of right
That apart the question of waiver really does not arise in the case
Admittedly the tenants were not parties to the earlier proceedings
There is therefore no question of waiver of rights by respondents nos
4 7 not would this disentitle the tenants from maintaining the writ petition
The objection that there was undue delay in moving the High Court cannot prevail
The reservation has lapsed acquisition upon such reservation is bad and the delay in filing the petition such as it is can make no difference to this position in law
In the result the appeal fails and is dismissed with costs
PSS Appeal dismissed


Summary:
The appellant was a District and Session judge in the State of Bikaner and after its merger in the new State of Rajasthan on August 7 1949 continued to serve in the new State
The covenant of intergration provided inter alia that the conditions of such service were to be no less advantageous than those under which he was working on November 1 1948
By a Gazette Notification the appellant was appointed as an ad hoc Civil and Additional Sessions judge
After the reorganisation of the Services he was substantively appointed as a Civil judge and placed in grade C Civil judges and Munsiffs and placed at No 18 in the list of juniors but his old pay and emoluments remained as guaranteed
Before such appointment he was however described in certain orders of transfer and increments of pay as District and Sessions judge
The appellant moved the High Court under article 226 of the Constitution and contended that he had been reduced in rank without being afforded an opportunity to show cause under article 311 of the Constitution
The High Court held that the appointment must be treated as an ad hoc appointment till it was regularised under the Constitution
This was done by the Government after the decision of the High Court and the appellant was again appointed as a Civil Judge 1014 Held that it is well settled that when a State is by merger integrated to form a new State all contracts of service between the prior Government and its servants automatically came to an end and those who elect to serve in the new State or are taken in by it serve on such terms and conditions as the new State may choose to impose
The State of Madras vs K M Rajagopalan 1955 2 SCR 541 relied on
Virendra Singh  Others vs The State of Uttar Pradesh   referred to
As the appellant s postings in the new State previous to his substantive appointment were all transitional and temporary in character and the guarantee given by the covenant was fulfilled no question of reduction in rank arose so as to attract Art 311 Of the Constitution
No inference of any determination by the new Government to appoint the appellant in his old post could follow from the descriptions made in the orders of transfer and increments of pay as appointments are not made in that casual way