Civil Appeal No 3400 of 1987
From the Judgment and order dated 2311986 of the Andhra Pradesh High Court in Writ Appeal No 22 of 1985
MK Ramamurthi Attar Singh and GN Rao for the Appellant
TVSN Chari for the Respondents
The Judgment of the Court was delivered by SHARMA J
The appellant s application for appointment as a District Munsif by the State of Andhra Pradesh in the quota reserved for Scheduled Castes was rejected by the Andhra Pradesh Public Service Commission briefly described as the Commission  respondent No 1 which the appellant challenged before the Andhra Pradesh High Court by a writ petition
The learned Single Judge allowed the prayer and directed the first respondent to consider the candidature of the appellant for the appointment in question
The respondents challenged the decision under Clause 15 of the Letters Patent in the High Court in Writ Appeal No 22 of 1985
The appeal was allowed and the writ petition was dismissed
We have granted leave under Article 136 of the Constitution allowing the appellant to appeal against the said decision
The appointment of District Munsifs is regulated by Andhra Pradesh State Judicial Service Rules hereinafter referred to as the Rules
In response to an advertisement issued by the Commission  for filling up a large number of vacancies of District Munsifs by direct recruitment the appellant applied
Subsequently a second advertisement was issued on 2751984 with reference to vacancies reserved for Scheduled Castes and the appellant made a second application
His present claim is with respect to these reserved posts
After passing the Law Examination the appellant got himself enrolled as an Advocate on the rolls of the State Bar Council on 2421977 and practised law till 3131981
On 141981 he was appointed in the service of Hindustan Shipyard an undertaking owned by the Government of India and claims to have remained in charge of the legal cell
As stated earlier he applied in pursuance of the second advertisement dated 2751984 notified by the Commission 38 In the opinion of the Commission  the appellant did not fulfil the necessary qualification fixed under the Rules and was therefore ineligible for appointment
The Rules have laid down three modes for appointment namely by direct recruitment by promotion and by transfer
Rule 12 requires inter alia as an essential qualification for a candidate for appointment as a District Munsif that he should be in actual practice and should have been so engaged for not less than 3 years in a court of civil or criminal jurisdiction
Since the appellant was not in actual law practice reliance has been placed on his behalf on the Proviso tc the aforementioned Rule which is quoted below Provided that in the case of a person who is already in Government service and who applied for appointment to the post of District Munsif by direct recruitment he must have actually practised for a period of not less than 3 years immediately prior to the date of his entering the Government service
It is contended that as the appellant had practised for a requisite period immediately prior to the date of his entering the service of Hindustan shipyard he must be held to be qualified for appointment
The appellant s claim is being refuted by the respondents on the ground that he was not in Government service
The stand of the respondents appears to be well founded
The Hindustan Shipyard although a fully owned undertaking of the Central Government cannot be equated with the Government or State except for the purposes of Part III of the Constitution
The undertaking has a separate legal entity
The expression State does not by reason of Article 12 of the Constitution include the undertaking except for the limited purpose which is not attracted in the present case
Mr Ramamurthy the learned counsel for the appellant appreciating this position contended that the word Government 
should be deleted from the Proviso mentioned above so as to save it from the vice of discrimination
The argument is that no distinction ought to be made between the experience which a candidate acquires in Government service and the experience one acquires in any other service whether public or private in nature
The learned counsel urged that it is true that the appellant cannot claim to be qualified on the strength of the Proviso as it stands now but to save it from being struck down as illegal the Court should omit the word Government 
There is no doubt that the expression Government service mentioned in the Proviso includes service either under the State Government or the Government of India
Sub rule 15a of the definition Rule 2 explains that the expression recruited direct would refer to a candidate including a person in the service of Government of India or the Government of a State to be recruited directly subject to certain conditions mentioned therein
The learned counsel for the respondents therefore rightly said that a servant under the Government of India must be included within the scope of the Proviso
Mr Ramamurthy learned counsel for the appellant fairly conceded that the appellant who is in the service of Hindustan Shipyard and is not serving directly the Union of India cannot take advantage of the Proviso if the same as it stands is held to be legally valid
The attack is on its vires on the ground of illegal discrimination
We do not find any merit in this submission
What is forbidden by the Constitution is discrimination between persons who are substantially in similar circumstances or conditions
An equal treatment does not arise as between persons governed by different conditions and different sets of circumstances
It is obviously permissible to classify persons into groups and such groups may be differently treated if there is a reasonable basis for such difference or distinction
Having regard to the difference in the nature of service under the Government and that of the other services therefore a classification based on that line cannot be struck down on the ground of illegal discrimination
The Proviso in question must be held to be valid and effective 8
The High Court in the writ appeal while upholding the Proviso has interpreted it differently which does not appear to be correct
However since the learned counsel for the respondents while defending the decision whereby the appellant s writ application was rejected has stated that the interpretation put by the Division Bench was not correct and he does not support it it is not necessary to consider that aspect in detail
In view of our finding in paragraph 7 above upholding the validity of the Proviso as it is the appellant must fail
Before closing however we would like to point out that the appellant cannot succeed even if the enabling provision in the Proviso relaxing the qualification clause of Rule 12 is held to be ultra vires
Besides we have serious doubt whether a court can reframe a rule and give effect to it as suggested on behalf of the appellant but we do not consider it necessary to deal with this aspect any further
In the result the appeal fails and is dismissed but in the circumstances without costs
NPV Appeal dismissed


Summary:
 Section 127 of the Maharashtra Regional and Town Planning Act 1966 provides that if any land reserved under the Act was not acquired by agreement within ten years from the date on which a final regional plan or final development plan came into force or if proceedings for the acquisition of such land under that Act or under the Land Acquisition Act 1894 were not commenced within such period the owner or any person interested in the land may serve notice on the appropriate authority to that effect and if within six months from the date of the service of such notice the land was not acquired or no steps as aforesaid were commenced for its acquisition the reservation should be deemed to have lapsed
The Planning Authority the Municipal Corporation of Greater Bombay published a draft development plan reserving the land in dispute for a recreation ground
The said plan was finalised and sanctioned by the State Government on January 6 1967
It 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 the trustees of the land served a notice dated July 1 1977 on the Commissioner for Municipal Corporation either to acquire the land or release it from acquisition
The same was received by the latter on July 4 1977
On July 28 1977 the Corporation s Executive Engineer asked for information regarding the ownership of the land and the particulars of the tenants thereof from trustees respondents Nos 4 7 and stated that the relevant date under section 127 cf the Act would be the date 22 upon which this information was received
The trustees by their lawyer s letter dated August 3 1977 conveyed that the period of six months stipulated by section 127 has to be computed from the date of the receipt of the purchase notice by the Corporation ie July 4 1977 and stated that the Corporation had access to all the relevant records
The requisite information was also provided therein
The Executive Engineer wrote stating that the period of six months allowed by section 127 of the Act would commence on August 4 1977 the date when the requisite information was furnished
Thereafter the Executive Engineer by his letter dated November 2 1977 inquired of the trustees whether they were prepared to sell the property in question to which the trustees quoted an overall rate of Rs650 per square metre through their lawyer s reply dated November 18 1977
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 asked the respondents to disclose the basis for the rate of Rs650 per sq
metre
The Corporation had in the meanwhile passed a resolution on 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 issued the requisite notification dated April 7 1978 under section 6 of the Land Acquisition Act 1894 for acquisition of land
On July 17 1978 respondent No 1 the tenants  association filed a petition in the High Court under article 226 of the Constitution for quashing the impugned notification
The High Court 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 within the period of six months commencing from July 4 1977 the date of service of the purchase notice and that upon the expiry of the said period on January 3 1978 the reservation of the land had lapsed and it was released from such reservation
It took the view that all that was required was 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 ten years from the date on which plan came into force and the proceedings for acquisition of such land under the Land Acquisition Act had not been commenced within that period
Consequently it struck down the impugned notification as invalid null and void
In the appeal to this Court by special leave it was contended that there was waiver or abandonment of right by respondents Nos 4 7 23 the trustees to question the validity of the acquisition proceedings and that 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
Dismissing the appeal  HELD 1
Section 127 of the Maharashtra Regional and Town Planning Act 1966 is a fetter upon the power of eminent domain
By enacting it the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual
30B C 2
The condition pre requisite for the running of time under 127 of the Act is the service of a valid purchase notice
In the instant case the purchase notice dated July 1 1977 was a valid notice
The appellant having failed to take any steps for acquisition of the land within a period of six months therefrom the reservation of the land in the development plan for a public purpose lapsed and consequently the impugned notification dated April 7 1978 issued by the State Government under section 6 of the Land Acquisition Act must be struck down as a nullity
29A B 31D F 31 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 127 is a mixed question of fact and law
A rule of universal application cannot therefore be laid down
28G H In the instant case the High Court found that the planning authority had failed to acquire the land reserved for the plan under the Act by agreement within ten years from the date on which the plan came into force and proceedings for acquisition of the land under the Land Acquisition Act had not been commenced within the period of six months from the receipt of notice from respondents Nos 4 to 7 the trustees
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
Accordingly it 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
28E 29F 28B 32 There was no question of the period of six months being 24 reckoned from the date of receipt from respondents of the information requisitioned
Section 127 of the Act does not contemplate an investigation into the title by the officers of the Planning Authority nor can the officers prevent the running of time if there is a valid notice
The Executive Engineer of the appellant Corporation was not justified in addressing the letter dated July 28 1977 calling upon respondents 13 Nos
4 7 the trustees to furnish information regarding their title and ownership and also to furnish particulars of the tenants the nature of user of the tenements and the total area occupied by them
The Corporation had the requisite information in their records
The Planning Authority was the Municipal Corporation
The said letter was therefore just an attempt to prevent the running of time and was of little or no consequence29A B E 4
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
34B In the instant 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
It cannot therefore be said that the conduct of respondents Nos 4 7 was such as warrants an inference of relinquishment of a known existing legal right
34B D 5
The tenants were not parties to the earlier proceedings
They were therefore not disentitled from maintaining the writ petition
The objection that there was undue delay in moving the High Court cannot prevail
34E F