Case: Municipal Council, Ahmednagar &amp; Another Vs. Shah Hyder Beig &amp; Others

The facts of the matter being singularly singular ought to be adverted to at this juncture3. The facts depict that the writ petition before the High Court was filed on, for setting aside the award dated6 in regard to CTS No. 5761 of Ahmednagar town. Subsequent thereto, however, the writ petition was amended for issuance of a writ of certiorari for quashing and setting aside the notification dated1 issued under Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the Act") read with Section 6 of the Land Acquisition Act, 1894. It is on this petition that the High Court made the rule absolute and directed making over of the vacant possession of the land under acquisition within a period of three months from the date of the judgment as noticed above. The appellants on grant of special leave to appeal are before this Court4. While issuing notice on, this Court was pleased to grant an interim stay of operation of the impugned judgment of the High Court and also directed filing of counter and rejoinder affidavits. It is in terms of this direction of the Court that the matter was taken up for hearing on9 and also today5. Upon however, hearing the submissions on behalf of the parties herein, we do feel it expedient to record that the matter can be dealt with finally on a short ground to wit, the time element. While addressing on behalf of the petitioners herein Mr. Salve, learned Solicitor General severely criticised the judgment of the High Court and contended that the High Court should have taken note of the element of delay in moving the Court. Mr. Salve pointed out that whereas the notice for acquisition was issued in 1971 and the award was passed and possession was taken in the year 1976, the writ petition was filed in the year 1992 i.e. to say after expiry of 21 years from the date of notification and 16 years from the date of making over possession and the award6. Incidentally this point of delay and laches was also raised before the High Court and on this score the High Court relying upon the decision in Abhyankar case (N. L. Abhyankar v. Union of India ( 1995 (1) MLJ 503 ) observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhyankar case ( 1995 (1) MLJ 503 ) stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated"The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay." *7. In the judgment impugned in this appeal the High Court stated"It may be stated that in the instant case Respondent 2 not only failed to take steps even after passing of the award in 1976 but attempted to change the public purpose even thereafter in 1980 and 1993. It can be seen from the discussion of the material placed before the Court by the petitioners that Respondent 2 in fact issued a public notice inviting objections to the modification in the development plan in 1993. The petitioners have in fact when they realised the possibility of Respondent 2 taking steps for changing or modifying the development plan to the extent of their land protested and have in fact lodged their objections on similar grounds which are urged in the writ petition. Therefore, there is a continuity in process without any break on the part of Respondent 2 in changing the public purpose in not giving effect to the purpose for which notification under Section 4(1) of the Act was published by the State Government in exercise of its powers and in consequence in passing of a the award based on such notification. In the given set of circumstances, we feel that the petitioners have had cause of action even after passing of the award in challenging the very initial action on the part of the respondents in acquiring the land. It may be stated that Respondent 2 has not raised the contention of delay and laches in the firsty filed on. It is only in the additionaly on8 and that too in reply to amendment made to the writ petition by the petitioners that for the first time a contention is raised as to the delay and laches in filing the petition. We are afraid, if Respondent 2 is entitled to raise this contention during the course of arguments8. The observations, as above, with due respect to the High Court are based on a certain misconception of facts. While it is true that the plea of limitation ought to be raised at the first available opportunity but that does not mean and imply that the party raising it even during the course of hearing would be barred therefrom. Limitation is a mixed question of law and fact.d claim would not even be entertained by a civil court without there being any opportunity of filing a pleading by the respondents or the defendants in a civil suit. The fact remains that the respondents (sic appellants) herein did in fact agitate the point of limitation during the course of hearing and also had taken the plea in theiry and prior to the commencement of the hearing of the matter. The High Court was thus clearly in error in holding without any further factual detail that the cause of action for the challenge to the notification under the Maharashtra Act of 1966 continues even on the date of filing of the writ petition. Mr. Venugopal, the learned Senior Counsel appearing for the respondents contended that since this is a continuing wrong, the question of the claim beingd or the conduct being barred under the laws of limitation does not and cannot arise. Mr. Venugopal further contended that there are mala fides involved and mala fides ought not to be restricted to be challenged under the garb of limitation9. The High Court has in fact proceeded on the basis of equitable principle as it appeared from the observations of the High Court as set out hereinbelow"In the present case, Respondent 2 has in fact done nothing except pass resolution for modification of the public purpose for which the land was acquired rather than actually make use of the land for which it was acquired or possession of which was taken after passing of the award. On equitable principle the petitioners are entitled to reliefs even if there is delay in filing the writ petition. As a matter of fact, the petitioners have explained the circumstances in which they have invoked the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. Since the petitioners have been successful in establishing the pleas of legal malice as against Respondent 2, we think that the perpetual illegal action which has been causing substantial 1 injustice to the petitioners is required to be remedied by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India in favour of the petitioners. It cannot be overlooked that while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India the High Court may be justified in exercising its powers where justice must appear to have been done and must be done." *10. Incidentally, the contextual facts depict that the respondents did in fact apply for the execution of the award in the year 1995. This aspect of the matter, unfortunately, does not find place even in the amended writ, petition. Significantly, as found from the records one IA was filed in the present SLP being IA No. 1 of 1999 for dismissal of the special leave petition on the ground of suppression of facts by the Municipal Council. But what about the failure to mention the factum of the award in the writ petition ? The factum of initiation of the execution proceedings was suppressed even in the amended writ petition. We are at a loss to find as to who ought to be charged with the guilt of suppression of facts11. The records depict that by reason of the failure to obtain necessary orders from the trial court, a civil revisional application was filed before the High Court wherein the High Court has directed deposit of Rs. 3, 20, 116 by the Municipal Council which sum in fact stands deposited till date. While it is true that the High Court in the said civil revision has directed that further orders as regards the withdrawal of the amount of money can be had only after the disposal of the writ petition, but the factum of presentation of the execution application goes however to suggest that the respondents have in fact accepted the award and wanted its execution

Reasoning:
12. The factual analysis in short therefore, depicts that the notification for acquisition in terms of the Act was issued in 1971, the award was published in regard thereto in 1976 and the writ petition was filed in 1992. During the pendency of the writ petition, the respondent writ petitioners moved an execution application so far as the award is concerned and thereafter moved a further civil revision application before the High Court in 1995these factual details in our view go to negate the observations of the High Court13. It is significant to note that since the year 1952, this particular property which is under acquisition was reserved for a school and playground. In the year 1963 the reservation was further continued and as such, there had not been any development of the plot by any concern since 1952 onwards. Another redeeming feature ought also to be noticed at this juncture, namely, the original writ petitioner being the father of the present respondents sent a notice in 1964 to the Municipal Council to purchase the reserved property or to release the same in favour of the writ petitioner. But there was no assertion of right thereafter and till the issuance of the notification in 1971 and possession being delivered in terms of the award in 197614. The High Court has thus misplaced the factual details and misread the same. It is now ad principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given ay to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of a school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above16. The other owner Shah Hyder Beig, however, did not put forth any claim for any specific amount but claimed only the market value of the land together with 15 per cent solatium and the cost of the building now standing on the land. Incidentally, the other owner is a resident of England and executed a power of attorney in favour of Mohd. Ali Beig to act on his behalf in the proceedings before the authorities and to receive the amount of compensation. The power of attorney stands recorded in England in February 1973. While it is true that the evidence tendered by the respondents during the course of hearing was without prejudice qua the reservation of rights to challenge the same but the factual backdrop in its entirety however in our view does not indicate any challenge to the notice of acquisition