judgement:
tition (Criminal) Nos. 225 and 513 of 1987.
(Under Article 32 of the Constitution of India).
41 L.K. Pandey for the petitioner in W.P. No.225 of 1987.
M.S. Gupta for the petitioner in W.P. No. 513 of 1987.
Dalveer Bhandari, Ms. A. Subhashini and Mrs. C.K. Sucharita for the Respondents.
The Judgment of the Court was delivered by JAGANNATHASHETTY, J.
The petitioners have been convicted and sentenced by the General Court Martial under the .
They have been lodged in civil jails.
They seek a set off of their pre trial detention against the sentence of imprisonment.
The claim has been made under sec.
428 of the Code of Criminal Procedure ("The Code").
The jail and the army authorities have rejected their claim.
If sec.
428 of the Code of Criminal Procedure is applicable to the case of the petitioners, there is no doubt that they are entitled to get the benefit thereof.
The section provides that where an accused person has, on a conviction, been sentenced to imprisonment for a term (not being imprisonment in default of payment of fine), the period of detention, if any undergone by him during the investigation, inquiry or trial and before the date of such conviction, shall be set off against the term of imprisonment and the liability of such person to undergo imprisonment shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
The period of detention referred to in the section is of the accused person during the investigation, enquiry or trial of the offence against him.
Section 2(h) defines 'investigation ' and sec.
2(g) defines "enquiry".
Both refer to the proceedings under the Code.
In the first place, there is nothing on the record to indicate that the cases against the petitioners were investigated or enquired into under the Code.
Secondly, sec.
5 of the Code provides: "Nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
" 42 The saving provisions in sec.
5 provides that the Code, as such, will not affect (I) any special law, (II) any local law, (III) any special jurisdiction or power and (lV) any special form of procedure, prescribed by any other law for the time being in force.
The is a special enactment applicable to persons covered under sec.
2 thereof.
It also provides special procedure for court martial.
The learned counsel for the petitioner however, submitted that since the petitioners are lodged in the civil prisons, they are entitled to the benefit of sec.
428 of the Code just like any other convict in the jail.
We are unable to agree with this contention.
The petitioners may be entitled to remissions as provided in the jail manuals, but not set off under sec.
428 of the Code.
They have been lodged in the civil prisons by an order made under sec.
169(1) of the .
169(I) provides: " Whenever any sentence of imprisonment is passed under this Act by a court martial or whenever any sentence of death or transportation is commuted to imprisonment, the confirming officer or in case of a summary court martial the officer holding the court or such other officer as may be prescribed, shall, save as otherwise provided in sub sections (3) and (4), direct either that the sentence shall be carried out by confinement in a military prison or that it shall be carried out by confinement in a civil prison.
xx xx xx xx xx xx xx xx xx xx xx xx" Section 167 of the also provides that the term of sentence imposed by a court martial shall be reckoned to commence on the day on which the original proceedings were signed by the presiding officer or by the officer holding the court martial as the case may be.
In view of these provisions in the which is a special enactment containing elaborate procedure for trial of the persons covered thereunder, we do not think that the petitioners could call into aid the provisions of sec.
428 of the Code.
In Bhagwan Singh vs The Asstt.
Superintendent, 119771 , the Pun jab & Haryana High Court said that the benefit of sec.
428 can only be claimed by a person whose case is investigated, inquired into or 43 tried under the Code of Criminal Procedure and it cannot be claimed A by a person convicted and sentenced under the by a courtmartial.
The Delhi High Court in F.R. Jesuratnam vs Chief of Air Staff, [19761 Crl.
L.J. 65 and the Madras High Court in P.P. Chandrasekaran vs Government of India, have also taken the similar view.
But the Kerala High Court in Subramonian vs O.C. Armoured Static Workshop, [1979] Crl.
L.J. 617 has taken a contrary view.
In our opinion, the Kerala High Court cannot be said to have laid down the law correctly.
In the result, these petitions fail and are dismissed.
C S.L. Petitions dismissed.

summary/full:
% The petitioners were convicted and sentenced by the General Court Martial under the and lodged in Civil Jails.
They sought a set off of their pre trial detention against the sentence of imprisonment.
The jail and army authorities rejected their claim.
They moved this Court for relief by writ petitions.
Dismissing the petitions, the Court, ^ HELD: The petitioners have been convicted and sentenced under the .
The is a special enactment containing elaborate procedure for the trial of the persons covered thereunder.
In view of the various provisions in the , the petitioners cannot call into aid section 428 of the Code of Criminal Procedure.
They may be entitled to remissions as provided in the jail manuals but not a set off under sec.
The benefit of section 428 cannot be claimed by a person convicted and sentenced by a Court Martial under the , as held by the Punjab and Haryana High Court in Bhagwan Singh vs The Asstt.
Superintendent, The High Courts of Delhi and Madras have also held likewise.
But in Subramonian vs O.C. Armoured Static Workshop, contrary view has been taken by the Kerala High Court which cannot be said to have laid down the law correctly.
[42G H; 43A C]


judgement:
Civil Appeal No. 3117 of 1984.
From the Judgment and order dated 16.12.1983 of the Madhya Pradesh High Court in Civil Second Appeal No. 166 of 1980.
Dr. Shankar Ghosh, V. Gambhir, section Sarin and S.K. Gambhir for the Appellant.
T.S. Krishnamurti Iyer and Shakil Ahmad Syed for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is directed against the judgment and order of the High Court of Madhya Pradesh in Second Appeal No. 166 of 1980.
By the aforesaid judgment, the High Court has reversed the findings of the first appellate court.
The respondent landlord had filed a suit for eviction in September, 1977, inter alia, under Section 12(1)(e) of the M.P. Accommodation Control Act, 1961 (hereinafter called 'the Act ') alleging that the premises in question was required bona fide for the requirement of the landlord.
It was stated in the written statement filed by the petitioner tenant that the respondent landlord had already in his occupation sufficient accommodation and the same was sufficient to meet his requirement and that the suit was filed in order to extract the higher rent.
The trial court decreed the suit.
The appellant went up in appeal.
The Additional District Judge, Indore which was the first appellate court allowed the appeal of the appellant tenant and set aside the decree passed by the trial 46 court under section 12(1)(e) of the Act.
The first appellate court looked into the evidence and came to the conclusion that the need in respect of suit accommodation was not bonafide one.
It was the case of the landlord that three rooms were in his possession in the ground floor and one tin shed which the landlord was formerly using as a Garage for his car but which was no longer with him.
Landlord was suffering from Harnia and one of the wives was also suffering from Asthama.
After analysing the evidence the First Appellate Court came to the conclusion that the evidence was not such that the plaintiff landlord found it difficult in climbing the stairs and there was no danger of heart attack as he had stated.
So far as the wife 's illness was concerned, this also, the first appellate court did not accept the case on the analysis of the evidence.
It was observed by the first appellate court that the wife of the landlord did not come to the witness box to say that she was suffering from Asthama.
Nor the Doctor who was stated to be the family Doctor affirmed that fact.
It may, however, be mentioned that the landlord himself is a Doctor.
The landlord had stated that six rooms were in his possession and he explained how six rooms were being used and the accommodation with his wife in the ground floor comprises of three rooms; for her residence, kitchen and store and a tin shed for storing fuel etc.
In the aforesaid background the first appellate court came to the conclusion that the requirement of the landlord was not reasonable nor bonafide.
It is a well settled law in this branch that the need of the landlord must be reasonable and must be bona fide in order to evict the tenant on the relevant provisions of the various Acts.
Whether in a particular situation the need was reasonable or bona fide must be judged from the objective view point not merely by assertion or denial of the parties.
The learned Judge of the first appellate court applying the tests which appeared to him to be objective tests found, that such need is not bona fide or reasonable.
He accordingly allowed the appeal and set aside the order of eviction.
The landlord went up in appeal before the High Court in Second Appeal.
The High Court came to the conclusion that the first appellate court had drawn wrong inferences and there was no proper appreciation of facts and furthermore the High Court was of the opinion that all the facts had not been borne in mind by the first appellate court.
The High Court allowed the appeal and set aside the judgment and decree of the first appellate court and restored the order of the trial court and ordered eviction.
47 The tenant has come up here.
It is well settled law that in Second Appeal the scope of interference by the High Court is limited.
This Court in the case of Mattulal vs Radhe Lal, ; had occasion to consider the scope of the Second Appeal under the Madhya Pradesh Act.
There this Court held that the High Court had exceeded its jurisdiction in Second Appeal in reversing the decision of the first appellate court.
This Court further observed that the issues whether the respondent required the shop in question for the purpose of starting new business as a dealer in iron and steel materials, and if so, whether his requirement was bona fide were both questions of fact.
Their determination did not involve the application of any legal principles to the facts established in the evidence.
This Court further held in that case that the findings of the first appellate court on these issues were no doubt inferences from other basic facts, but that did not alter the character of these findings and they remained findings of facts and therefore, the conclusion of the first appellate court that the respondent did not bona fide require a shop premises in that case for the purpose of starting new business as a dealer in iron and steel materials represented findings of facts and could not be interfered with by the High Court in second appeal unless it was shown that in reaching it a mistake of law was committed or that it was based on no evidence or was such as no reasonable man could reach.
(Emphasis supplied).
We are prima facie inclined to take the view that it might have been possible in this case to hold that the High Court was in error in interfering with the findings of the first appellate court but in the facts of this case we need not rest our decision on that basis, because subsequent to the decision of the High Court the first wife of the landlord had died and three rooms which were in her occupation have become vacant.
In that view of the matter and taking into cautious consideration to all the subsequent events it must be held that there was no more bona fide need of the landlord to evict the tenant of the premises in question.
This appeal must, therefore, be allowed and the order of eviction set aside.
The appeal is accordingly allowed.
The parties will bear their own costs.
48 This, however, will not prevent the parties from exchanging their position by mutual arrangements or agreement by the tenant going upstairs in three rooms, now in occupation of the landlord, and the landlord getting three more rooms in the ground floor in the occupation of the tenant.
N.P.V. Appeal allowed.

dataset_name: IN-Abs

summary/full:
% The respondent landlord filed a suit for eviction of the tenant from the suit premises on the ground of bona fide requirement under section 12(1)(e) of the M.P. Accommodation Control Act, 1961.
The appellant tenant contended that the respondent landlord was already in occupation of accommodation sufficient to meet his requirement and that the suit was filed in order to extract higher rent.
The trial court decreed the suit.
The first appellate court, applying the tests which appeared to it to be objective, found that the need in respect of suit accommodation was not a bona fide one and allowed the appeal of the appellant tenant.
E In second appeal by the respondent landlord, the High Court held that the first appellate court had drawn wrong inferences, that there was no proper appreciation of facts and that all the facts had not been borne in mind.
It allowed the appeal, restored the order of the trial court and ordered eviction.
Allowing the appeal, ^ HELD: The need of the landlord must be reasonable and must be bona fide in order to evict the tenant on the relevant provisions of the various Acts.
Whether in a particular situation the need was reasonable or bona fide must be judged from the objective view point, not merely by assertion or denial of the parties.
[46E F] In second appeal, the scope of interference by the High Court is limited.
[47A] Mattulal vs Radhe Lal, ; , relied on.
45 In the instant case, prima facie, it might be possible to hold that the High Court was in error in interfering with the findings of the first appellate court.
But in view of the fact that subsequent to the decision of the High Court, the first wife of the landlord had died and the accommodation which was in her occupation has become vacant, and taking into cautious consideration the subsequent events, it must be held that there was no more bona fide need of the landlord to evict the tenant of the premises in question.
Order of eviction has, therefore, to be set aside.
[47F H]


judgement:
Appeal No. 330 of 1956.
Appeal by special leave from the Judgment and decree dated September 5, 1955, of the Rajasthan High Court in Writ Petition No. 76 of 1954.
A. V. Viswanatha Sastri and Ratnaparkhi A. G., for the appellant.
R. Ganapathy Iyer, Ram Avtar Gupta and T. M. Sen, for the respondent.
November 28.
The following Judgment of the Court was delivered by BOSE J.
This appeal arises out of a writ petition for mandamus under article 226 of the Constitution.
The appellant was a District and Sessions Judge in the former Bikaner State.
He was appointed on January 29, 1948, in the grade of Rs. 500 40 700 and worked as such till April 7, 1949.
On that date a new State of Rajasthan was formed by the integration of a number of States (including the former State of Bikaner) by means of a Covenant signed by the High Contracting Parties.
Article XVI (1) of the Covenant ran thus: " The United State hereby guarantees either the continuance in service of the permanent members of 1015 the public services of the former Rajasthan State and of each of the new Covenanting States on conditions which will not be less advantageous than those on which they were serving on the 1st November 1948 or the payment of reasonable compensation or retirement on proportionate pension.
" The integration necessarily involved a reorganisation of the various services in the several integrating States.
On the judicial side it was found that there were as many as twenty eight Courts of District and Sessions Judges in the aggregate.
In the integrated State it was proposed to have only fifteen.
The reorganisation took time and in the interval certain interim arrangements had to be made.
These arrangements are set out in a Rajasthan Gazette Notification dated May 25, 1950.
We append the relevant extracts: " 4.
In Appendix F. have been indicated the provisional postings on an ad hoc basis of the posts specified in Appendices A to E. . . . . . . . . . . 6.
All the appointments mentioned in the different Appendices, attached to this Order, are provisional.
The emoluments of none of these officers appointed are being affected and they will continue to draw their existing salaries until further orders.
All the appointments are without prejudice to the creation of a Judicial Service in Rajasthan to be formed in accordance with the rules which may be made therefor.
" Appendix F is headed "Ad hoc postings of Judicial Officers to Civil and Sessions Courts.
" The appellant was appointed under this beading in Part 11 as a Civil and Additional Sessions Judge in the Jaipur Division.
But before this Notification was made, namely, on December 9, 1949, the appellant received the following order from the new Rajasthan Government: " Shri Amar Singh, District and Sessions Judge, Churu, is transferred to Ganganagar as District and Sessions Judge, Ganganagar.
" 129 1016 Among other contentions, the appellant relies on this as an election by the new Government to continue 'him in his original post and contends that it could not later change its mind and make his service provisional as it purported to do in the notification just cited.
Two months after the notification, namely on July 31, 1950, the appellant 's increment became due and Government sanctioned it in the following terms: " Sanction is accorded to the grant of a stipulated increment of Rs. 40 p.m. in the scale of Rs. 500 40 700 to Shri Rajvi Amarsingh, District and Sessions Judge in Bikaner Division, with effect from the 23rd March, 1950, thereby raising his salary from Rs. 540 to Rs. 580 p.m." When the final re organisation was brought into force and the twenty eight Courts of District and Sessions Judges reduced to fifteen, the appellant was posted as Civil and Additional Sessions Judge on an ad hoc basis on May 25, 1950.
On September 11, 1950, the appellant made a representation to the Government of Rajasthan against his posting of May 25, 1950, as an ad, hoc Civil and Additional Sessions Judge.
He says in his writ petition to the High Court that " he was given to understand that these ad hoc postings were without prejudice to the claims of the Government servants for a suitable position in the integrated set up on permanent basis.
" This allegation was admitted by the opposite party.
Later, he was appointed substantively as Civil Judge on April 23, 1951.
He was placed in Group C (Civil Judges and Munsiffs) and placed at No. 18 in the list of junior posts.
His pay and emoluments were as before and he retained the same grading, namely Rs. 500 40 700.
His earned increments were not affected and, except for the change in name, his conditions of service were not worse than when he was in the service of the Bikaner State.
We were given the last two facts by his counsel.
They do not appear in the paper book.
All that is to be found there are 1017 references to these orders but the orders themselves have not been included.
Being aggrieved by this, the appellant filed the writ petition out of which this appeal arises on April 3, 1954.
His contention was that under the guarantee given by 'the United State of Rajasthan, and also otherwise, he was entitled to be posted as a District and Sessions Judge in the new set up and that the posting of April 23, 1951, reduced him in rank.
As that was done without affording him an opportunity to show cause, article 311 of the Constitution was violated.
The High Court held that the posting of April 23, 1951, which purports to appoint the appellant substantively as a Civil Judge, is wrong and that it must be treated as an ad hoc appointment till proper appointments are made to the Judicial Service of Rajasthan according to the Constitution of India.
The learned Judges held that as there had been a clear declaration that a new Judicial Service was to be created in Rajasthan and that the existing officers from the various covenanting States were not to be taken into it as a matter of course, it followed that all appointments to it would be by way of fresh recruitment, and, as the Constitution of India was in force at that date, these recruitments must conform to its provisions.
It was admitted before the learned Judges that after the Constitution only the Rajpramukh had power to make rules regulating the recruitment and conditions of service of those appointed to public services and posts in connection with the affairs of the State until provision in that behalf is made by an Act of the Legislature, and it was also admitted that the State Public Service Commission must be consulted.
As this was not done, the learned Judges directed as follows: " The petition is allowed, the postings made by notification dated the 23rd April, 1951, including that of the petitioner as Civil Judge, are declared to be on an ad hoc basis, and a direction is made to the Government to provide a machinery according to the 1018 provisions of the Constitution for the first recruitment to the Rajasthan Judicial Service.
" The judgment was delivered on September 5, 1955, and the appellant thereupon came here and was granted special leave to appeal on April 16, 1956.
In the meanwhile, according to the facts set out in the respondent 's statement of the case, the Rajasthan Government complied with the orders of the High Court, reframed their rules and made fresh appointments in accordance with them.
These were duly published in the Rajasthan Gazette and the appellant was finally selected to the Rajasthan Judicial Service.
He was appointed a Civil Judge.
The Appellant 's contention is that the order of April 23, 1951, reduced him in rank and as he was not afforded an opportunity of showing cause, article 311 of the Constitution was violated.
If this contention is sound, it will follow that the fresh appointment as Civil Judge after the High Court 's order will also be bad for the same reasons.
Now it is well established that when one State is absorbed in another, whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose.
This is nothing more, (though on a more exalted scale), than an application of the principle that underlies the law of Master and Servant when there is a change of masters.
So far as this Court is concerned, the law is settled by the decision in The, State of Madras vs K. M. Rajagopalan (1), which follows the decisions of the Privy Council and the House of Lords in Reilly vs The King (2), and Nokes vs Doncaster Amalgamated Collieries Ltd. (3).
The distinction between rights to property and contractual rights when there is a change of sovereignty was pointed out in Virendra Singh & others vs The State of Uttar Pradesh (4).
(1) ; , 562.
(2) (3) (4) ; , 427.
1019 The appellant founds on article XVI(1) of the Covenant.
It was contended that he cannot rely on this because he was not a party to it but we need not decide this because, even if this be assumed to be the law of the new State settling the conditions of service of those who continue in service, all that it says is that the conditions of their service will not be less advantageous than those on which they were serving on November 1, 1948.
We have shown above that this condition is fulfilled.
But that apart, Article XVI(1) indicates that the old contracts terminate just as they did in The State Of Madras vs K. M. Rajagopalan (1).
In the first place, there were three options: (1) continuance in service, (2) payment of reasonable compensation, and (3) retirement on proportionate pension.
That shows that the old contracts terminated and that those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined.
The only guarantee (assuming that the appellant can avail himself of it) was that the new conditions were not to be less advantageous than those on which the appellant was serving on November 1, 1948.
There was no guarantee that they would be the same or better.
This was emphasised in the Rajasthan Gazette Extraordinary dated June 4, 1949.
It first referred to the broad outlines of the programme of integration that had already been published and then outlined the procedure and principles to be observed in carrying it out.
Paragraph 6 is as follows: "After final orders have been passed by the Government on the Departmental re organisation schemes and cadres and strength for different kinds of establishments in each department are fixed, the heads of departments will prepare gradation lists according to prescribed rules and put up proposals for fixation of each individual Government servant in the posts on permanent, officiating or deputation basis.
(1) ; , 562. 1020 They will also determine the revised rates of pay admissible to each, Gazetted and non Gazetted officer under the new scales etc." and then paragraph 15 " It is not the intention of Government to throw any Government servant out of employ as far as .practicable.
If necessary, services of efficient and deserving staff will be retained temporarily on supernumerary basis in the prospect of finding work for them in connection with new development schemes.
" The order of December 9,1949, on which the appellant relies, transferring him as District and Sessions Judge to the District Court at Ganganagar, must be read subject to the above and, if Article XVI(1) of the Covenant applies, then subject to that as well.
An order of transfer cannot be equated to an order of appointment; and in any case, the new cadres had not been established and the new Courts under the proposed scheme of re organisation had not been constituted, so, anything done at that stage could only have been part and parcel of the temporary transitional arrangements pending the final settlement by the new State of the schemes and conditions of service.
The next set of orders published in the Gazette of May 25, 1950, brings this out clearly.
We have already set out its terms.
The orders of March 25, 1950, and July 31, 1950, sanctioning the increment do not help the appellant.
He is described there as " Shri Rajvi Amarsingh, District and Sessions Judge in Bikaner Division.
" This is merely descriptive as the endorsement on the letter indicates.
It runs " Copy forwarded to (1) Shri Amarsingh, Civil and Addl.
Sessions Judge, Jhunjhunu.
" No determination to post the appellant permanently in a particular cadre and post can be spelled out of these accidental descriptions in orders dealing with a different matter.
Postings to a cadre and engagements of service are not made in this incidental way.
1021 The substantive appointment gazetted on April 23, 1951, after the new cadres and Courts had been fixed, was struck down by the High Court, and the Government of Rajasthan was directed to treat that as an ad hoc appointment.
According to the respondent in its statement of the case, the matter was regularised after the High Court 's decision and the appellant was again appointed a Civil Judge.
If that is so, then this must be regarded as his first substantive appointment in the new State.
But whether this is his first substantive appointment after the integration, or the one of April 23, 1951, no question of reduction in rank can arise and so article 311 is not attracted.
All his previous postings in the new State were purely transitional and temporary; and so far as article XVI(1) of the Covenant is concerned, its guarantee has been fulfilled.
The appeal is dismissed with costs.
Appeal dismissed.

summary/full:
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 S.C.R. 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.


judgement:
Civil Appeal No. 4139 of 1986.
From the Judgment and order dated 18.6.1986 of the Bombay High Court in Appeal No. 874 of 1983.
R.P. Bhatt and D.N. Misra for the Appellant.
25 L.C. Chogale, M.N. Shroff, K.M.M. Khan, R.F. Nariman, R. Karanjawala, Hardeep Singh, Mrs. Manek Karanjawala, S.V. Deshpande, A.S. Bhasme and A.M. 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 i.e. 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 3645.26 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 i.e. 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 i.e. 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 126(1) 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 s.126 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 126(1) 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 i.e. 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 126(1) 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 126(2) 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 i.e. the market value not at the date of the notification under section 4(1) 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 126(1).
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 126(2) 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 Rs.650 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 Rs.650 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 i.e. 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 i.e. 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 126(1) 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.
P.S.S. Appeal dismissed.

summary/full:
% 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, i.e. 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 Rs.650 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 Rs.650 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 126(1) 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] 3.1 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] 3.2 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 consequence.[29A, 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 126(1) 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]


judgement:
Civil Appeal No. 3400 of 1987.
From the Judgment and order dated 23.1.1986 of the Andhra Pradesh High Court in Writ Appeal No. 22 of 1985.
M.K. Ramamurthi, Attar Singh and G.N. Rao for the Appellant.
T.V.S.N. 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 27.5.1984 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 24.2.1977 and practised law till 31.3.1981.
On 1.4.1981 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 27.5.1984 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 (15)(a) 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.
N.P.V. Appeal dismissed.

summary/full:
% The appellant who had enrolled himself as an Advocate on 24.2.77 and practised law till 1.4.81 when he was appointed in the service of the Hindustan Shipyard, an undertaking owned by the Government of India, applied for the post of a District Munsif, in pursuance of an advertisement dated 25.4.84 issued by the respondent No. 1 Andhra Pradesh Public Service Commission for filling up, by direct recruitment, of vacancies reserved for the Scheduled Castes.
His application was rejected by the respondent No. I, as in its opinion, he did not fulfil the necessary qualification fixed under Rule 12 of the Andhra Pradesh State Judicial Service Rules and was, therefore, ineligible for appointment.
The appellant challenged the aforesaid decision before the High Court.
A Single Judge allowed the writ petition and directed the first respondent to consider the appellant 's candidature.
The Letters Patent Appeal filed by the respondent was allowed and the writ petition was dismissed.
In the appeal by special leave, the appellant contended that as he had practised for a requisite period immediately prior to his entering 36 service of Hindustan Shipyard, an undertaking owned by the Government of India, he must be held to be qualified for appointment, that no distinction ought to be made between experience acquired in Government service and the one in any other service, whether public or private in nature, that this discrimination was illegal and ultra vires and that the word "Government" should be deleted from the proviso to Rule 12 so as to save it from the vice of discrimination.
The respondents opposed the appeal on the ground that the appellant was not in Government service.
Dismissing the appeal, ^ HELD: 1.1 There is no doubt that the expression "Government service" mentioned in the proviso to Rule 12 of the Andhra Pradesh State Judicial Service Rules includes service either under the State Government or the Government of India.
Sub rule (15)(a) of 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 State to be recruited directly subject to service conditions mentioned therein.
[39A B] In the instant case, the Hindustan Shipyard, although a fully owned undertaking of the Central Government cannot be equated with the Government or State except for the purpose 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.
The appellant who is in the service of Hindustan Shipyard and is wt serving directly the Union of India cannot take advantage of the proviso.
[38E F] 1.2 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.
[39C D] 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 to Rule 12 must be held to be valid and effective.
[39D E] 37