Shah Hyder Beig and Others Vs. the State of Maharashtra and Others - Court Judgment

Excerpt:
a) in a chequered history of land from 1939 father of the petitioner took possession of land in 1944 and then proposed to be reserved for development in 1952, 1963 and for the third time in 1971 - the acquisition done for public school and play ground in 1976 but there was no development till 1992 and the attempt was made to change public purpose in 1993 to raise the office building - the objection to the same was rejected but purpose could not materialize as there were no funds - it was held that since the actions was not for the purpose for which land was acquired, showed the malafide intention of the authorities to harass the petitioners - therefore it was directed that the land was to be restored to the petitioners, free of encroachments. ; b) the petitioner fought for the attempt of government and municipal authorities to acquire the land for the purposes of municipal school and play ground and was taken over actually on 1976 but was kept vacant till the date - the petition filed in 1992 was opposed on the ground of delay and latches - it was held that in the given circumstances there was continued cause of action and the petitioner could challenge the initial action of acquisition itself. - - 2 in the high court and, although it was unsuccessful in the said appeal, it never handed over possession of the property to the father of the petitioners till 1944-45. all the times the respondent no. 2 tried its level best not to allow the father of the petitioners to enjoy the property but ultimately possession of the property was obtained in the year 1946. it is submitted by the petitioners that after that, the second reservation in the year 1963, was made but it was lapsed. 2 was bent upon not to allow him to enjoy the same but on the other hand, took such a drastic step to deprive him from the enjoyment of the property. it is submitted that the petitioners have pointed out that there was no bona fide intention to acquire the property of the petitioners but the action was clearly mala fide. it is submitted that the petitioners' father was never allowed to enjoy the property due to whims of the respondent no. it is stated by the petitioners that their father who has been unsuccessfully fighting the litigation with the respondents and who has been harassed from enjoying the fruits of the soil died because of the harassment meted out to him during his life-time. it is submitted that the acts of commissions and omissions on the part of the respondents are encircled by a firm ring of mala fide intention and colorable exercise of powers and is clearly violative of articles 19 and 21 of the constitution of india. it is submitted that this is nothing but an exceptional case and rarest among rare cases, wherein even after having taken possession of the land more than 16 year back nothing concrete was done. the plans were sanctioned by the deputy director of town planning, nasik, vide his letter dated 13-9-1989. thereafter, considering the basic need and to provide better facilities for education the municipal council again submitted a revised plan for minor modification in the purpose of constructing school building with more additional facilities. it is also stated that it is not correct to say that the respondents have not exercised powers reasonably and acted in good faith. that stand was, however, failed in appeal preferred by the father of the petitioners being appeal no. 2, however, did not take steps till the father of the petitioners gave purchase notice under the provisions of the bombay town planning act, 1954. this fact is clearly admitted not only by the respondent no. it has been clearly stated in the affidavit in reply and the correspondence that there are several schools in the area where the land is situated and therefore, there was no need for opening the additional primary school in the said area. in this context, reference may be made to the resolution of the municipal council dated 6-9-1976, wherein, it was clearly pointed out that there are several schools at site and, therefore, there was no need to construct the school building and playground in the land in question. this persistent attempt of the municipal council, in changing the purpose is a strong circumstance which supports the grievance of the petitioners. it was also pointed out that since 1963 till 1988 though the development plan was sanctioned and revised no steps were taken within 10 years but the planning authority failed to revise the same till 1988. therefore, the development plan is not in existence and there is no question of revision of the development plan. 25. there is further strong circumstance which is relevant to be mentioned herein. failure to furnish any explanation by the respondent no. 2 were really interested to discharge their obligations to render educational facilities to the children at the costs of the tax payers in the locality they would not have failed in discharging those obligations for a period of more then 25 years. the aforesaid circumstances clearly show that there was in fact no intention on the part of the municipal council to reserve the writ land for the purpose for which it was reserved namely: 2, on its failure to retain possession of the land in 1939 intended and actually took all steps to ensure that the petitioners' father and the petitioners are not permitted to develop the land and prevented them from enjoying the property with ulterior motive. 1, it is unfortunate, seems to have failed to unearth the real intention on the part of the respondent no. a bare perusal of section 4(1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the official gazette. may be the authority of the sammelan may honestly believe that the existence of a cinema theatre may have the pernicious tendency to vitiate the educational and cultural environment of the institution and therefore, it would like to wish away a cinema theatre in its vicinity, that hardly constitutes public purpose. where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. and in this context 'in good faith' means for legitimate reasons'.where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colorable exercise of power or fraud on power and the exercise of power is vitiated. ) pithily put, bad faith which invalidates the exercise of power -some times called colorable exercise or fraud on power and often times overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. deshmukh, learned counsel for the petitioners that the notification under section 4(1) of the land acquisition act read with section 126 of the maharashtra regional and town planning act, 1966, was bad in law and in consequence, the award passed by the respondent no. 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 the respondent no.ordera.d. mane, j.1. this writ petition is filed on 21-10-1992 claiming threefold reliefs (1) to issue a writ of certiorari or any other writ, direction or order in the nature of writ of certiorari quashing and setting aside the notification no. tps/13/ah/ dated 15-5-1971 published in the maharashtra government gazette, poona division, part i supplement dated 17-6-1971, at page no. 1342 under section 126(4) of the maharashtra regional and town planning act, 1966 read with section 6 of the land acquisition act, 1894, (2) to issue a writ of certiorari or any other writ order or direction in the nature of writ of certiorari or order or direction to quash and set-aside the award dated 26-4-1976 regarding cts no. 5161-a of ahmednagar town, (3) to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of writ of mandamus directing the respondents to hand over vacant possession of the disputed site no, cts 5161-a situated in ahmednagar city to the petitioners within a specified period by removing all encroachments.2. the main thrust of the grievance of the petitioners in this writ petition is that the power to acquire the land of the petitioners was exercised for an extraneous and irrelevant purpose and therefore, it was in colorable exercise of powers vitiated by malice at the behest of the acquiring body to satisfy its chagrin and anguish in the matter of development of said land by the petitioners. therefore, a brief resume of the facts leading to the filing of the writ petition requires to be stated. the petitioners have set out the facts in different paragraphs at different stages.3. the petitioners have come out with three stages of the proceedings.i. the first stage comprises of a long drawn dispute with the government and the municipal council. it is common ground that the land in dispute was originally owned by the father of the petitioners. the respondent no. 2 municipal council, ahmednagar, shown the said land in the master plan of ahmednagar city in the year 1952 as site reserved for the purposes of school building and playground. the petitioners submit that the respondent no. 2 municipal council had claimed ownership of the land by adverse possession some times in 1939. the father of the petitioners had resorted to the civil proceedings. in 1944 a decree was passed in favour of the father of the petitioners in appeal no. 401 of 1939. due to that litigation, according to the petitioners, the relationship between the municipal council and the collector on one hand and their father on the other, was very much strained. it is submitted that despite the decision in favour of the father of the petitioners and his efforts to start the construction, the respondent no. 2 municipal council never allowed the petitioners' father to carry out the construction and his applications for permission to develop the land were rejected. on the contrary, according to the petitioners, the respondent no. 2 municipal council on one or the other grounds started harassing the father of the petitioners and as such several cases were filed against him. it is stated that time and again the father of the petitioners was involved in approximately 95 cases filed by the respondent no. 2 municipal council solely with the intention that their father would be prevented from enjoying the writ land and deprived of the property.ii. the second stage stated by the petitioners is on the point of mala fide on the part of the respondent no. 2. it is stated that the respondent no. 2 had shown the land in dispute as site reserved for the purpose of school building and playground in the master plan of ahmednagar city in the year 1952. though the land was shown reserved for public purpose, according to the petitioners, no steps were taken for years together and ultimately the reservation came to be cancelled. not only that but thereafter again in the year 1963 said site was reserved for the same purpose but till 1971 no steps were taken or no proceedings for acquisition of said site came to be initiated.in this context, it is submitted by the petitioners that the decision in appeal no. 401 of 1939 was challenged by the respondent no. 2 in the high court and, although it was unsuccessful in the said appeal, it never handed over possession of the property to the father of the petitioners till 1944-45. all the times the respondent no. 2 tried its level best not to allow the father of the petitioners to enjoy the property but ultimately possession of the property was obtained in the year 1946. it is submitted by the petitioners that after that, the second reservation in the year 1963, was made but it was lapsed. thereafter, the acquisition proceedings again came to be initiated some time in the year 1971. the petitioners' father raised objection to the proposed acquisition. it is also stated that when the notices of the acquisition proceedings were served on the father of the petitioners, it gave rude shock to him and he expressed that inspite of such a long drawn fight, which was a bona fide fight for enjoying the property, the respondent no. 2 was bent upon not to allow him to enjoy the same but on the other hand, took such a drastic step to deprive him from the enjoyment of the property. it is submitted that the acquisition proceedings which were started and commenced in the year 1971 were not bona fide but actuated with mala fides. it is stated that in the acquisition proceedings award was passed on 26-4-1976 and in or about the same year possession of the property was again taken. it is stated that the acquistion proceedings were completed by the respondent no. 3 who is the town planning officer with the powers of special land acquisition officer.iii. the third stage narrated by the petitioner is an instance to demonstrate that the respondent no. 2 never intended to utilise the property acquired, for the purpose for which it was acquired. it is submitted that as stated above, no proceedings or steps were taken by the respondent no. 3 between 1952 and 1971 and even thereafter. there was, therefore, a calculated effort to keep the father of the petitioners and the petitioners away from the enjoyment of the property. this solitary inaction on the part of the respondent no. 2 fortifies their intention that the respondent no. 2 never intended to utilise the property for the purpose for which it was acquired. in this context, it is submitted that the property was shown to have been reserved for the school building and playground. inspite of the fact that in surrounding areas, there are many schools situated and there was no necessity of any school building. the purpose of reservation and acquisition, which was shown in the development, was just a camouflage and in real sense there was no need or necessity to construct such a building, which is clear from the further steps taken by the respondent no. 2 while changing the purpose for which the property was initially shown to have been reserved and acquired for the public purpose mentioned in the notificationunder section 4(1) of the land acquisition act read with section 126 of the maharashtra regional and town planning act, 1966.3(a). in this regard, the letter dated 21-10-1976 addressed by the respondent no. 2 to the respondent no. 1 is referred to. in the said letter, it was communicated that the purpose for which the land was reserved should be changed and the respondent no. 2 should be permitted to reserve the site for municipal purpose. it is stated that the respondent no. 1 state government rejected said proposal by the letter dated 1-2-1979 and informed the respondent no. 2 that such permission could not be granted. it is stated that a notification in the official gazette dated 15-2-1979 was also published indicating the intention to reserve the disputed site for the municipal purpose. the petitioners filed their objections on 8-6-1979 to the said notification, infer alia, contending that the entire action of the respondent no. 2 was illegal and not genuine for retaining the possession of the land. the petitioners submit that the matter did not rest there but in may, 1980 the president of the municipal council again forwarded a letter to the state government that the proposal annexed with said letter for modification of the purpose for which the land of the petitioners was reserved. in view of the modified proposed plan, the public purpose was also falsely shown which is contrary to one for which the respondent no. 1 was persuaded to issue the notification under section 4(1) of the land acquisition act read with section 126 of the maharashtra regional and town planning act, 1966. it is submitted that the purpose shown was in vague terms as 'municipal purpose'. on 2-11-1980 again the petitioners filed their objections and prayed that the land be given to them and the purpose for which the property was reserved and acquired was no more in existence. it is stated that the modification of the purpose as suggested by the respondent no. 2 in the revised draft development plan was not a minor modification but there was total change of the purpose to deprive the petitioners of the land and which went to the very root of the proceedings, thereby depicting that the respondent no. 2 applied this tactics of reserving the site twice without taking any action and further by sending the proposal to acquire the land belatedly though it was never required for the purpose mentioned. in this context, the petitioners rely on a circumstance obtainable from the application dated 5-6-1961 and also application dated 19-2-1968 filed by their father, addressed to the then minister of urban development, government of maharashtra, putting his grievance. it is submitted that the petitioners have pointed out that there was no bona fide intention to acquire the property of the petitioners but the action was clearly mala fide. it is submitted that the respondents have acted in colorable exercise of powers as is clear from the history of the litigation. it is submitted that the petitioners' father was never allowed to enjoy the property due to whims of the respondent no. 2 and he went on fighting to preserve his legitimate rights. inspite of that the respondent no. 2 municipal council was bent upon to deprive the petitioners from enjoying the property. in this regard, the petitioners relied on the series of criminal cases instituted under various provisions of the bombay municipal boroughs act right from 1939 to 1968. it is submitted that the petitioners' father was subjected to criminal proceedings i.e. about in 95 criminal cases on one or the other reason but all these proceedings culminated in acquittal. it is submitted that that is how the foundation of mala fide intention on the part of therespondent no. 2 was laid in the acquisition proceedings in 1971. in that way of the matter it is submitted that the acquisition of the petitioners' property was resorted to with mala fide intention and the respondent no. 1 was wrong in exercising the powers in the given circumstances of the case. it is submitted that the authorities which exercised the powers in acquisition of the petitioners' property was in colorable exercise if powers.4. the petitioners stated that even after taking possession of the land and award was passed the respondent no. 2 municipal council passed a resolution in 1979 which further discloses their mala fide intention in initiating the acquisition proceedings. it is submitted that as a matter of fact, the respondent no. 2 never intended to utilise the property for the purpose for which it was shown to have been reserved in the development or the purpose for which it was acquired and therefore, it could not be said that the property was acquired for any public purpose. it is stated by the petitioners that their father who has been unsuccessfully fighting the litigation with the respondents and who has been harassed from enjoying the fruits of the soil died because of the harassment meted out to him during his life-time. it is submitted that even till today the respondent no. 2 did nothing to develop the property for the public purpose but allowed the property to remain vacant. it is submitted that the respondent no. 2 with mala fide intention tried to put fencing so as to create defence and even when proceedings were filed against the petitioners when they expressed their desire and had spoken out openly to challenge the award. it is submitted that the acts of commissions and omissions on the part of the respondents are encircled by a firm ring of mala fide intention and colorable exercise of powers and is clearly violative of articles 19 and 21 of the constitution of india. it is submitted that since 1952 till today i.e. approximately in 40 years no steps have been taken by the authorities to utilise the said land for the purpose for which it was reserved and acquired by the respondents and later on obtained possession from the petitioners after passing of the award in the land acquisition proceedings.5. the petitioners stated that thus, it was a case of false and bogus public purpose which was mentioned so as to strengthen their case for acquisition of the land. in fact, even after acquisition the respondents never wanted to utilise the land for said purpose. it is submitted that the petitioners honestly feel that if the authorities, much less the statutory authority in collusion with the respondent no. 1 i.e. the bureaucrats are allowed to adopt such unfair tactics and means and deprive a particular citizen and prevent him from enjoying the property it is to be deprecated and against the letter and spirit of the fundamental principles and also the guarantees which are bestowed upon the citizens. it is submitted that this is nothing but an exceptional case and rarest among rare cases, wherein even after having taken possession of the land more than 16 year back nothing concrete was done. it is submitted that the petitioners have every right to claim the property back which is with mala fide intention and in colorable exercise of powers has been acquired by the respondents even though there existed no public purpose at all and as such award is liable to be quashed. the petitioners stated that the respondent no. 2 continued to keep the property as it is so as to change the purpose mala fide. in this regard the petitioners have relied on two public notices dated 19-6-1993 and 26-7-1993 published in daily samana.it is submitted that the petitioners have filed their objections on 26-7-1993 for change of purpose to commercial purpose as same cannot be termed as 'public purpose' and thus, strongly objected to the modification of the development plan of 18-2-1978 which was already dropped. it is submitted that this publication of change on 19-6-1993 and 26-6-1993 arose because the petitioners addressed a letter on 26-4-1992 to the state government for releasing the land in question from the purview of the development plan and acquisition under the 1973 government resolution. it is submitted that the petitioners have also given purchase notice under the provisions of the bombay town planning act, 1954. that was confirmed by the' state government and that has been recited in the award itself. it is submitted that the acquisition itself has legally lapsed and therefore, there as no alternative but to file this writ petition for the aforesaid reliefs.6. on behalf of the respondent no. 2, an affidavit in reply is filed by one shri pawankumar s/o. lalojirao aloorkar, town planner in the office of the respondent no. 2 municipal council. it is submitted that the allegations and contentions raised by the petitioners are not true and they are not admitted by the respondent no. 2. it may be stated that the said affidavit in reply was filed for the purpose of admission and/or interim relief sought for by the petitioners but no detailed affidavit in reply has been filed during the pendency of this writ petition. quite apart, shri bedre, learned counsel for the respondent no. 2, has adopted the same affidavit in answer to the allegations in the writ petition. it is denied that the relations between the municipal council and the father of the petitioners were strained in view of the litigation between them. it is also denied that the permission to develop the land which was sought by the father of the petitioners was rejected as, according to the deponent, the petitioners have vaguely alleged that the permission was rejected by the municipal council without giving details. it is submitted that the development plan of ahmednagar city was sanctioned under the town planning act and thereafter it was revised under the provisions of the maharashtra regional and town planning act, 1966. the development plan was sanctioned by the state government. thereafter the respondent no. 2 initiated the land acquisition proceedings for acquiring the land of the petitioners. it is submitted that the land was acquired for public purpose of school building and accordingly in the year 1976 the award came to be passed.7. it is also stated that since the property was in front of the office of the municipal council, in 1971 the municipal council submitted a revised proposal to the government of maharashtra under section 37 of the maharashtra regional and town planning act, 1966, that the municipal council be allowed to utilise the land of the petitioners for the municipal purpose. that proposal was, however, rejected by the state government. it is stated that keeping the need of the schools and playgrounds of ahmednagar city the respondent no. 2 municipal council kept the said writ land for the purpose for which it was reserved and constructed a compound wall for protecting the property by obtaining finance from the government in the year 1989. it is stated that thereafter the municipal council prepared the plans for construction of the school building and it was submitted to the deputy director, town planning, nasik. the plans were sanctioned by the deputy director of town planning, nasik, vide his letter dated 13-9-1989. thereafter, considering the basic need and to provide better facilities for education the municipal council again submitted a revised plan for minor modification in the purpose of constructing school building with more additional facilities. the said proposal was sanctioned in the year 1992. it is submitted that the general board of the municipal council passed a resolution to construct a building and funds were raised under the urban development scheme of the government and accordingly, resolution no. 16 was passed on 10-5-1991. it is, therefore, denied that the municipal council have changed the purpose or have not taken any steps for the development of the writ land.8. it is submitted that before acquisition of the land, it was shown reserved in the development plan at the relevant time and therefore, the father of the petitioners was not authorised to develop the land without permission of the competent authority. it is, therefore, denied that the action was taken with mala fide intention or with a view to harass the father of the petitioners. it is submitted that the father of the petitioners unauthorisedly tried to develop the writ land only with a view to defeat the very purpose of acquisition. therefore, the municipal council and the local authorities from time to time took action against him as per procedure and as per the rules and regulations. it is denied that due to harassment from the municipal council the father of the petitioners died. it is stated that the municipal council had also constructed a compound wall and fencing and as such took necessary steps for the construction of the school building and playground. it is, therefore, submitted that there was no ground to challenge the award passed in 1976 nor are they entitled to retain the writ land. the petition is filed only with a view to harass the municipal council.9. in the additional affidavit in reply filed on 24-8-1998 in response to the amendment carried out in the writ petition by the petitioners, it has been stated that it is not correct to say that the respondents have not acted diligently. it is also denied that there was mala fide intention on the part of the respondents. it is also stated that it is not correct to say that the respondents have not exercised powers reasonably and acted in good faith. it is submitted that the respondents have acted according to law and not contrary to the provisions of law or mala fide to harass the petitioners. it is, however, stated that though the municipal council had submitted the proposal for change of the public purpose for which the writ land was reserved, it was not accepted by the government. it is, therefore, not correct to say that the petitioners have right to file the present writ petition. it is further stated that the acquisition proceedings were completed in 1976, award was finally passed in 1976 and possession of the writ land was handed over to the respondent and thereafter the municipal council had taken steps for development of the writ land and implemented the purpose for which the writ land was acquired. it is submitted that the petitioners were given hearing from time to time during the land acquisition proceedings and after that award was passed. lastly it is submitted that the petition of the petitioners suffers from laches in view of the decisions in babu singh & others v. union of india & others, : air1979sc1713 , and the observations of this court in 1977 m.l.j. 417, the petitioners are challenging the legality, validity and correctness of the acquisition proceedings/notifications/award which was passed in 1976 without explaining the delay. therefore, the writ petition is liable to be dismissed.10. it may be stated that there is another affidavit in reply filed by the respondent no. 3 assistant director of town planning and special land acquisition officer. he denied that the acquisition suffers from mala fide. it is submitted that there was no master plan in existence in 1952. the municipal council declared its intention to prepare the development plan under section 4(1) of the bombay town planning act, under the resolution dated 4-12-1957 and after observing all the legal formalities and the government sanctioned the same vide notification dated 14-6-1963 and fixed the date of 1-6-1963 on which the development plan of 1963 came into force. the writ land was reserved for the school building and playground in the development plan sanctioned in 1963. it is denied that no steps were taken for 10 years and ultimately, the reservation came to be cancelled as alleged. it is, however, admitted in para 10 of the affidavit in reply by the respondent no. 2 that the owners of the writ land served a purchase notice under the provisions of the bombay town planning act which was confirmed by the government and therefore, in pursuance of the government directives, the municipal council proposed to acquire the land out of the land from cts no. 5161-b which was designated for the purpose of the school building and playground in the development plan. it is, therefore, submitted that it cannot be said that the land acquisition proceedings which were initiated in 1971 were not bona fide or actuated by mala fide or malice.11. in para 12 of the affidavit in reply it is submitted that there are two primary schools run by private institutions and high schools in the locality. the writ land was acquired for primary schools and playground so as to cater to the needs of the children of those schools in the locality and therefore, the purpose of reservation and acquisition was bona fide. lastly it is submitted that the land was in front of the office of the municipal council and therefore, the municipal council submitted a proposal under section 37 of the maharashtra regional and town planning act but that was turned by the government. thereafter the municipal council constructed a compound wall and fencing and also prepared plans for construction of the building of school and playground. that was submitted to the deputy director of town planning for sanction. the plans were sanctioned on 13-9-1989. it is, therefore, denied that there was no bona fide intention to change public purpose or subsequent modification of the purpose. it is submitted that the petitioners have no grounds to challenge the land acquisition proceedings and they are not entitled to the restoration of the writ petition. the writ petition is filed only with a view to harass the municipal council and to obstruct the development of the city.12. shri s.a. deshmukh, learned counsel for the petitioners, took us through the averments made in the writ petition alongwith the relevant record, copies of which are annexed to the writ petition. in commenting on the chequered history in the matter of acquisition of the land of the petitioners shri deshmukh, learned counsel for the petitioners, made a great deal of emphasis on the circumstances which are obtainable from the chequered history narrated by the petitioners in their writ petition. the only argument advanced by shri s.a. deshmukh, learned counsel for the petitioners, is that the acquisition proceedings were actuated by mala fide right from the beginning i.e. issuance of the notification under section 4(1) of theland acquisition act, 1894 read with section 126 of the maharashtra regional and town planning act, 1966. in consequence, the entire action of the respondents is invalid in law and therefore, the petitioners are entitled to seek reliefs to quash not only the award but also the notification under section 4(1) of the land acquisition act on the basis of the land acquisition proceedings commenced on the ground of mala fide. in support of this contention shri deshmukh, learned counsel for the petitioner, strongly relies on the decision in the case of collector (distt. magistrate) v. raja ram jaiswal, : [1985]3scr995 . the learned counsel further urged that as the things stand even today the land is not used from 1976 till to this day for the purpose for which it was acquired and therefore, the petitioners as owners were entitled for the restoration of the land under the provisions of 1973 government resolution. in this context, reliance is placed on the decision of this court in abbas abdul mhaiter v. the dir. resettlement, : air1997bom237 .13. on the other hand, shri p.m. bedre, learned counsel for the respondent no. 2 municipal council relying on the decision in anant shankar walvekar v. state of maharashtra, : 1997(2)bomcr369 contends that the petition is liable to be dismissed on the doctrine of laches and delay. he also submitted that it is incorrect to say that the respondent no. 2 did not take any steps to implement the purpose for which the land was acquired. in this context, the reliance is placed on the affidavit in reply to show that the steps to get building plans sanctioned were taken. it is, therefore, submitted that the petitioners are not entitled for any of the reliefs asked for.14. thus, there would arise a two-fold question. first is whether the petitioners have been able to prove the material circumstances on the basis of the affidavits in support of their contentions that the respondents exercised the powers for extraneous or irrelevant considerations or reasons and therefore, the entire action of the respondents can be charged with legal mala fides. the second question is whether the delay in filing the writ petition by itself is sufficient to dismiss the writ petition in limine.15. we may observe that when a party alleges mala fides and challenges an action on that ground and arbitrariness heavy burden lies on it to establish its claim, it requires tangible evidence and mere assertions do not carry any weight. it is, therefore, necessary to consider whether material circumstances which are relied on by the petitioners are established.the circumstance which cannot escape our notice is the hostile attitude of the respondent no. 2 in particular against the claim of the father of the petitioners and now the petitioners for developing the land. in this context the facts which are accepted or not seriously disputed may be referred to. as far as back in 1939, the father of the petitioners had to resort to a civil suit for ejecting the respondent no. 2 from the possession of the writ land. in that civil suit the respondent no. 2 had specifically taken a stand that it is the owner of the said land by adverse possession. that stand was, however, failed in appeal preferred by the father of the petitioners being appeal no. 401 of 1939. it may be stated that the petitioners have annexed the copy of the judgment and order in appeal as annexure b collectively. it may be further stated that the high court (coram: sen, j.,) who allowed the appeal on 3-8-1940 with costs throughout passed the decree in respect of the writ landagainst the respondent no. 2. that decision was final. the possession was, however, not delivered by the respondent no. 2 and the decree was required to be executed by intervention of the court. the petitioners's father thus recovered the possession of the writ land in 1946.16. the other connected circumstance in this respect is about the harassment that was meted out to the petitioners' father by the respondent no. 2 even after possession of the writ land was obtained by him in execution of the decree in appeal no. 401 of 1939. the petitioners' father was subjected to 85 criminal cases by the respondent no. 2 filed in the court of judicial magistrate, first class, at ahmednagar. the petitioners have annexed the relevant copies of the judgments in some of the criminal cases. significantly, it appears that beyond instituting the criminal cases the respondent no. 2 did not take steps to prosecute the cases in accordance with law.17. there is another circumstance which requires mention at this stage. there is no dispute that the father of the petitioners had applied for permission to construct or develop the writ land. however, at no point of time the respondent no. 2 granted such permission. on the contrary, the respondent no. 2 rejected the applications made by the petitioners' father and as a matter of fact, the respondent no. 2 had shown the writ land reserved in the development land sic plan in 1952.18. the petitioners have stated that though the writ land was shown to have been reserved for the school building and the playground in 1952 in the development plan, the respondent no. 2, however, did not take steps till the father of the petitioners gave purchase notice under the provisions of the bombay town planning act, 1954. this fact is clearly admitted not only by the respondent no. 2 but by the respondent no. 1 also. as a matter of fact, since no steps were taken, the purported acquisition of the writ land had lapsed.19. there is one more circumstance which cannot escape our notice. inspite of the above position, the land was again shown to have been reserved second time in 1967. the development plan was again revised and finalised under the provisions of the bombay town planning act, 1954. it is surprising to note that even then no steps were taken between 1963 and 1971 for acquisition of the writ land, as same was shown reserved for the construction of the school building and playground.20. it is clear from the affidavits filed by the respondents and the correspondence on which the petitioners have relied, copies of which are produced at exhibit b collectively, that in reality the respondent no. 2 never intended to utilise the land for the construction of the school building and playground. on the contrary, it is clear from the other circumstances to which we will make a reference later on that without there being actual need for acquisition the land was shown to have been acquired. it has been clearly stated in the affidavit in reply and the correspondence that there are several schools in the area where the land is situated and therefore, there was no need for opening the additional primary school in the said area.21. inspite of the aforesaid position, the respondent no. 2 made a proposal for acquisition of the land third time in 1971, by modification of the public purpose from one of school building and playground to of office building. the respondent no. 1, however, declined to accept the request of the respondent no. 2 for changing the public purpose.22. it is thus evident from the various correspondence annexed to the writ petition by the petitioners that on 1-2-1979 the assistant secretary to the government in urban development and public health department, mantralaya, mumbai, informed the president of the respondent no. 2 municipal council that the proposal to allow the municipal council to start the construction work of office building of the municipal council prior to the modification of the proposal (which the municipal council intended to forward) is not legally feasible and it is regretted that same cannot be accepted. the municipal council, therefore, sent the proposal immediately to the director of town planning, pune, to be considered by the government for sanction. inspite of that letter, it may be stated that on 8-6-1979 the father of the petitioners had written to the chief officer of the respondent no. 2 regarding his objection for changing the use of the land from school building and playground to office building and sought restoration of possession of the land. inspite of that, it is evident from the letter dated 2-6-1980 that the president of the municipal council wrote to the secretary to the government, urban development department, mumbai, setting out the following facts :'the development plan of ahmednagar has been revised and the revised development plan of ahmednagar has been sanctioned by the government on 1-4-1978. in this development plan also, the site reserved for primary school and playground is shown'.however, the municipal council observed that there are many primary schools, municipal and private in the locality of the site in question is not necessary to develop the land in question for primary school and playground. the plan showing the location of the primary school was also annexed therewith. it was, therefore, proposed by that letter to change the purpose to construct a new municipal building. in this context, reference may be made to the resolution of the municipal council dated 6-9-1976, wherein, it was clearly pointed out that there are several schools at site and, therefore, there was no need to construct the school building and playground in the land in question. that position has been reiterated twice by the municipal council. inspite of that the government was not in favour of change of any kind in the public purpose. this persistent attempt of the municipal council, in changing the purpose is a strong circumstance which supports the grievance of the petitioners.23. in pursuance of the notification under section 4(1) of the land acquisition act read with section 126 of the maharashtra regional and town planning act, 1966, possession of the writ land was taken after passing the award on 26-4-1976. the matter does not rest here. however, even after passing of the award and taking possession of the land for the purpose of school building and playground the respondent no. 2 tried to make a proposal to the respondent no. 1 for modification of the public purpose in the revised development plan by changing the public purpose for which the land was acquired. in this context, it may be stated that by the letter dated 29-9-1981 (exhibit b collectively) the desk officer to the government of maharashtra, urban development and public health department, mantralaya, mumbai, informed the administrator of the respondent no. 2 that as the minor modification proposal of the council to change the designation of the site from primary school and playground to the office of the municipal council in the development plan of ahmednagar city, it is regretted cannot be agreed to by the government.24. significantly inspite of this clear position made by the state government, the respondent no. 2 appears to have passed a resolution no. 17 on 26-3-1993 by which a public notice was given in the newspapers inviting objections on the ground of modification of the development plan. in reply to the said public notice the petitioners lodged their protest and objections in writing on 26-7-1993, copy of which is produced at page 67. the gist of the reply and the objections filed by the petitioners may be quoted as follows :'that the resolution dated 26-3-1993 is void ab initio as the respondent no. 2 has no power or jurisdiction or locus standi to modify the development plan as shown in the public notice. it was also pointed out that the modification as suggested in the notice to the development plan is not at all of the nature of minor modification as required under section 37 of the maharashtra regional and town planning act, 1966. the alleged proposal of modification is major in nature and also against the public interest and aims and objects of the town planning act. it was further submitted that the modification suggested or proposed in the development plan is not for public purpose. it was also stated that the alleged modification proposed by the respondent no. 2 is illegal and the respondent no. 2 is trying to change the public purpose to commercial purpose to obtain wrongful gains and profits. it was also pointed out that since 1963 till 1988 though the development plan was sanctioned and revised no steps were taken within 10 years but the planning authority failed to revise the same till 1988. therefore, the development plan is not in existence and there is no question of revision of the development plan. the reservation shown in the development has, therefore, automatically lapsed. therefore, the petitioners are entitled to the restoration of the land in question from the municipal council.'it may be stated that there is no dispute that since 1963 the respondent no. 2 has not used the land site no. 93 for primary school for the purposefor which the land was acquired. the right to restoration of the land becauseof non-use for a period of 10 years from the date of acquisition had accrued tothe petitioners. moreover, the respondent no. 2 does not require the land forprimary school, it should be handed over to the objectors as early as possible.25. there is further strong circumstance which is relevant to be mentioned herein. on 26-6-1993 a public notice of the respondent no. 2 dated19-6-1993 was published inter alia inviting objections to the proposed modification of the revised development plan to be submitted for approval to thestate government, by changing the purpose for which the land was acquired.in response to the public notice the petitioners filed their say raising strongobjections inter alia stating that the proposal should be dropped. otherwise,the objectors will take proper legal actions against the municipal council. itmay be stated that in the affidavit in reply filed on 24-8-1998 by the respondent no. 2 it has been specifically stated that so far as the public notice dated19-6-1993 for change of the purpose in the development plan in relation tothe land of the petitioners is concerned, the proposal was not considered bythe state government and therefore, the municipal council has continuedwith the same purpose for which the suit land was reserved and acquired.26. in apprehension that the respondent no. 2 will give effect to their intention in changing the public purpose, the petitioners have filed this writpetition on 21-10-1992 claiming aforesaid reliefs.27. as a matter of fact, in none of the affidavits in reply filed by the respondent no. 2, reference is made to their proposed action for modification of the purpose for which the land was reserved and acquired even in the year 1993. there is also no explanation from the respondent no. 2 why the respondent no. 2 has asked for change of purpose again and again, even though the respondent no. 1 in no uncertain terms has rejected such a proposal for change of purpose twice. failure to furnish any explanation by the respondent no. 2 in the matter of intended change of the public purpose so far as the land covered by this writ petition is concerned is a strongest circumstance, which undoubtedly throws considerable light on their intention of not requiring the land of the petitioners for the purpose for which it was reserved and acquired namely, school building and playground. it is, therefore, clear that inspite of repeated rejection of requests of the municipal council for changing the purpose of the site which was acquired on their representation as a site reserved for school building and playground, the respondent no. 2 municipal council persisted for changing its purpose. it is, therefore, not possible to accept the submission that the respondent no. 2 has continued with the same purpose for which the writ land was acquired after rejection of their requests for changing the purpose by the respondent no. 1 on the basis of this public notice dated 19-6-1993. it is stated in the reply in support of the contention that the respondent no. 2 had proceeded with the same purpose as it has made compound wall and fencing that plans were got sanctioned for construction of the building. we do not think that these steps by themselves are sufficient to accept that the respondent no. 2, as a matter of reality, honestly and really intended to carry out the construction for school building and playground. on the contrary it is clear from the first affidavit in reply filed by the respondent no. 2 that it has no funds to construct the school building or the playground as per the public purpose shown in the acquisition. it is a matter of regret that if the respondent no. 2 were really interested to discharge their obligations to render educational facilities to the children at the costs of the tax payers in the locality they would not have failed in discharging those obligations for a period of more then 25 years. it is evident from the correspondence relied on by the petitioners and annexed to this writ petition as exhibit b collectively as it was the petitioners who were interested to prevent encroachment on the suit land and had sought permission for fencing.28. therefore, in our considered opinion the petitioners have been successful in establishing the aforesaid circumstances on the basis of the affidavits. the aforesaid circumstances clearly show that there was in fact no intention on the part of the municipal council to reserve the writ land for the purpose for which it was reserved namely: the school building and playground right from inception. these circumstances as hereinabove stated, in our view, are a tell-telling circumstances to show that the respondent no. 2, never intended to use the land for the purpose for which it was reserved and influenced the respondent no. 1 to exercise the powers of acquisition under the land acquisition act while issuing the notification under section 4(1) of the land acquisition act read with section 126 of the maharashtra regional and town planning act, 1966.29. we, therefore, find merit in the contentions of the learned counsel for the petitioners that these circumstances, which are not controverted butproved by the petitioners, on the basis of averments made in the writ petition and the annexures thereof, show that the respondent no. 2, on its failure to retain possession of the land in 1939 intended and actually took all steps to ensure that the petitioners' father and the petitioners are not permitted to develop the land and prevented them from enjoying the property with ulterior motive. there also appears merit in the submissions of the learned counsel for the petitioners that the circumstances which are proved from the record are so inter-linked whereby the very intention pf the respondent no. 2 municipal council can be proved to be mala fide and not bona fide.30. shri s.a. deshmukh, learned counsel for the petitioners, submits that the totality of the aforesaid circumstances, if read together, furnishes a clear chain of circumstances in proof of a false and/or bogus or non existent public purpose, on the basis of which the notification under section 4(1) of the land acquisition act read with section 126 of the maharashtra regional and town planning act, 1966 was procured by the respondent no. 2 and therefore, the action of the respondent no. 1 in publishing the notification and in consequence the award passed on that basis, suffers from malice. in the given set of circumstances there is no escape from the conclusion that the entire action of the respondent no. 2 was actuated by malice and the respondent no. 1, it is unfortunate, seems to have failed to unearth the real intention on the part of the respondent no. 2 in persuading it to issue the notification under section 4 of the land acquisition act read with section 126 of the m.r.t.p. act, 1966.31. shri s.a. deshmukh, learned counsel for the petitioners, relies and we think rightly, on the decision of the supreme court in the collector (distt. magistrate), allahabad and another v. raja ram jaiswal, : [1985]3scr995 in support of his submissions that the petitioners are entitled to the reliefs for quashing the acquisition proceedings including the notification under section 4 of the land acquisition act, the award passed therein and for restoration of the land to the petitioners. the facts in the present case are fully and squarely fall within the ratio laid down by the apex court in the aforesaid decision.in the aforesaid case of rajaram jaiswal (cited supra), a writ petition under article 226 of the constitution of india was filed in the allahabad high court questioning the validity of the notification dated 6-2-1975 issued under section 4(1) of the land acquisition act, 1874. by that notification, the land bearing plot no. 62 approximately admeasuring 8265 sq.yds was sought to be acquired as being needed for a public purpose namely; for extension of hindi sangrahalaya of the hindi sahitaya sammelan, prayag. the challenge to the notification was on one of the grounds, namely; that the acquisition proceedings are mala fide. the facts of, that case are somewhat similar to the facts of the, present case in regard to non-requirement of the land for public purpose for which it was acquired. the apex court observed that:'a bare perusal of section 4(1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the official gazette. the second part of sub-section provides that the collector has to cause public notice of the substance of such notification to be given atconvenient places in the locality in which land proposed to be acquired is situated. both the conditions are mandatory.'it may be stated that in the aforesaid case the land acquired was in fact required by the institution not for building of sangrahalaya but for theatre to which the land owners had objected to. at the behest of the sahitaya sammelan, the municipal board sent the proposal for sanction to the government was sent. the government accorded the sanction to the proposal for transfer of the property to sammelan. it was found that the land of sammelan was lying vacant and unutilised for over 32 years. on the aforesaid facts, it was observed that:'the need of land for sammelan is a figment of imagination.it can be stated without fear of contradiction that the need of land for sammelan is a figment of purpose for acquisition of land.'in para 25 of the report, the apex court observed that :'the power to acquire land is to be exercised for carrying out a public purpose, if the authorities of the sammelan cannot tolerate the existence of a cinema theatre in its vicinity, can it be said that such a purpose would be a public purpose? may be the authority of the sammelan may honestly believe that the existence of a cinema theatre may have the pernicious tendency to vitiate the educational and cultural environment of the institution and therefore, it would like to wish away a cinema theatre in its vicinity, that hardly constitutes public purpose. we have already said about its proclaimed need of the land for putting up sangrahalaya. it is an easy escape route whenever sammelan wants to take over some piece of land. therefore, it can be fairly concluded that the sammelan was actuated by extraneous and irrelevant considerations in seeking acquisition of the land and the statutory authority having known this fact yet proceeded to exercise statutory power and initiated the process of acquisition. does this constitute legal mala fides?'in para 26 of the report it is observed:'where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. and in this context 'in good faith' means for legitimate reasons'. where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colorable exercise of power or fraud on power and the exercise of power is vitiated. if. the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. if it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides.'the supreme court further observed:'in municipal council of sydney v. campbell 1925 a.c. 338 it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. in state of punjab v. gurdial singh, : [1980]1scr1071 acquisition of land for constructing a grain market was challenged on the ground of legal mala fides. upholding the challenge this court speaking through krishna iyer, j., explained the concept of legal mala fides in his hitherto inimitable language, diction and style and observed as under (at p. 321 of a.i.r.)'pithily put, bad faith which invalidates the exercise of power - some times called colorable exercise or fraud on power and often times overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. if the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. the action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but the irrelevant to the entrustment. when the custodian of power is influenced in its exercise by considerations outside those for promotion of which power is vested the court calls it a colorable exercise and is undeceived by illusion. in a broad blurred sense, benjamin disraeli was not off the mark even in law when he stated: 'i repeat.... that all power is a trust - that we are accountable for its exercise - that from the people, and for the people, all springs, and all must exist.'the supreme court, therefore observed:'after analysing the factual matrix, it was concluded that the land was not needed for a mandi which was the ostensible purpose for which the land was sought to be acquired but in truth and reality, the mandi need was hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of the statutory engine. the notification was declared invalid on the ground that it suffers from legal mala fides. the case before us is much stronger, far more disturbing and unparalleled in influencing official decision by sheer weight of personal clout.'32. as the facts, which are not controverted and which are inter-linked and complete a chain, show that the power, in this case, is exercised for extraneous and irrelevant considerations and therefore, it is unquestionably a colorable exercise of powers and thus, exercise of powers is vitiated. it may be stated that the power was also exercised not only for extraneous, irrelevant but non-germane considerations in the present case. therefore, we are of the opinion that the power to acquire the land of the petitioners was exercised for extraneous and irrelevant purpose and it was in colorable exercise of powers, namely; to satisfy inner desire of the respondent no. 2 to prevent the real owner of the property from enjoying it. we cannot forget that the question as to the existence of mala fides on the part of the respondent no. 1 or the respondent no. 2 having misused their powers and in colorable exercise of their powers is entirely a question of fact. in this case, the totality of the circumstances as hereinabove set-out especially when they are not controverted, leads to only one conclusion that legal mala fides are established by the petitioners in this case.33. in the result, we accept the submissions of shri s.a. deshmukh, learned counsel for the petitioners that the notification under section 4(1) of the land acquisition act read with section 126 of the maharashtra regional and town planning act, 1966, was bad in law and in consequence, the award passed by the respondent no. 3 was illegal. therefore, the petitioners are entitled to the restoration of the land by removing the encroachments, if any.34. it is true that as contended by shri bedre, learned counsel for the respondent no. 2 that although the award was passed in 1976, the petition isfiled in 1992. but, it cannot be contended that the petition filed after 14 years is liable to be dismissed on the ground of delay and laches. it may be stated that it is not an inflexible rule that whenever there is delay, the court must necessarily refuse to entertain the petition filed after a period of three years or more which is normal period of limitation for a suit. as observed by the division bench of this court in n.l. abhyankar v. union of india 1995 (i) m.l.j. 503:'the rule which says that the court may not inquire into the belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. the question is one of discretion to be followed in the facts and circumstances of each case. 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 whether 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.'it may be stated that in the instant case the respondent no. 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 the respondent no. 2 in fact issued a public notice inviting objections to the modification in the development plan in 1993. the petitioners have in fact when realised the possibility of respondent no. 2 taking steps for changing or modifying the development plan to the extent of their land protested and has 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 the respondent no. 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 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 the respondent no. 2 has not raised the contention of delay and laches in the first affidavit in reply filed on 29-6-1996. it is only in the additional affidavit in reply on 28-4-1998 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 the respondent no. 2 is entitled to raise this contention during the course of arguments.35. it is true that in 1997(i) m.l.j. 470, this court while dealing with a petition challenging the legality of a notification and declaration under sections 4 and 6 of the land acquisition act, respectively, has held that such challenge shall be made within a reasonable time and if it is not so done the petition is liable to be dismissed. in the present case, the facts are quite distinct. the quashing of entire action right from the publication of the notification under section 4(1) of the act is founded on the point of legal malafides. therefore, we do not think that authority is of any help to the respondent no. 2. another case relied on by the respondent no. 2 is reported in a.i.r. 1973 s.c. 1317. that decision is of no help to the respondent no. 2. in the present case the respondent no. 2 has in fact did nothing except by passing resolution for modification of the public purpose for which the land was acquired rather than actually making 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 extra ordinary writ jurisdiction of this court under article 226 of the constitution of india. since the petitioners have been successful in establishing the plea of legal malice as against the respondent no. 2, we think that the perpetual illegal action which has been causing substantial injustice to the petitioners is required to be remedied by invoking the extra ordinary jurisdiction under article 226 of the constitution of india in favour of the petitioners. it cannot be overlooked that while exercising the extra-ordinary 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. the father of the petitioners during his life and after his death, the petitioners have been knocking the doors of justice but justice is denied to them even though the respondent no. 2 exhibited its intention not to use the land for public purpose but to retain possession without developing the land during the last half decade and instead sought to change the purpose to commercial purpose so as to gain wrongful and illegal benefits. it cannot be said that the petitioners conduct was anyway blame-worthy in causing delay or laches in filing the writ petition. on the contrary, the conduct of the respondent no. 2 is found to be not bona fide in acquiring the land of the petitioners. it is in these circumstances we think that although apparently there is delay in filing the writ petition, that by itself is not sufficient to throw the petition without giving equitable relief to the petitioners. if we refuse to entertain the writ petition merely on the ground of delay and laches, as a matter of fact it will be total injustice to the petitioners. there cannot be a mechanical way of dealing with the rights of the parties while exercising the powers under article 226 of the constitution of india. we do not desire those things to happen. we, therefore, do not find any merit in the submissions of the learned counsel for the respondent no. 2 that the writ petition is liable to be dismissed on the ground of delay and laches.36. shri s.a. deshmukh, learned counsel for the petitioners, urged that the petitioners are also entitled to restoration of the land under the provisions of the 1973 government resolution. in this regard he relies on the decision of this court in : air1997bom237 delivered by one of us (a.d. mane, j.,). the 1973 resolution, the validity of which is upheld by the learned single judge and division bench of this court and also by the apex court, provides that if the land acquired is not utilised for the purpose for which it was acquired within a period of three months from the date of taking over possession thereof, the land owner is entitled to the restoration of the land from the collector. in the present case, it is urged that the land although was acquired in 1976, has not been utilised for the same purpose for which it was acquired, namely; construction of the school building and playground.it is emphasized that the intention of the respondents was never to construct the school building or playground. therefore, the land has become vacant under the provisions of 1973 resolution and therefore, the petitioners have become entitled to its restoration. it may be stated that the 1973 resolution contains instruction of the government regarding restoration of the land acquired, in the event of non-use for a period of three years, to the original owner. it is the policy of the state government under the instructions contained in the 1973 resolution that the acquired land should be utilised for the purpose for which it was acquired within a period of three years from the date of acquisition or in case it is not likely to be utilised for the purpose for which it was acquired within a period of three years, the acquiring body shall restore the possession. if the acquiring body fails to utilise the land within period of three years form the the date of taking over possession thereof, it cannot be permitted to change the purpose. in the present case it does not appear that the petitioners have made any representation to the collector who is the competent authority to exercise the powers under the 1973 resolution for the restoration of the land in question and therefore, in the absence of any such representation having been made by the petitioners, it is not possible to accept the contention of the learned counsel for the petitioners that the petitioners are entitled to restoration of the land merely because the land was not utilised for the purpose for which it was acquired within a period of three months. it is quite a separate remedy which is available to the petitioners for restoration of the land under the 1973 resolution, we, therefore, do not find force in the submissions of the learned counsel for the petitioners that this court would be justified in restoring the land to the petitioners merely because the land in question is not utilised for the purpose for which it was acquired within the stipulated period.37. in the result, we allow the writ petition and pass the following order:

Judgment:
ORDER

A.D. Mane, J.

1. This writ petition is filed on 21-10-1992 claiming threefold reliefs (1) to issue a writ of Certiorari or any other writ, direction or order in the nature of Writ of Certiorari quashing and setting aside the Notification No. TPS/13/AH/ dated 15-5-1971 published in the Maharashtra Government Gazette, Poona Division, Part I Supplement dated 17-6-1971, at page No. 1342 under section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 read with section 6 of the Land Acquisition Act, 1894, (2) To issue a Writ of Certiorari or any other writ order or direction in the nature of Writ of Certiorari or order or direction to quash and set-aside the award dated 26-4-1976 regarding CTS No. 5161-A of Ahmednagar town, (3) to issue a Writ of Mandamus or any other appropriate writ, order or direction in the nature of Writ of Mandamus directing the respondents to hand over vacant possession of the disputed site No, CTS 5161-A situated in Ahmednagar city to the petitioners within a specified period by removing all encroachments.

2. The main thrust of the grievance of the petitioners in this writ petition is that the power to acquire the land of the petitioners was exercised for an extraneous and irrelevant purpose and therefore, it was in colorable exercise of powers vitiated by malice at the behest of the acquiring body to satisfy its chagrin and anguish in the matter of development of said land by the petitioners. Therefore, a brief resume of the facts leading to the filing of the writ petition requires to be stated. The petitioners have set out the facts in different paragraphs at different stages.

3. The petitioners have come out with three stages of the proceedings.

I. The first stage comprises of a long drawn dispute with the Government and the Municipal Council. It is common ground that the land in dispute was originally owned by the father of the petitioners. The respondent No. 2 Municipal Council, Ahmednagar, shown the said land in the Master Plan of Ahmednagar city in the year 1952 as site reserved for the purposes of school building and playground. The petitioners submit that the respondent No. 2 Municipal Council had claimed ownership of the land by adverse possession some times in 1939. The father of the petitioners had resorted to the civil proceedings. In 1944 a decree was passed in favour of the father of the petitioners in Appeal No. 401 of 1939. Due to that litigation, according to the petitioners, the relationship between the Municipal Council and the Collector on one hand and their father on the other, was very much strained. It is submitted that despite the decision in favour of the father of the petitioners and his efforts to start the construction, the respondent No. 2 Municipal Council never allowed the petitioners' father to carry out the construction and his applications for permission to develop the land were rejected. On the contrary, according to the petitioners, the respondent No. 2 Municipal Council on one or the other grounds started harassing the father of the petitioners and as such several cases were filed against him. It is stated that time and again the father of the petitioners was involved in approximately 95 cases filed by the respondent No. 2 Municipal Council solely with the intention that their father would be prevented from enjoying the writ land and deprived of the property.

II. The second stage stated by the petitioners is on the point of mala fide on the part of the respondent No. 2. It is stated that the respondent No. 2 had shown the land in dispute as site reserved for the purpose of school building and playground in the Master Plan of Ahmednagar city in the year 1952. Though the land was shown reserved for public purpose, according to the petitioners, no steps were taken for years together and ultimately the reservation came to be cancelled. Not only that but thereafter again in the year 1963 said site was reserved for the same purpose but till 1971 no steps were taken or no proceedings for acquisition of said site came to be initiated.

In this context, it is submitted by the petitioners that the decision in Appeal No. 401 of 1939 was challenged by the respondent No. 2 in the High Court and, although it was unsuccessful in the said appeal, it never handed over possession of the property to the father of the petitioners till 1944-45. All the times the respondent No. 2 tried its level best not to allow the father of the petitioners to enjoy the property but ultimately possession of the property was obtained in the year 1946. It is submitted by the petitioners that after that, the second reservation in the year 1963, was made but it was lapsed. Thereafter, the acquisition proceedings again came to be initiated some time in the year 1971. The petitioners' father raised objection to the proposed acquisition. It is also stated that when the notices of the acquisition proceedings were served on the father of the petitioners, it gave rude shock to him and he expressed that inspite of such a long drawn fight, which was a bona fide fight for enjoying the property, the respondent No. 2 was bent upon not to allow him to enjoy the same but on the other hand, took such a drastic step to deprive him from the enjoyment of the property. It is submitted that the acquisition proceedings which were started and commenced in the year 1971 were not bona fide but actuated with mala fides. It is stated that in the acquisition proceedings award was passed on 26-4-1976 and in or about the same year possession of the property was again taken. It is stated that the acquistion proceedings were completed by the respondent No. 3 who is the Town Planning Officer with the powers of Special Land Acquisition Officer.

III. The third stage narrated by the petitioner is an instance to demonstrate that the respondent No. 2 never intended to utilise the property acquired, for the purpose for which it was acquired. It is submitted that as stated above, no proceedings or steps were taken by the respondent No. 3 between 1952 and 1971 and even thereafter. There was, therefore, a calculated effort to keep the father of the petitioners and the petitioners away from the enjoyment of the property. This solitary inaction on the part of the respondent No. 2 fortifies their intention that the respondent No. 2 never intended to utilise the property for the purpose for which it was acquired. In this context, it is submitted that the property was shown to have been reserved for the school building and playground. Inspite of the fact that in surrounding areas, there are many schools situated and there was no necessity of any school building. The purpose of reservation and acquisition, which was shown in the development, was just a camouflage and in real sense there was no need or necessity to construct such a building, which is clear from the further steps taken by the respondent No. 2 while changing the purpose for which the property was initially shown to have been reserved and acquired for the public purpose mentioned in the notificationunder section 4(1) of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966.

3(a). In this regard, the letter dated 21-10-1976 addressed by the respondent No. 2 to the respondent No. 1 is referred to. In the said letter, it was communicated that the purpose for which the land was reserved should be changed and the respondent No. 2 should be permitted to reserve the site for Municipal purpose. It is stated that the respondent No. 1 State Government rejected said proposal by the letter dated 1-2-1979 and informed the respondent No. 2 that such permission could not be granted. It is stated that a notification in the Official Gazette dated 15-2-1979 was also published indicating the intention to reserve the disputed site for the Municipal purpose. The petitioners filed their objections on 8-6-1979 to the said notification, infer alia, contending that the entire action of the respondent No. 2 was illegal and not genuine for retaining the possession of the land. The petitioners submit that the matter did not rest there but in May, 1980 the President of the Municipal Council again forwarded a letter to the State Government that the proposal annexed with said letter for modification of the purpose for which the land of the petitioners was reserved. In view of the modified proposed plan, the public purpose was also falsely shown which is contrary to one for which the respondent No. 1 was persuaded to issue the notification under section 4(1) of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966. It is submitted that the purpose shown was in vague terms as 'Municipal purpose'. On 2-11-1980 again the petitioners filed their objections and prayed that the land be given to them and the purpose for which the property was reserved and acquired was no more in existence. It is stated that the modification of the purpose as suggested by the respondent No. 2 in the revised draft development plan was not a minor modification but there was total change of the purpose to deprive the petitioners of the land and which went to the very root of the proceedings, thereby depicting that the respondent No. 2 applied this tactics of reserving the site twice without taking any action and further by sending the proposal to acquire the land belatedly though it was never required for the purpose mentioned. In this context, the petitioners rely on a circumstance obtainable from the application dated 5-6-1961 and also application dated 19-2-1968 filed by their father, addressed to the then Minister of Urban Development, Government of Maharashtra, putting his grievance. It is submitted that the petitioners have pointed out that there was no bona fide intention to acquire the property of the petitioners but the action was clearly mala fide. It is submitted that the respondents have acted in colorable exercise of powers as is clear from the history of the litigation. It is submitted that the petitioners' father was never allowed to enjoy the property due to whims of the respondent No. 2 and he went on fighting to preserve his legitimate rights. Inspite of that the respondent No. 2 Municipal Council was bent upon to deprive the petitioners from enjoying the property. In this regard, the petitioners relied on the series of criminal cases instituted under various provisions of the Bombay Municipal Boroughs Act right from 1939 to 1968. It is submitted that the petitioners' father was subjected to criminal proceedings i.e. about in 95 criminal cases on one or the other reason but all these proceedings culminated in acquittal. It is submitted that that is how the foundation of mala fide intention on the part of therespondent No. 2 was laid in the acquisition proceedings in 1971. In that way of the matter it is submitted that the acquisition of the petitioners' property was resorted to with mala fide intention and the respondent No. 1 was wrong in exercising the powers in the given circumstances of the case. It is submitted that the authorities which exercised the powers in acquisition of the petitioners' property was in colorable exercise if powers.

4. The petitioners stated that even after taking possession of the land and award was passed the respondent No. 2 Municipal Council passed a resolution in 1979 which further discloses their mala fide intention in initiating the acquisition proceedings. It is submitted that as a matter of fact, the respondent No. 2 never intended to utilise the property for the purpose for which it was shown to have been reserved in the development or the purpose for which it was acquired and therefore, it could not be said that the property was acquired for any public purpose. It is stated by the petitioners that their father who has been unsuccessfully fighting the litigation with the respondents and who has been harassed from enjoying the fruits of the soil died because of the harassment meted out to him during his life-time. It is submitted that even till today the respondent No. 2 did nothing to develop the property for the public purpose but allowed the property to remain vacant. It is submitted that the respondent No. 2 with mala fide intention tried to put fencing so as to create defence and even when proceedings were filed against the petitioners when they expressed their desire and had spoken out openly to challenge the award. It is submitted that the acts of commissions and omissions on the part of the respondents are encircled by a firm ring of mala fide intention and colorable exercise of powers and is clearly violative of Articles 19 and 21 of the Constitution of India. It is submitted that since 1952 till today i.e. approximately in 40 years no steps have been taken by the authorities to utilise the said land for the purpose for which it was reserved and acquired by the respondents and later on obtained possession from the petitioners after passing of the award in the land acquisition proceedings.

5. The petitioners stated that thus, it was a case of false and bogus public purpose which was mentioned so as to strengthen their case for acquisition of the land. In fact, even after acquisition the respondents never wanted to utilise the land for said purpose. It is submitted that the petitioners honestly feel that if the authorities, much less the statutory authority in collusion with the respondent No. 1 i.e. the bureaucrats are allowed to adopt such unfair tactics and means and deprive a particular citizen and prevent him from enjoying the property it is to be deprecated and against the letter and spirit of the fundamental principles and also the guarantees which are bestowed upon the citizens. It is submitted that this is nothing but an exceptional case and rarest among rare cases, wherein even after having taken possession of the land more than 16 year back nothing concrete was done. It is submitted that the petitioners have every right to claim the property back which is with mala fide intention and in colorable exercise of powers has been acquired by the respondents even though there existed no public purpose at all and as such award is liable to be quashed. The petitioners stated that the respondent No. 2 continued to keep the property as it is so as to change the purpose mala fide. In this regard the petitioners have relied on two public notices dated 19-6-1993 and 26-7-1993 published in Daily Samana.It is submitted that the petitioners have filed their objections on 26-7-1993 for change of purpose to commercial purpose as same cannot be termed as 'public purpose' and thus, strongly objected to the modification of the development plan of 18-2-1978 which was already dropped. It is submitted that this publication of change on 19-6-1993 and 26-6-1993 arose because the petitioners addressed a letter on 26-4-1992 to the State Government for releasing the land in question from the purview of the development plan and acquisition under the 1973 Government Resolution. It is submitted that the petitioners have also given purchase notice under the provisions of the Bombay Town Planning Act, 1954. That was confirmed by the' State Government and that has been recited in the Award itself. It is submitted that the acquisition itself has legally lapsed and therefore, there as no alternative but to file this writ petition for the aforesaid reliefs.

6. On behalf of the respondent No. 2, an affidavit in reply is filed by one Shri Pawankumar s/o. Lalojirao Aloorkar, Town Planner in the office of the respondent No. 2 Municipal Council. It is submitted that the allegations and contentions raised by the petitioners are not true and they are not admitted by the respondent No. 2. It may be stated that the said affidavit in reply was filed for the purpose of admission and/or interim relief sought for by the petitioners but no detailed affidavit in reply has been filed during the pendency of this writ petition. Quite apart, Shri Bedre, learned Counsel for the respondent No. 2, has adopted the same affidavit in answer to the allegations in the writ petition. It is denied that the relations between the Municipal Council and the father of the petitioners were strained in view of the litigation between them. It is also denied that the permission to develop the land which was sought by the father of the petitioners was rejected as, according to the deponent, the petitioners have vaguely alleged that the permission was rejected by the Municipal Council without giving details. It is submitted that the development plan of Ahmednagar city was sanctioned under the Town Planning Act and thereafter it was revised under the provisions of the Maharashtra Regional and Town Planning Act, 1966. The development plan was sanctioned by the State Government. Thereafter the respondent No. 2 initiated the land acquisition proceedings for acquiring the land of the petitioners. It is submitted that the land was acquired for public purpose of school building and accordingly in the year 1976 the award came to be passed.

7. It is also stated that since the property was in front of the office of the Municipal Council, in 1971 the Municipal Council submitted a revised proposal to the Government of Maharashtra under section 37 of the Maharashtra Regional and Town Planning Act, 1966, that the Municipal Council be allowed to utilise the land of the petitioners for the Municipal purpose. That proposal was, however, rejected by the State Government. It is stated that keeping the need of the schools and playgrounds of Ahmednagar city the respondent No. 2 Municipal Council kept the said writ land for the purpose for which it was reserved and constructed a compound wall for protecting the property by obtaining finance from the Government in the year 1989. It is stated that thereafter the Municipal Council prepared the plans for construction of the school building and it was submitted to the Deputy Director, Town Planning, Nasik. The plans were sanctioned by the Deputy Director of Town Planning, Nasik, vide his letter dated 13-9-1989. Thereafter, considering the basic need and to provide better facilities for education the Municipal Council again submitted a revised plan for minor modification in the purpose of constructing school building with more additional facilities. The said proposal was sanctioned in the year 1992. It is submitted that the General Board of the Municipal Council passed a resolution to construct a building and funds were raised under the Urban Development Scheme of the Government and accordingly, Resolution No. 16 was passed on 10-5-1991. It is, therefore, denied that the Municipal Council have changed the purpose or have not taken any steps for the development of the writ land.

8. It is submitted that before acquisition of the land, it was shown reserved in the development plan at the relevant time and therefore, the father of the petitioners was not authorised to develop the land without permission of the competent authority. It is, therefore, denied that the action was taken with mala fide intention or with a view to harass the father of the petitioners. It is submitted that the father of the petitioners unauthorisedly tried to develop the writ land only with a view to defeat the very purpose of acquisition. Therefore, the Municipal Council and the local authorities from time to time took action against him as per procedure and as per the rules and regulations. It is denied that due to harassment from the Municipal Council the father of the petitioners died. It is stated that the Municipal Council had also constructed a compound wall and fencing and as such took necessary steps for the construction of the school building and playground. It is, therefore, submitted that there was no ground to challenge the Award passed in 1976 nor are they entitled to retain the writ land. The petition is filed only with a view to harass the Municipal Council.

9. In the additional affidavit in reply filed on 24-8-1998 in response to the amendment carried out in the writ petition by the petitioners, it has been stated that it is not correct to say that the respondents have not acted diligently. It is also denied that there was mala fide intention on the part of the respondents. It is also stated that it is not correct to say that the respondents have not exercised powers reasonably and acted in good faith. It is submitted that the respondents have acted according to law and not contrary to the provisions of law or mala fide to harass the petitioners. It is, however, stated that though the Municipal Council had submitted the proposal for change of the public purpose for which the writ land was reserved, it was not accepted by the Government. It is, therefore, not correct to say that the petitioners have right to file the present writ petition. It is further stated that the acquisition proceedings were completed in 1976, award was finally passed in 1976 and possession of the writ land was handed over to the respondent and thereafter the Municipal Council had taken steps for development of the writ land and implemented the purpose for which the writ land was acquired. It is submitted that the petitioners were given hearing from time to time during the land acquisition proceedings and after that award was passed. Lastly it is submitted that the petition of the petitioners suffers from laches in view of the decisions in Babu Singh & others v. Union of India & others, : AIR1979SC1713 , and the observations of this Court in 1977 M.L.J. 417, the petitioners are challenging the legality, validity and correctness of the acquisition proceedings/notifications/award which was passed in 1976 without explaining the delay. Therefore, the writ petition is liable to be dismissed.

10. It may be stated that there is another affidavit in reply filed by the respondent No. 3 Assistant Director of Town Planning and Special Land Acquisition Officer. He denied that the acquisition suffers from mala fide. It is submitted that there was no Master Plan in existence in 1952. The Municipal Council declared its intention to prepare the development plan under section 4(1) of the Bombay Town Planning Act, under the Resolution dated 4-12-1957 and after observing all the legal formalities and the Government sanctioned the same vide notification dated 14-6-1963 and fixed the date of 1-6-1963 on which the development plan of 1963 came into force. The writ land was reserved for the school Building and playground in the development plan sanctioned in 1963. It is denied that no steps were taken for 10 years and ultimately, the reservation came to be cancelled as alleged. It is, however, admitted in para 10 of the affidavit in reply by the respondent No. 2 that the owners of the writ land served a purchase notice under the provisions of the Bombay Town Planning Act which was confirmed by the Government and therefore, in pursuance of the Government directives, the Municipal Council proposed to acquire the land out of the land from CTS No. 5161-B which was designated for the purpose of the school building and playground in the development plan. It is, therefore, submitted that it cannot be said that the land acquisition proceedings which were initiated in 1971 were not bona fide or actuated by mala fide or malice.

11. In para 12 of the affidavit in reply it is submitted that there are two primary schools run by private institutions and high schools in the locality. The writ land was acquired for primary schools and playground so as to cater to the needs of the children of those schools in the locality and therefore, the purpose of reservation and acquisition was bona fide. Lastly it is submitted that the land was in front of the office of the Municipal Council and therefore, the Municipal Council submitted a proposal under section 37 of the Maharashtra Regional and Town Planning Act but that was turned by the Government. Thereafter the Municipal Council constructed a compound wall and fencing and also prepared plans for construction of the building of school and playground. That was submitted to the Deputy Director of Town Planning for sanction. The plans were sanctioned on 13-9-1989. It is, therefore, denied that there was no bona fide intention to change public purpose or subsequent modification of the purpose. It is submitted that the petitioners have no grounds to challenge the land acquisition proceedings and they are not entitled to the restoration of the writ petition. The writ petition is filed only with a view to harass the Municipal Council and to obstruct the development of the city.

12. Shri S.A. Deshmukh, learned Counsel for the petitioners, took us through the averments made in the writ petition alongwith the relevant record, copies of which are annexed to the writ petition. In commenting on the chequered history in the matter of acquisition of the land of the petitioners Shri Deshmukh, learned Counsel for the petitioners, made a great deal of emphasis on the circumstances which are obtainable from the chequered history narrated by the petitioners in their writ petition. The only argument advanced by Shri S.A. Deshmukh, learned Counsel for the petitioners, is that the acquisition proceedings were actuated by mala fide right from the beginning i.e. issuance of the notification under section 4(1) of theLand Acquisition Act, 1894 read with section 126 of the Maharashtra Regional and Town Planning Act, 1966. In consequence, the entire action of the respondents is invalid in law and therefore, the petitioners are entitled to seek reliefs to quash not only the Award but also the notification under section 4(1) of the Land Acquisition Act on the basis of the land acquisition proceedings commenced on the ground of mala fide. In support of this contention Shri Deshmukh, learned Counsel for the petitioner, strongly relies on the decision in the case of Collector (Distt. Magistrate) v. Raja Ram Jaiswal, : [1985]3SCR995 . The learned Counsel further urged that as the things stand even today the land is not used from 1976 till to this day for the purpose for which it was acquired and therefore, the petitioners as owners were entitled for the restoration of the land under the provisions of 1973 Government Resolution. In this context, reliance is placed on the decision of this Court in Abbas Abdul Mhaiter v. The Dir. Resettlement, : AIR1997Bom237 .

13. On the other hand, Shri P.M. Bedre, learned Counsel for the respondent No. 2 Municipal Council relying on the decision in Anant Shankar Walvekar v. State of Maharashtra, : 1997(2)BomCR369 contends that the petition is liable to be dismissed on the doctrine of laches and delay. He also submitted that it is incorrect to say that the respondent No. 2 did not take any steps to implement the purpose for which the land was acquired. In this context, the reliance is placed on the affidavit in reply to show that the steps to get building plans sanctioned were taken. It is, therefore, submitted that the petitioners are not entitled for any of the reliefs asked for.

14. Thus, there would arise a two-fold question. First is Whether the petitioners have been able to prove the material circumstances on the basis of the affidavits in support of their contentions that the respondents exercised the powers for extraneous or irrelevant considerations or reasons and therefore, the entire action of the respondents can be charged with legal mala fides. The second question is whether the delay in filing the writ petition by itself is sufficient to dismiss the writ petition in limine.

15. We may observe that when a party alleges mala fides and challenges an action on that ground and arbitrariness heavy burden lies on it to establish its claim, it requires tangible evidence and mere assertions do not carry any weight. It is, therefore, necessary to consider whether material circumstances which are relied on by the petitioners are established.

The circumstance which cannot escape our notice is the hostile attitude of the respondent No. 2 in particular against the claim of the father of the petitioners and now the petitioners for developing the land. In this context the facts which are accepted or not seriously disputed may be referred to. As far as back in 1939, the father of the petitioners had to resort to a civil suit for ejecting the respondent No. 2 from the possession of the writ land. In that civil suit the respondent No. 2 had specifically taken a stand that it is the owner of the said land by adverse possession. That stand was, however, failed in appeal preferred by the father of the petitioners being Appeal No. 401 of 1939. It may be stated that the petitioners have annexed the copy of the judgment and order in appeal as Annexure B collectively. It may be further stated that the High Court (Coram: Sen, J.,) who allowed the appeal on 3-8-1940 with costs throughout passed the decree in respect of the writ landagainst the respondent No. 2. That decision was final. The possession was, however, not delivered by the respondent No. 2 and the decree was required to be executed by intervention of the Court. The petitioners's father thus recovered the possession of the writ land in 1946.

16. The other connected circumstance in this respect is about the harassment that was meted out to the petitioners' father by the respondent No. 2 even after possession of the writ land was obtained by him in execution of the decree in Appeal No. 401 of 1939. The petitioners' father was subjected to 85 criminal cases by the respondent No. 2 filed in the Court of Judicial Magistrate, First Class, at Ahmednagar. The petitioners have annexed the relevant copies of the judgments in some of the criminal cases. Significantly, it appears that beyond instituting the criminal cases the respondent No. 2 did not take steps to prosecute the cases in accordance with law.

17. There is another circumstance which requires mention at this stage. There is no dispute that the father of the petitioners had applied for permission to construct or develop the writ land. However, at no point of time the respondent No. 2 granted such permission. On the contrary, the respondent No. 2 rejected the applications made by the petitioners' father and as a matter of fact, the respondent No. 2 had shown the writ land reserved in the development land sic plan in 1952.

18. The petitioners have stated that though the writ land was shown to have been reserved for the school building and the playground in 1952 in the development plan, the respondent No. 2, however, did not take steps till the father of the petitioners gave purchase notice under the provisions of the Bombay Town Planning Act, 1954. This fact is clearly admitted not only by the respondent No. 2 but by the respondent No. 1 also. As a matter of fact, since no steps were taken, the purported acquisition of the writ land had lapsed.

19. There is one more circumstance which cannot escape our notice. Inspite of the above position, the land was again shown to have been reserved second time in 1967. The development plan was again revised and finalised under the provisions of the Bombay Town Planning Act, 1954. It is surprising to note that even then no steps were taken between 1963 and 1971 for acquisition of the writ land, as same was shown reserved for the construction of the school building and playground.

20. It is clear from the affidavits filed by the respondents and the correspondence on which the petitioners have relied, copies of which are produced at Exhibit B collectively, that in reality the respondent No. 2 never intended to utilise the land for the construction of the school building and playground. On the contrary, it is clear from the other circumstances to which we will make a reference later on that without there being actual need for acquisition the land was shown to have been acquired. It has been clearly stated in the affidavit in reply and the correspondence that there are several schools in the area where the land is situated and therefore, there was no need for opening the additional primary school in the said area.

21. Inspite of the aforesaid position, the respondent No. 2 made a proposal for acquisition of the land third time in 1971, by modification of the public purpose from one of school building and playground to of office building. The respondent No. 1, however, declined to accept the request of the respondent No. 2 for changing the public purpose.

22. It is thus evident from the various correspondence annexed to the writ petition by the petitioners that on 1-2-1979 the Assistant Secretary to the Government in Urban Development and Public Health Department, Mantralaya, Mumbai, informed the President of the respondent No. 2 Municipal Council that the proposal to allow the Municipal Council to start the construction work of office building of the Municipal Council prior to the modification of the proposal (which the Municipal Council intended to forward) is not legally feasible and it is regretted that same cannot be accepted. The Municipal Council, therefore, sent the proposal immediately to the Director of Town Planning, Pune, to be considered by the Government for sanction. Inspite of that letter, it may be stated that on 8-6-1979 the father of the petitioners had written to the Chief Officer of the respondent No. 2 regarding his objection for changing the use of the land from school building and playground to office building and sought restoration of possession of the land. Inspite of that, it is evident from the letter dated 2-6-1980 that the President of the Municipal Council wrote to the Secretary to the Government, Urban Development Department, Mumbai, setting out the following facts :

'The development plan of Ahmednagar has been revised and the revised Development Plan of Ahmednagar has been sanctioned by the Government on 1-4-1978. In this Development Plan also, the site reserved for primary school and playground is shown'.

However, the Municipal Council observed that there are many primary schools, Municipal and private in the locality of the site in question is not necessary to develop the land in question for primary school and playground. The plan showing the location of the primary school was also annexed therewith. It was, therefore, proposed by that letter to change the purpose to construct a new Municipal building. In this context, reference may be made to the Resolution of the Municipal Council dated 6-9-1976, wherein, it was clearly pointed out that there are several schools at site and, therefore, there was no need to construct the school building and playground in the land in question. That position has been reiterated twice by the Municipal Council. Inspite of that the Government was not in favour of change of any kind in the public purpose. This persistent attempt of the Municipal Council, in changing the purpose is a strong circumstance which supports the grievance of the petitioners.

23. In pursuance of the notification under section 4(1) of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966, possession of the writ land was taken after passing the Award on 26-4-1976. The matter does not rest here. However, even after passing of the Award and taking possession of the land for the purpose of school building and playground the respondent No. 2 tried to make a proposal to the respondent No. 1 for modification of the public purpose in the revised development plan by changing the public purpose for which the land was acquired. In this context, it may be stated that by the letter dated 29-9-1981 (Exhibit B collectively) the Desk Officer to the Government of Maharashtra, Urban Development and Public Health Department, Mantralaya, Mumbai, informed the Administrator of the respondent No. 2 that as the minor modification proposal of the Council to change the designation of the site from primary school and playground to the office of the Municipal Council in the Development plan of Ahmednagar city, it is regretted cannot be agreed to by the Government.

24. Significantly inspite of this clear position made by the State Government, the respondent No. 2 appears to have passed a Resolution No. 17 on 26-3-1993 by which a public notice was given in the newspapers inviting objections on the ground of modification of the development plan. In reply to the said public notice the petitioners lodged their protest and objections in writing on 26-7-1993, copy of which is produced at page 67. The gist of the reply and the objections filed by the petitioners may be quoted as follows :

'that the resolution dated 26-3-1993 is void ab initio as the respondent No. 2 has no power or jurisdiction or locus standi to modify the development plan as shown in the public notice. It was also pointed out that the modification as suggested in the notice to the development plan is not at all of the nature of minor modification as required under section 37 of the Maharashtra Regional and Town Planning Act, 1966. The alleged proposal of modification is major in nature and also against the public interest and aims and objects of the Town Planning Act. It was further submitted that the modification suggested or proposed in the development plan is not for public purpose. It was also stated that the alleged modification proposed by the respondent No. 2 is illegal and the respondent No. 2 is trying to change the public purpose to commercial purpose to obtain wrongful gains and profits. It was also pointed out that since 1963 till 1988 though the development plan was sanctioned and revised no steps were taken within 10 years but the planning authority failed to revise the same till 1988. Therefore, the development plan is not in existence and there is no question of revision of the development plan. The reservation shown in the development has, therefore, automatically lapsed. Therefore, the petitioners are entitled to the restoration of the land in question from the Municipal Council.'

It may be stated that there is no dispute that since 1963 the respondent No. 2 has not used the land Site No. 93 for primary school for the purposefor which the land was acquired. The right to restoration of the land becauseof non-use for a period of 10 years from the date of acquisition had accrued tothe petitioners. Moreover, the respondent No. 2 does not require the land forprimary school, it should be handed over to the objectors as early as possible.

25. There is further strong circumstance which is relevant to be mentioned herein. On 26-6-1993 a public notice of the respondent No. 2 dated19-6-1993 was published inter alia inviting objections to the proposed modification of the revised development plan to be submitted for approval to theState Government, by changing the purpose for which the land was acquired.In response to the public notice the petitioners filed their say raising strongobjections inter alia stating that the proposal should be dropped. Otherwise,the objectors will take proper legal actions against the Municipal Council. Itmay be stated that in the affidavit in reply filed on 24-8-1998 by the respondent No. 2 it has been specifically stated that so far as the public notice dated19-6-1993 for change of the purpose in the development plan in relation tothe land of the petitioners is concerned, the proposal was not considered bythe State Government and therefore, the Municipal Council has continuedwith the same purpose for which the suit land was reserved and acquired.

26. In apprehension that the respondent No. 2 will give effect to their intention in changing the public purpose, the petitioners have filed this writpetition on 21-10-1992 claiming aforesaid reliefs.

27. As a matter of fact, in none of the affidavits in reply filed by the respondent No. 2, reference is made to their proposed action for modification of the purpose for which the land was reserved and acquired even in the year 1993. There is also no explanation from the respondent No. 2 why the respondent No. 2 has asked for change of purpose again and again, even though the respondent No. 1 in no uncertain terms has rejected such a proposal for change of purpose twice. Failure to furnish any explanation by the respondent No. 2 in the matter of intended change of the public purpose so far as the land covered by this writ petition is concerned is a strongest circumstance, which undoubtedly throws considerable light on their intention of not requiring the land of the petitioners for the purpose for which it was reserved and acquired namely, school building and playground. It is, therefore, clear that inspite of repeated rejection of requests of the Municipal Council for changing the purpose of the site which was acquired on their representation as a site reserved for school building and playground, the respondent No. 2 Municipal Council persisted for changing its purpose. It is, therefore, not possible to accept the submission that the respondent No. 2 has continued with the same purpose for which the writ land was acquired after rejection of their requests for changing the purpose by the respondent No. 1 on the basis of this public notice dated 19-6-1993. It is stated in the reply in support of the contention that the respondent No. 2 had proceeded with the same purpose as it has made compound wall and fencing that plans were got sanctioned for construction of the building. We do not think that these steps by themselves are sufficient to accept that the respondent No. 2, as a matter of reality, honestly and really intended to carry out the construction for school building and playground. On the contrary it is clear from the first affidavit in reply filed by the respondent No. 2 that it has no funds to construct the school building or the playground as per the public purpose shown in the acquisition. It is a matter of regret that if the respondent No. 2 were really interested to discharge their obligations to render educational facilities to the children at the costs of the tax payers in the locality they would not have failed in discharging those obligations for a period of more then 25 years. It is evident from the correspondence relied on by the petitioners and annexed to this writ petition as Exhibit B collectively as it was the petitioners who were interested to prevent encroachment on the suit land and had sought permission for fencing.

28. Therefore, in our considered opinion the petitioners have been successful in establishing the aforesaid circumstances on the basis of the affidavits. The aforesaid circumstances clearly show that there was in fact no intention on the part of the Municipal Council to reserve the writ land for the purpose for which it was reserved namely: the school building and playground right from inception. These circumstances as hereinabove stated, in our view, are a tell-telling circumstances to show that the respondent No. 2, never intended to use the land for the purpose for which it was reserved and influenced the respondent No. 1 to exercise the powers of acquisition under the Land Acquisition Act while issuing the notification under section 4(1) of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966.

29. We, therefore, find merit in the contentions of the learned Counsel for the petitioners that these circumstances, which are not controverted butproved by the petitioners, on the basis of averments made in the writ petition and the annexures thereof, show that the respondent No. 2, on its failure to retain possession of the land in 1939 intended and actually took all steps to ensure that the petitioners' father and the petitioners are not permitted to develop the land and prevented them from enjoying the property with ulterior motive. There also appears merit in the submissions of the learned Counsel for the petitioners that the circumstances which are proved from the record are so inter-linked whereby the very intention pf the respondent No. 2 Municipal Council can be proved to be mala fide and not bona fide.

30. Shri S.A. Deshmukh, learned Counsel for the petitioners, submits that the totality of the aforesaid circumstances, if read together, furnishes a clear chain of circumstances in proof of a false and/or bogus or non existent public purpose, on the basis of which the notification under section 4(1) of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966 was procured by the respondent No. 2 and therefore, the action of the respondent No. 1 in publishing the notification and in consequence the award passed on that basis, suffers from malice. In the given set of circumstances there is no escape from the conclusion that the entire action of the respondent No. 2 was actuated by malice and the respondent No. 1, it is unfortunate, seems to have failed to unearth the real intention on the part of the respondent No. 2 in persuading it to issue the notification under section 4 of the Land Acquisition Act read with section 126 of the M.R.T.P. Act, 1966.

31. Shri S.A. Deshmukh, learned Counsel for the petitioners, relies and we think rightly, on the decision of the Supreme Court in The Collector (Distt. Magistrate), Allahabad and another v. Raja Ram Jaiswal, : [1985]3SCR995 in support of his submissions that the petitioners are entitled to the reliefs for quashing the acquisition proceedings including the notification under section 4 of the Land Acquisition Act, the award passed therein and for restoration of the land to the petitioners. The facts in the present case are fully and squarely fall within the ratio laid down by the Apex Court in the aforesaid decision.

In the aforesaid case of Rajaram Jaiswal (cited supra), a writ petition under Article 226 of the Constitution of India was filed in the Allahabad High Court questioning the validity of the notification dated 6-2-1975 issued under section 4(1) of the Land Acquisition Act, 1874. By that notification, the land bearing Plot No. 62 approximately admeasuring 8265 sq.yds was sought to be acquired as being needed for a public purpose namely; for extension of Hindi Sangrahalaya of the Hindi Sahitaya Sammelan, Prayag. The challenge to the notification was on one of the grounds, namely; that the acquisition proceedings are mala fide. The facts of, that case are somewhat similar to the facts of the, present case in regard to non-requirement of the land for public purpose for which it was acquired. The Apex Court observed that:

'A bare perusal of section 4(1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the Official Gazette. The second part of sub-section provides that the Collector has to cause public notice of the substance of such notification to be given atconvenient places in the locality in which land proposed to be acquired is situated. Both the conditions are mandatory.'

It may be stated that in the aforesaid case the land acquired was in fact required by the Institution not for building of Sangrahalaya but for theatre to which the land owners had objected to. At the behest of the Sahitaya Sammelan, the Municipal Board sent the proposal for sanction to the Government was sent. The Government accorded the sanction to the proposal for transfer of the property to Sammelan. It was found that the land of Sammelan was lying vacant and unutilised for over 32 years. On the aforesaid facts, it was observed that:

'the need of land for Sammelan is a figment of imagination.It can be stated without fear of contradiction that the need of land for Sammelan is a figment of purpose for acquisition of land.'

In para 25 of the report, the Apex Court observed that :

'The power to acquire land is to be exercised for carrying out a public purpose, if the authorities of the Sammelan cannot tolerate the existence of a cinema theatre in its vicinity, can it be said that such a purpose would be a public purpose? May be the authority of the Sammelan may honestly believe that the existence of a cinema theatre may have the pernicious tendency to vitiate the educational and cultural environment of the institution and therefore, it would like to wish away a cinema theatre in its vicinity, that hardly constitutes public purpose. We have already said about its proclaimed need of the land for putting up Sangrahalaya. It is an easy escape route whenever Sammelan wants to take over some piece of land. Therefore, it can be fairly concluded that the Sammelan was actuated by extraneous and irrelevant considerations in seeking acquisition of the land and the statutory authority having known this fact yet proceeded to exercise statutory power and initiated the process of acquisition. Does this constitute legal mala fides?'

In para 26 of the report it is observed:

'Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context 'in good faith' means for legitimate reasons'. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colorable exercise of power or fraud on power and the exercise of power is vitiated. If. the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides.'

The Supreme Court further observed:

'In Municipal Council of Sydney v. Campbell 1925 A.C. 338 it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab v. Gurdial Singh, : [1980]1SCR1071 acquisition of land for constructing a grain market was challenged on the ground of legal mala fides. Upholding the challenge this Court speaking through Krishna Iyer, J., explained the concept of legal mala fides in his hitherto inimitable language, diction and style and observed as under (at p. 321 of A.I.R.)

'Pithily put, bad faith which invalidates the exercise of power - some times called colorable exercise or fraud on power and often times overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but the irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which power is vested the Court calls it a colorable exercise and is undeceived by illusion. In a broad blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated: 'I repeat.... that all power is a trust - that we are accountable for its exercise - that from the people, and for the people, all springs, and all must exist.'

The Supreme Court, therefore observed:

'After analysing the factual matrix, it was concluded that the land was not needed for a Mandi which was the ostensible purpose for which the land was sought to be acquired but in truth and reality, the Mandi need was hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of the statutory engine. The notification was declared invalid on the ground that it suffers from legal mala fides. The case before us is much stronger, far more disturbing and unparalleled in influencing official decision by sheer weight of personal clout.'

32. As the facts, which are not controverted and which are inter-linked and complete a chain, show that the power, in this case, is exercised for extraneous and irrelevant considerations and therefore, it is unquestionably a colorable exercise of powers and thus, exercise of powers is vitiated. It may be stated that the power was also exercised not only for extraneous, irrelevant but non-germane considerations in the present case. Therefore, we are of the opinion that the power to acquire the land of the petitioners was exercised for extraneous and irrelevant purpose and it was in colorable exercise of powers, namely; to satisfy inner desire of the respondent No. 2 to prevent the real owner of the property from enjoying it. We cannot forget that the question as to the existence of mala fides on the part of the respondent No. 1 or the respondent No. 2 having misused their powers and in colorable exercise of their powers is entirely a question of fact. In this case, the totality of the circumstances as hereinabove set-out especially when they are not controverted, leads to only one conclusion that legal mala fides are established by the petitioners in this case.

33. In the result, we accept the submissions of Shri S.A. Deshmukh, learned Counsel for the petitioners that the notification under section 4(1) of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966, was bad in law and in consequence, the Award passed by the respondent No. 3 was illegal. Therefore, the petitioners are entitled to the restoration of the land by removing the encroachments, if any.

34. It is true that as contended by Shri Bedre, learned Counsel for the respondent No. 2 that although the award was passed in 1976, the petition isfiled in 1992. But, it cannot be contended that the petition filed after 14 years is liable to be dismissed on the ground of delay and laches. It may be stated that it is not an inflexible rule that whenever there is delay, the Court must necessarily refuse to entertain the petition filed after a period of three years or more which is normal period of limitation for a suit. As observed by the Division Bench of this Court in N.L. Abhyankar v. Union of India 1995 (I) M.L.J. 503:

'The Rule which says that the Court may not inquire into the belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed in the facts and circumstances of each case. 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 whether 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.'

It may be stated that in the instant case the respondent No. 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 the respondent No. 2 in fact issued a public notice inviting objections to the modification in the development plan in 1993. The petitioners have in fact when realised the possibility of respondent No. 2 taking steps for changing or modifying the development plan to the extent of their land protested and has 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 the respondent No. 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 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 the respondent No. 2 has not raised the contention of delay and laches in the first affidavit in reply filed on 29-6-1996. It is only in the additional affidavit in reply on 28-4-1998 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 the respondent No. 2 is entitled to raise this contention during the course of arguments.

35. It is true that in 1997(I) M.L.J. 470, this Court while dealing with a petition challenging the legality of a notification and declaration under sections 4 and 6 of the Land Acquisition Act, respectively, has held that such challenge shall be made within a reasonable time and if it is not so done the petition is liable to be dismissed. In the present case, the facts are quite distinct. The quashing of entire action right from the publication of the notification under section 4(1) of the Act is founded on the point of legal malafides. Therefore, we do not think that authority is of any help to the respondent No. 2. Another case relied on by the respondent No. 2 is reported in A.I.R. 1973 S.C. 1317. That decision is of no help to the respondent No. 2. In the present case the respondent No. 2 has in fact did nothing except by passing resolution for modification of the public purpose for which the land was acquired rather than actually making 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 extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. Since the petitioners have been successful in establishing the plea of legal malice as against the respondent No. 2, we think that the perpetual illegal action which has been causing substantial injustice to the petitioners is required to be remedied by invoking the extra ordinary jurisdiction under Article 226 of the Constitution of India in favour of the petitioners. It cannot be overlooked that while exercising the extra-ordinary 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. The father of the petitioners during his life and after his death, the petitioners have been knocking the doors of justice but justice is denied to them even though the respondent No. 2 exhibited its intention not to use the land for public purpose but to retain possession without developing the land during the last half decade and instead sought to change the purpose to commercial purpose so as to gain wrongful and illegal benefits. It cannot be said that the petitioners conduct was anyway blame-worthy in causing delay or laches in filing the writ petition. On the contrary, the conduct of the respondent No. 2 is found to be not bona fide in acquiring the land of the petitioners. It is in these circumstances we think that although apparently there is delay in filing the writ petition, that by itself is not sufficient to throw the petition without giving equitable relief to the petitioners. If we refuse to entertain the writ petition merely on the ground of delay and laches, as a matter of fact it will be total injustice to the petitioners. There cannot be a mechanical way of dealing with the rights of the parties while exercising the powers under Article 226 of the Constitution of India. We do not desire those things to happen. We, therefore, do not find any merit in the submissions of the learned Counsel for the respondent No. 2 that the writ petition is liable to be dismissed on the ground of delay and laches.

36. Shri S.A. Deshmukh, learned Counsel for the petitioners, urged that the petitioners are also entitled to restoration of the land under the provisions of the 1973 Government Resolution. In this regard he relies on the decision of this Court in : AIR1997Bom237 delivered by one of us (A.D. Mane, J.,). The 1973 Resolution, the validity of which is upheld by the learned Single Judge and Division Bench of this Court and also by the Apex Court, provides that if the land acquired is not utilised for the purpose for which it was acquired within a period of three months from the date of taking over possession thereof, the land owner is entitled to the restoration of the land from the Collector. In the present case, it is urged that the land although was acquired in 1976, has not been utilised for the same purpose for which it was acquired, namely; construction of the school building and playground.

It is emphasized that the intention of the respondents was never to construct the school building or playground. Therefore, the land has become vacant under the provisions of 1973 Resolution and therefore, the petitioners have become entitled to its restoration. It may be stated that the 1973 Resolution contains instruction of the Government regarding restoration of the land acquired, in the event of non-use for a period of three years, to the original owner. It is the policy of the State Government under the instructions contained in the 1973 Resolution that the acquired land should be utilised for the purpose for which it was acquired within a period of three years from the date of acquisition or in case it is not likely to be utilised for the purpose for which it was acquired within a period of three years, the acquiring body shall restore the possession. If the acquiring body fails to utilise the land within period of three years form the the date of taking over possession thereof, it cannot be permitted to change the purpose. In the present case it does not appear that the petitioners have made any representation to the Collector who is the competent authority to exercise the powers under the 1973 Resolution for the restoration of the land in question and therefore, in the absence of any such representation having been made by the petitioners, it is not possible to accept the contention of the learned Counsel for the petitioners that the petitioners are entitled to restoration of the land merely because the land was not utilised for the purpose for which it was acquired within a period of three months. It is quite a separate remedy which is available to the petitioners for restoration of the land under the 1973 Resolution, We, therefore, do not find force in the submissions of the learned Counsel for the petitioners that this Court would be justified in restoring the land to the petitioners merely because the land in question is not utilised for the purpose for which it was acquired within the stipulated period.

37. In the result, we allow the writ petition and pass the following order: