JUDGMENT
A.P. Shah, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the acquisition of a plot of land hearing Survey No. 82/1 plus 2313 admeasuring 30 1/4 gunthas situated at Taloja, Taluka, Panvel, District Raigad under the Land Acquisition Act, 1894.
2. Briefly stated the facts giving rise to the present petition are as follows: The land bearing Survey No. 82/1 plus 2313 which is the subject matter of this petition originally held by one Shri Tambat as a tenant who became the deemed purchaser under Section 32G of the Bombay Tenancy & Agricultural Act, 1948 by paying purchase price to his landlord. Sometime in 1967. N.A. permission was granted lo Shri Tambat by the Collector. Kolaba for residential user of the land. On 14th July. 1969. Shri Tambat entered into an agreement for sale with the petitioner in respect of the said land. It seems that the petitioner secured permission from the Industries Commissioner. Government of Maharashtra to start a small scale industry. Pursuant to this permission, the petitioner started work of erection of factory building on the said land. In the meanwhile, the Commissioner, Bombay Division, had published a notification on 3rd February, 1970 in accordance with the provisions under Section 4 of the Land Acquisition Act on being satisfied that the land specified in the schedule annexed to the notification are likely to be needed for a public purpose viz. for the planned development and utilisation of the said lands in the Trans Harbour, Panvel and Trans Thane Creek area for industrial, Commercial and Residential purposes. The lands referred to in the schedule cover 86 villages situated within the Districts of Thane and Kolaba. The land of the petitioner was also covered under the notification. The notification under Section 4 was followed by a declaration under Section 6 published on 20th March, 1971. It was stated in Section 6 declaration that it is expedient in the public interest that the area adjoining city of Bombay should be developed as a site for the new town. The notification included the area covered by 86 villages. By a subsequent notification dated 16th August, 1973, 9 more villages situated within the Thane and Kolaba Districts were included in the declaration.
3. On 26th February, 1971, the Collector, Kolaba issued a notice to the petitioner under Section 45(i)(b), (iii) and 45(a) of the Maharashtra Land Revenue Code on the ground that the construction was made in breach of the N.A. permission. The Collector by his order dated 29th October, 1971 further directed the petitioner to remove the structure and also levied penalty of Rs. 300/- and further Rs. 30/- per day in case removal is not effected. The petitioner preferred an appeal against the order of the Collector dated 29th October, 1971 to the Commissioner. Bombay Division, Bombay. The Commissioner, Bombay Division, Bombay, rejected the appeal filed by the petitioner. Thereafter, the petitioner approached the State Government in revision under Section 256 of the Maharashtra Land Revenue Code against the order of the Commissioner, Bombay Division, Bombay and requested to regularize the N.A. use. In the revision application the petitioner also made a prayer for the release of the land from the acquisition under Section 48 of the Act. The revision application was heard by the then Revenue Minister and the same was rejected by him on 2nd June, 1978.
4. Nearly four years after the rejection of the revision application, the petitioner filed an application for review of the order dated 2nd June, 1978. The said review application was heard by the Officer on Special Dui\ who by his order dated 30th April, 1982 allowed the review application and directed the Collector to regularize the N.A. user for industry and further directed that the land should be released from the acquisition.
5. On 22nd August. 1986, the Special Land Acquisition Officer issued notice to the Petitioner under Section 9(3) of the Act as an interested person and called upon him to state his claim to the compensation of the acquisition of the land. Thereafter, the award was made on 14ih September, 1986. An intimation thereof under Section 12(2) of the Act was duly served on the petitioner. On 9th November, 1987, a notice for possession was also given to the petitioner. Thereafter, the petitioner has moved the present petition impugning the legality and validity of the acquisition proceedings.
6. We have heard Mr. Shah, learned Counsel for the petitioner and Mr. Gangal and Mr. Sawant, learned Counsel for the respondents. The main contention of Mr. Shah is that, it was not open for the Special Land Acquisition Officer to make the award on the basis of the notification under Sections 4 and 6 of the Act in view of the clear direction issued by the Officer on Special Duly under Section 48 of the Act for releasing the land of the petitioner from the acquisition. On the other hand, Mr. Gangal and Mr. Sawant contended that the said order of the Officer on Special Duty was wholly without jurisdiction and a nullity. Therefore, the Land Acquisition Officer was right in proceeding with the acquisition proceedings and passing of the award under Section 12 of the Act. There is hardly any dispute that the land of the petitioner is covered by notifications issued by the Government under Sections 4 and 6 of the Act. As per the said notifications, the land is needed for development of a new township. The petitioner applied for releasing the land from acquisition under Section 48 of the Act. The application was rejected by the Revenue Minister. The petitioner however filed a review application for claiming very reliefs which were already denied by the Revenue Minister. Normally, such review application should have been heard by the same Minister or his successor in office. Strange enough, the review application was placed before the Officer on Special Duty for disposal. It is clearly seen from the record produced by the respondents that the Officer on Special Duty was empowered with only limited number of matters mainly pertaining to disputes arising out of the Land Revenue Code. He had no power to release any land from the acquisition under the Land Acquisition Act. In the case of Mr. Prakash Vasudeo Deodhar and Ors. v. The State of Maharashtra and Ors. Decided on 28th April, 1992 the Division Bench held that it is not left to any officer of the Government to determine whether land should be withdrawn from the acquisition and such a declaration is possible only at the behest of the Commissioner who has published notification under Section 4 and Section 6 of the Land Acquisition Act, and the declaration must be published in the same manner as the earlier notifications under Section 4 and Section 6 are published. The Division Bench also observed that it is incumbent upon the Government to published notification in the official gazette while exercising powers under Section 4 and Section 6 of the Land Acquisition Act and once the proceedings have started after observance of the requisite mode, then it is mandatory for the Government to follow the mode while withdrawing the land from acquisition. Thus, there is no doubt to our mind that the officer on special duty was acting without any authority in directing the release of land from the acquisition. It is also a mystery as to how the review application came to be placed before the Officer on Special Duly. The respondents have produced the lists of matters which were assigned to the Officer on Special Duty during his entire tenure. There is no mention of the review application filed by the petitioner. Thus, there is a serious doubt as to whether the matter was properly assigned to the Officer on Special Duty. That apart, there was a gross delay of four years in filing the review application. No case whatever was made out for exercising power of re view. Under these circumstances, the order of the Officer on Special Duty is per say illegal, void and without jurisdiction.
7. Mr. Shah, strenuously urged that even a void order passed by an administrative authority is binding on all the concerned parties unless the order is set aside or quashed by the appropriate Court. Mr. Shah urged that such an order will intact be effective inter parties until it is successfully avoided or challenged in higher forum. He placed heavy reliance on the decision of the Supreme Court in the case of State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) and Ors. . Our attention was drawn to the following observations in paragraph Nos. 6 of the judgment.
6…In our opinion even a void order or decision rendered between parties cannot be said lo be non-existent in all cases and in all situations. Ordinarily, such an order will, in tact be effective inter parties until it is successfuly avoided or challenged in higher forum. Mere use of the word “void” is not determinative of its legal impact. The word “void” has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can he avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise and in this case, the only complaint about the initiation of the suo motu proceedings by Board was, that it was not initiated on intimation by the State Land Board about the non-filing of the statement as required by Section 85(7) of the Kerala Land Reforms Act. In our opinion, this is no I a case whore the infirmity is fundamental.
8. There cannot he any quarrel with the proposition that the court will treat an administrative act or order as invalid only if a right remedy is sought by the right person in light proceedings. Even a void order rendered between the parties cannot be said to be non existent in all cases and in all situations. The question is what are the right proceedings in which the validity of the act or order can be challenged. It may be challenged directly, as in proceedings for, certiorari to quash it or for a declaration dial it is unlawful but it may also be challenged in collateral proceedings. In Wade’s Administrative Law (Seventh Edition on page 321) several instances are quoted where the older is permitted to be challenged in collateral proceedings by way of defence e.g. a local authority may plead the invalidity of its own repairs notices in resisting tenants applications for grants lo meet the costs of compliance or the invalidity of a local planning authority’s enforcement notice may be pleaded in defence to a criminal charge of disobedience to it. Of course, there arc number of situations in which such challenge may not be allowed to be raised in collateral proceedings. For instance, where an order was made within jurisdiction but was vitiated by mere error on its face. Next come cases where it is held that some statutory remedy, such as a right of appeal, is the only remedy available. There may also be cases where, although there is no special statutory remedy, it would be contrary to the scheme of the Act lo allow the validity of an order to be disputed collaterally in enforcement proceedings. It seems possible that there may be good grounds for disallowing collateral challenge even in cases of breach of the principles of natural justice. In the opinion of the learned author, the correct conclusion is probably that there can be no hard and fast rules for determining when the court may or may not allow collateral challenge.
9. The position in relation lo collateral attack s summarized in DeSmith’s Judicial Review of Administrative Action (Fifth Edition) as follows:
1. Except possibly for a decision which is clearly invalid on its face, all official decisions are presumed to be valid until impugned by a court of competent jurisdiction.
2. An individual should in principle be able to rely on as a defence in collateral proceedings before an appellate body, any invalidity, whether or not the source of invalidity is alleged to arise out of a jurisdictional or non-jurisdictional error (or whether the decision or instrument is “void” or “voidable”).
3. To avoid “cumbrous duplicity of proceedings”, that challenge should where possible take place in the forum in which it is made, without adjournment to enable an application lo be made for judicial review.
4. In some situations collateral challenge may not be permitted on the ground that the particular proceedings arc inappropriate to decide the matter in question (for example, where an allegation of procedural invalidity is made is a magistrate’s court, or evidence is needed to substantiate the claim, or where the decision-maker is not a party lo the proceedings, or where the claimant has not suffered any direct prejudice as a result of the alleged invalidity).
10. In the case like the present one where, infirmity is so fundamental it is permissible for the authorities to raise the issue in respect of the void order in collateral proceedings. In fact, the Supreme Court has clearly indicated that there are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. If the order is patently without jurisdiction, the officer concerned has misused his position to favour a party, such an order will be open for challenge even in collateral proceedings. We have, therefore, no hesitation in rejecting the submission advanced by Mr. Shah, the learned Counsel for the petitioner, that the respondents cannot question the order of the Officer on Special Duty, in the present proceedings. The matter can be looked from another angle. The petitioner by this petition is in fact asking this Court to enforce the order passed by the Officer on Special Duty. It is well settled that the jurisdiction under Article 226 is a discretionary jurisdiction and it is exercised to advance the cause of justice. The Court will be within its right in refusing to give effect to patently illegal and void order.
11. Mr. Shah next contended that the petitioner’s land is liable to be released from the acquisition as per the policy of the Government. He placed heavy reliance on the letter issued dated 11th May, 1971 by Under Secretary to Government of Maharashtra. In our opinion, the petitioners’ case is not covered by the policy decision which obviously refers to the user of the land as on the date of the notification under Section 4. It is an admitted position that the petitioner started construction of his factory after notification under Section 4 was issued. The construction started by the petitioner was in violation of N.A. permission granted in respect of the land. Therefore, the Collector had directed to remove the construction under the provisions of the Bombay Land Revenue Code. In these circumstances, the argument of Mr. Shah based on the policy decision contained in letter dated 11th May, 1971 must be rejected.
12. In the result, petition fails. Petition is dismissed. No Order as to costs.
13. On oral request of Mr. Shah, the operation of this order is stayed for a period of ten weeks subject to condition that before moving the Supreme Court, the petitioner shall give at least a week’s notice to the respondents.