Bhalchandra Datey & Ors vs State Of Maharashtra & Ors
2011 Latest Caselaw 128 Bom

                                   1                  WP 2806.05
                                                                       Kambli


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            O.O.C.J.




                                                                   
                 WRIT PETITION NO.2806 OF 2005




                                           
                              ...

Bhalchandra Datey & Ors. ...Petitioners v/s.

State of Maharashtra & Ors. ...Respondents ...

Mr.Y.S.Jahagirdar, Sr.Advocate with Mr.V.V.Joglekar i/b Nitin Mulye for the Petitioners.

Mr.G.W.Mattos, AGP for Respondents Nos. 1 to 5.

Mr.Kamal Bulchandani with Mr.Arun Mehta and Ms.Payal i/b M/s.Akshar Law for Respondent No.6.

Mr.P.G.Sawant for Respondent No.7.

...

CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ

DATED: 28th November, 2011

JUDGMENT:(PER D.K.DESHMUKH, J.)

1. This petition has been filed basically challenging

the Notification dated 4-11-1993 issued by the Government

under Chapter VIII-A of the Maharashtra Housing and Area

Development Act.

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2. The relevant facts are, the subject matter of this

petition is a property bearing Plot No. 167/B Dadar-Matunga

Estate with a building standing thereon. Petitioners Nos. 1 &

2 are the owners of the property. Petitioners Nos.3 to 10 are

the tenants occupying the building which is standing on the

land. The Petitioner No.11 is the Builder with whom the

owners/Petitioners Nos. 1 & 2 have entered into an

agreement for development of the property. Respondents

Nos.1 to 5 are the authorities of the State Government.

Respondents Nos. 6 & 7 are also the tenants occupying the

building on the aforesaid plot. Mr.Jahagirdar, the learned

Sr.Counsel appearing for the Petitioners states that the

Petitioner No.5 has recently expired leaving behind two legal

representatives namely Ms.Pratima Lele and Mrs.Nilima

Gokhale. He further states that the Petitioners Nos.1, 2 & 11

will abide by the agreement between the original Petitioner

No.5 on one hand and the Petitioners Nos. 1,2 and 11 on the

other hand, in so far as legal representatives are concerned.

3. The present petition was filed basically for

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allowing the Petitioners to redevelop the property in view of

the settlement arrived at between them, though the property

was acquired under Chapter VIII-A of the MH& AD Act for the

purpose of its redevelopment. In so far as the acquisition

proceedings that were taken up for acquisition of the property

and subsequent developments are concerned, they have all

been narrated in the affidavit of one Mr.Ganesh Rathod,

Under Secretary, Housing Department, Government of

Maharashtra dated 7th July, 2005. Paragraphs 2 to 8 of that

affidavit read as under:

"2. I say that the Petitioners who are the owners and tenants of the property known as Datey Bhavan situate at Plot No.167/B, Dadar-Matunga

Estate, Dadar(East), Mumbai, have filed the above captioned petition interalia, praying that they should

be allowed to redevelop the property in view of the settlement arrived at between them, notwithstanding the acquisition of the property under Chapter VIII A of

the Maharashtra Housing and Area Development Act, 1976. The Petitioners have also sought the quashing of the Government Resolution dated 26th April, 1989 (which is annexed as Exhibit C1 to the petition). I say that as regards the said prayers of the Petitioner, I

have to respectfully say and submit as under:

3. I say that to solve the problem of the cessed buildings belonging to Category-A in the city of Mumbai, Chapter VIII A was inserted in the MHAD Act, 1976 some time in the year 1986. I say that under Section 103 B of the said Chapter VIII A, a

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Society comprising of 70% of the tenants/occupants in a cessed building can approach the Respondent No.3 Board to move the State Government to acquire

the land together with the existing building in the interest of its better preservation or for reconstruction

of a new building in lieu of the old one and intimate their willingness to pay the amount of such acquisition. I crave leave to refer to and rely upon the provisions of Chapter VIII A as and when required.

4. I say that a proposal was received from the Respondent No.3 by the State Government based on the request of the society of the tenants/occupiers. The Government had passed a Resolution and

sanctioned the proposal for acquisition of the land mentioned therein. I say that pursuant to the said

Resolution, the statutory process under the said Chapter was followed for acquisition of the property in question and ultimately a notification under Section

93(5) was issued by the Special Land Acquisition Officer, as a consequence of which the property has vested in the MBRRB.

5. I say that the provisions of Chapter VIII A are a subject matter of challenge before the Hon'ble

Supreme Court of India in the matter of the Property Owners Association Vs.State of Maharashtra and others. I say that the Civil Appeal has now been

directed to be placed before a Constitution Bench of the Hon'ble Supreme Court of India. I say that though the acquisition of the property has not been stayed. However, the State of Maharashtra and the MHADA have been restrained from taking over possession of

the property and carrying out any redevelopment. I crave leave to refer to and rely upon the orders passed by the Hon'ble Supreme Court of India.

6. I say that though the final notification under Section 93(5) has been issued, no steps can be taken transferring the said property to the Society

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of the tenants/occupiers so as to facilitate the work of reconstruction or redevelopment. I say that therefore as of today, there is a Status quo in respect of the

properties which have been acquired under Chapter VIII A of the said MHAD Act.

7. I say that the Petitioners had challenged the said acquisition by filing a Suit in the Hon'ble City Civil Court in which an interim order came to be

passed that Status quo should be maintained. Copy of the said order is annexed as Exhibit -1 to the petition. I say that in the mean time, it appears that the Petitioners who are the owners of the property have acquired the consent of 70% of the tenants and

have therefore approached the Respondent Nos.2 and 3 for redevelopment of the said property. I say

that it appears that save and except two tenants who are respondents to the above petition, the rest of the tenants have consented to the Redevelopment

Scheme to be carried out by the Petitioner Nos. 1 and 2 who are the owners of the property. I say that the Petitioners No.1 and 2 have interalia entrusted the development rights to the Petitioner No.11. I say that

from the documents annexed to the petition, it appears that the said consenting tenants have

executed agreement with the Respondent No.11 whereby the Respondent No.11 is to provide them flats in the reconstructed building.

8. I say that since the acquisition under Chapter VIII A under Section-103 B thereof is triggered of by the request of the Society of the tenants to acquire property in question for better

preservation and reconstruction and in the instant case since the owner and 70% of the tenants have come forward for redevelopment of the property, the Petitioners have sought annulment of the acquisition proceedings on the said ground. I say that even after acquisition under Section 103 B, the property is to be transferred to the tenants Society. I say that in the

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instant case, the tenants and the landlords having come together though after the acquisition has been completed, I say that looking from a practical point of

view, the net effect, in my respectful submission, would be the same as the object of Chapter VIII A.

(emphasis supplied)

4. After this affidavit was filed, the Division Bench of

this court passed an order dated 8th July, 2005. That order

reads as under:

"The learned Counsel for the Petitioners has drawn

our attention to the additional affidavit filed by the Under Secretary, Housing Department, Government of Maharashtra dated 7th July, 2005. It is

incorporated in the affidavit that since the acquisition under Chapter VIII A under Section 103 B thereof is triggered off by the request of the Society of the Tenant to acquire property in question

for better preservation and reconstruction and in the instant case since the owner and 70% of the

tenants have come forward for redevelopment of the property, the Petitioners have sought annulment of the acquisition proceedings on the said ground.

It is also mentioned that after acquisition under Section 103 B, the property is to be transferred to the tenants Society. It is also incorporated that the tenants and the landlords have come together though after the acquisition has been completed.

2. The learned Counsel appearing rot eh Respondents prays for two weeks time to pass consequential orders by the Respondents. Mr.Jahagirdar, the learned Counsel appearing for the Petitioners submits that in case the land be

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acquired, no compensation shall be claimed by the Petitioners.

3. Adjourned to 29th July, 2005."

5. After this order was made, the State Government

passed an order dated 5th September, 2005 declining to

withdraw the Notification by which the property was acquired

for the reason that the Act does not confer any power on the

Government to withdraw the Notification for acquisition once it

is issued. On behalf of the Government reliance is placed on

the judgment of the Supreme Court in the case of State of

Kerala and ors. v/s. M.Bhaskaran Pillai and anr. (1997) 5

Supreme Court Cases 432, which lays down that once the

land is acquired and the possession of the land is taken, the

Government does not have power to delete that land from

acquisition. Thereafter, the petition was adjourned from time

to time. It is apparent from the record that the Petitioners

Nos. 1 & 2 who are owners of the property are desirous of

getting the property developed through Respondent No.11.

Petitioners Nos. 4 to 10, who are tenants, are also willing to

get the property developed through the Respondent No.11.

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Only Respondents Nos.6 & 7, who are also tenants, were

unwilling. However, now it appears that the Respondents

Nos. 6 & 7 have also decided to get the property developed

through the Respondent No.11. There is an understanding

separately reached between the Petitioner No.11 on one

hand and the Respondents Nos.6 & 7 on the other. All the

tenants had moved the Registrar for registration of the

Co.operative Society of the tenants. However, now all the

tenants have applied to the Registrar for withdrawal of their

proposal for formation of Co.operative Society. These facts

have been stated in the affidavit dated 1-11-2011 sworn by

the Petitioners Nos. 3, 4, 7, 8, 9 & 10. There are Minutes of

Order recording the understanding arrived at between the

Petitioner No.11 and Respondent No.6 and between the

Petitioner No.11 and Respondent No.7. Copy of the Minutes

of Order between Petitioners Nos.1, 2 & 11 and Respondent

No.6 is taken on record and marked "X" for identification.

Whereas copy of the Minutes of Order between Petitioners

Nos. 1, 2 & 11 and Respondent No.7 is taken on record and

marked "Y" for identification. Undertakings given in those

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Minutes of Order are accepted. It is clear from the affidavit of

the Petitioners dated 21-11-2011 as also Minutes at "X" & "Y"

that the owners of the property and all the tenants are now

unanimous in saying that they want to get the property

developed through the Petitioner No.11 and they are not

interested in forming a Co.operative society.

6. In this view of the matter, therefore, considering

what is stated on behalf of the Government in its affidavit

dated 7-7-2005, no useful purpose will be served by

continuing the property under acquisition. Because the

property was being acquired by the Government basically for

the benefits of the tenants.

7. The learned AGP appearing for the Government

stated that as clarified by the Government in its order dated

5th September, 2005, according to the Government it does

not have power to withdraw the property from acquisition, as

there is no such provisions in the Act and because of the

judgment of the Supreme Court in M.Bhaskaran Pillai's case,

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referred to above. In our opinion, however, it does not prevent

the court from setting aside the acquisition of the property if

the court finds that the purpose for which the property was

acquired itself will not be served or when the court finds that

the property was being acquired for the benefits of the

tenants, who do not want the property to be acquired for their

benefits. In view of the stand taken by the tenants and their

refusal to form a Co.operative Society, now the authorities

under the MHAD Act also will not be able to develop the

property according to the provisions of Chapter VIII-A of the

Act.

8. In this view of the matter, therefore, in our opinion,

this is a fit case where the Notification issued under the

MHAD Act for acquisition of the property is to be set aside, so

that the property can be redeveloped according to agreement

reached between the tenants, owners of the property and the

Petitioner No.11-Developer. In our opinion, therefore, the

petition can be disposed of in following terms:

(i) Notification dated 4-11-1993 at Exh.1 is set aside.

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(ii) As a consequence of setting aside of the acquisition,

the Respondent No.3 shall consider the application that

may be submitted for grant of NOC in accordance with

law.

(iii)Order in terms of Minutes at "X" & "Y".

(iv)Petition disposed of.

(Anoop V. Mohta, J.) (D.K.Deshmukh,J.)