Bombay High Court
Pratapsinh Shoorji Vallabhdas ... vs State Of Maharashtra And 5 Ors on 16 September, 2016
Bench: S.C. Dharmadhikari
Judgment-WP.2110.2014.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2110 OF 2014
1. Pratapsinh Shoorji Vallabhdas }
}
2. Dilipsinh Shoorji Vallabhdas }
}
3. Smt. Jyotsna W/o. Vikramsinh }
Shoorji Vallabhdas }
}
4. Smt. Jayalaxmi gopalji Virji }
Ganatra Damayanti Virji }
}
5. Damayanti Virji ig }
}
6. Kalyanji Aliaas Arunkumar }
Purshottam Bhanji }
}
7. Vasantkumar Purshottam }
Bhanji }
}
8. Saraswati, wife of Prahladrai }
Kheraj }
}
9. Damayanti, wife of Liladhar }
Kanji }
}
10. Mr. Raja babulal Majethia }
}
All adults, Indian Inhabitants }
having their address at Bhandup }
Estate, 707 Parmeshwari Centre, }
18 Dalmia Estate, Mulund West, }
Mumbai 400 080. } Petitioners
versus
1. State of Maharashtra }
through the Government Pleader, }
PWD Building, Ground Floor, }
High Court, Mumbai - 400 023. }
Page 1 of 92
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2. Deputy Collector, }
(Encroachment and Removal) }
and Competent Authority, }
having his office at Topiwalla }
College Building, Ground floor, }
Dr. Sarojini Naidu Road, }
Mulund (W), Mumbai - 400 080 }
}
3. Additional Collector }
(Encroachment and Removal) }
and Competent Authority, }
having his office at Industrial }
Assurance Building, First Floor, }
Opp. Churchgate Station, }
Mumbai - 400 020 }
}
4. Chief Executive Officer,
ig }
Slum Rehabilitation Authority }
(SRA), Having his office at Slum }
Rehabilitation Authority }
Building, Anant Kanekar Road, }
Bandra (E), Mumbai - 400 051 }
}
5. Mumbai Municipal Corporation }
Having its office at Mahapalika }
Marg, Fort, Mumbai - 400 001. }
}
6. Sai Chaya Co-op. Housing }
Society (Proposed), }
Through its Secretary, }
Sai Chaya Chawl, Anthony }
Church Road, Patkar Compound, }
Bhandup (W), Mumbai - 400 078 } Respondents
Dr. Milind Sathe - Senior Advocate with
Mr. Pradeep Thorat, Mr. Shailesh Poria,
Mr. Swapnil Gupte i/b. M/s. Hariani and
Co. for the petitioners.
Mr. Milind More - Additional Government
Pleader for respondent no. 1.
Mr. P. K. Dhakephalkar - Senior Advocate
with Mr. Jagdish G. Reddy (Aradwad) for
respondent no. 4.
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Mr. S. G. Surana i/b. Mr. Madhur Surana
for respondent no. 6.
CORAM :- S. C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
Reserved on 23 rd June, 2016
Pronounced on 16 th September, 2016
JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. Heard the learned counsel appearing for the parties. Rule.
Respondents waive service. By consent, Rule made returnable
forthwith.
2. Now a days, we find that the landholders/owners of huge
tracts of land in Mumbai City and Suburban Districts, leave them
open, unguarded, unprotected and unsecured, allow them to be
encroached and after they are encroached, structures are
erected, which are nothing but huts and slums, they go on
increasing, these and such other owners approach this court and
complain that they are not responsible for the plight of the
occupants of these slums. They are not responsible for
endangering and threatening public health and safety. Though
they neglect their own properties, but when their value in the
market increases and they command a huge price, these so called
owners resist acquisition of the land and assure the authorities
and the court that they would improve the lot of these slum-
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dwellers and rehabilitate them. Behind such owners are builders
and developers looking out for an opportunity to cash on and
exploit the potential of these huge lands. It is this modus
operandi which has brought about a situation of indiscriminate
and unregulated, uncontrolled construction activity especially in
the suburbs of Mumbai. The pressure on existing already
inadequate amenities, no breathing space, no playgrounds or
parks and overcrowding, congestion and total breakdown of
essential services. Those looking out for gains and profits have
nothing but a lip sympathy and the real intent is to somehow or
other get back these properties or obtain their release thereof
from acquisition. The State acquires them so that those
languishing in slums obtain a decent housing accommodation and
thereafter not only their life can be improved but public health
and public safety is equally protected. That is protected by
obtaining for such slum dwellers the basic amenities, from which
they were deprived for decades together. No inbuilt toilet, no
clean drinking water, no light, no ventilation, no roads, no health
care facilities till date, but all this can be provided with private
participation and their rehabilitation is the real purpose of this
acquisition. Such a measure and specially by the welfare State is
sought to be defeated by raising technical objections and
challenges.
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3. By this petition under Article 226 of the Constitution of
India, the petitioners pray for issuance of a writ of certiorari or
any other writ, order or direction in the nature thereof calling for
the records and proceedings in respect of acquisition of the area
of land, more particularly described in prayer clause (a) of the
writ petition leading to the issuance of a notification dated 3 rd
April, 2014 under the provisions of section 14(1) of the
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 (hereinafter referred to as "the Slum
Act") and upon scrutinising the same for its legality and validity,
legality, quash and set aside the same.
4. The next relief sought is of issuance of a writ of mandamus
or any other writ, order or direction in the nature thereof
directing respondent nos. 1 to 6 to follow the due process of law
and appoint the petitioners as Builders and Developers for
development of the slum on the entire area, more particularly
described in prayer clause (a).
5. Finally, a writ of certiorari is claimed to call for records and
proceedings in relation to a notice dated 7th March, 2012 issued
under the provisions of section 5 of the Slum Act and after
considering its legality and validity to quash and set aside the
same.
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6. These reliefs are sought in the following facts and
circumstances:-
7. The petitioners state that the competent authority of Kurla-
1 Sub Division issued Notification No. SLM. 1077/5280/G dated
30th June, 1977 under the provisions of Section 4(1) of the Slum
Act, inter alia, declaring the said land along with several of the
parcels of land in village Bhandup as "slum area". The petitioners
state that the area reflected against CTS No. 82 in the notification
was shown as 5414.4 square meters instead of 45,414 square
meters, which was the actual area. The petitioners state that the
fact that there has been error in notification dated 30th June,
1977, noticed by the petitioners at the time when one Milind
Nagar Co-operative Housing Society (proposed), a proposed
society of occupants of a portion of the said larger property
approached respondent no. 2 Deputy Collector requesting
respondent no. 2 to declare the entire said larger property as
"slum" instead of portion of land being 5414.4 square meters and
further requested to issue necessary corrigendum vide their
application dated 12th February, 2009 and 4th June, 2009 for
rectifying the area of said land in the notification dated 30 th June,
1977.
8. The petitioners state that it appears that by a letter dated
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8th February, 2009, respondent no. 6 approached the Deputy
Collector (Encroachment and Removal) and Competent
Authority, Bhandup i.e. respondent no. 2 with a request to declare
the said land admeasuring 3747.384 square meters as "slum" and
that the said land be acquired for the purpose of redevelopment.
9. The petitioners state that respondent no. 2 Deputy Collector
(Encroachment and Removal) and Competent Authority,
Bhandup forwarded the application to respondent no. 3
Additional Collector for initiating necessary steps to have the said
land declared as a "slum" and for acquisition of the same under
Section 14(1) of the Slum Act. The petitioner had, before that,
filed their objections to the undated application through its letter
dated 8th December, 2009 with respondent no. 2. The petitioners
brought to the notice of respondent no. 2 that the petitioners are
the owners of the said larger property including the said land and
that there appears to be a discrepancy in the notification dated
30th June, 1977 when only an area of 5414.4 square meters was
declared as "slum" instead of the actual area of 45,414.4 square
meters and also pointed out that Milind Nagar Co-operative
Housing Society (proposed) had applied to the Deputy Collector
for issuing a corrigendum in the larger interest of slums on CTS
No. 82 of village Bhandup. The petitioners stated that they have
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no objection if the said larger property of CTS No. 82 is declared
as a slum, however they have strong objection to any steps taken
towards acquisition of the said land under Section 14(1) of the
Slum Act. The petitioners also stated that the petitioner had
never received any communication/correspondence from
respondent no. 6, namely, Sai Chaya Co-operative Housing
Society (proposed) in respect of the redevelopment of said land
under the Slum Rehabilitation Scheme.
10.
The petitioners stated that thereafter on 29 th June, 2011
respondent no. 1 issued a notification under the provisions of
Section 4(1) of the said Slum Act, inter alia, declaring CTS
Nos.82, 82A, 82/2 to 82/5, having an area admeasuring
3747.384 square meters, out of the said larger property, as slum.
11. The petitioners state that respondent no. 2, thereafter,
issued notice dated 23rd February, 2012 under Section 14(1) of
the Slum Act to the petitioners and 17 others, thereby intimating
that hearing would be held on 1st March, 2012 in the matter of
acquisition of lands, namely CTS Nos. 82, 82A, 82/2 to 82/5 of
village Bhandup, taluka Kurla, Mumbai Suburban District. The
petitioners thereafter filed their objections dated 1st March, 2012,
inter alia, stating that the petitioners are the owners of the lands,
namely CTS Nos. 82, 82A, 82/2 to 82/5 and the petitioners intend
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to develop the larger property including the said land. The
petitioners also called upon respondent no. 2 to furnish them a
copy of the letter dated 19th January, 2012 of the Additional
Collector as well as documents submitted by respondent no. 6 to
enable the petitioners to give their detailed and comprehensive
say in the matter.
12. Respondent no. 2 issued notice dated 7 th March, 2012
purported to be under Section 5 of the Slum Act to the petitioners,
inter alia, stating that lands bearing CTS Nos. 82, 82A, 82/2 to
82/5 are declared as "slums" by notification dated 29th November,
2011. Respondent no. 2 sought information from the petitioners
regarding repairs and/or management of the lands bearing CTS
Nos. 82, 82A, 82/2 to 82/5 and called upon the petitioners to
reply to the said notice within 15 days. From a reading of the
notice, it appears to be issued under the provisions of Section
5C(1) of the Slum Act, which provides that at least 30 days time
has to be granted for executing works of improvement. However,
the notice of 7th March, 2012 called upon the petitioners to
respond within 15 days, failing which, further action under
section 6(1) will be initiated. The petitioners further state that it
is pertinent to note that as the matter was closed for report under
section 14(1) on 20th March, 2012, namely, within 13 days of
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issuance of notice under Section 5(1) and hence the petitioners
could not even file their say to the notice under section 5C(1) of
the Slum Act.
13. The petitioners, on 20th March, 2012, filed their detailed
written say dated 13th March, 2012 in the proceedings before
respondent no. 2 in Application No. S.R. 49 of 2012 filed by
respondent no. 6 Sai Chaya Co-operative Housing Society
(proposed). The petitioners reiterated the grounds as stated by
them in their written reply dated 8th December, 2009, once again
pointing out that the petitioners are the owners of the said land
and that the petitioners themselves intend to develop the entire
said land. The petitioner also pointed out the fact that the
applicant therein, namely respondent no. 6 society had admitted
that their chawls were unauthorised.
14. The petitioners state that respondent no. 2, thereafter,
prepared survey report dated 30th April, 2012 and forwarded a
copy of the same to respondent no. 3, inter alia, explaining the
status of the land admeasuring 3747.384 square meters required
to be acquired for respondent no. 6 society (proposed). The
petitioners were not intimated about the preparation of the report
and were not aware of the same until the same was obtained
under the Right to Information Act, 2005. The petitioners state
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that according to the said report, the land admeasuring 3747.384
square meters falls in residential and special industrial zone and
is reserved for housing of dis-housed in the revised sanctioned
development plan for the city of Mumbai. The petitioners state
that respondent no. 2 mentions in his report that the petitioners
intend to develop the said land, however, the slum dwellers are
not co-operating with them. Despite this, respondent no. 2,
relying on the oral statement on behalf of respondent no. 6
society (proposed), despite the clear willingness of the petitioners
and in contravention of provisions of Section 3(B), made a
recommendation that there appears no hurdle in acquisition of
the said land.
15. The petitioners state that, thereafter, respondent no. 3
issued notice dated 28th May, 2012 under the provisions of
Section 14(1) of the Slum Act, inter alia, calling upon the
petitioners and 16 others along with other interested persons to
submit their objections to the acquisition of the land admeasuring
3747.384 square meters under the Slum Act within 15 days from
the publication of the notice. The petitioners filed their reply on
22nd June, 2012, inter alia, objecting to the acquisition of the said
area of 3747.384 square meters out of the total area of 45,414.4
square meters on several grounds, chiefly on the ground that the
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petitioners being the owners of the said land, intended to develop
the said land along with the entire larger property. The
petitioners also made the prayer to direct respondent no. 6 to co-
operate with them in consolidated development of the entire CTS
No. 82 along with the said land.
16. The petitioners state that they filed their additional written
say dated 17th July, 2012, the receipt of which is also
acknowledged by Chief Promoter Pratap Laxman Sawant before
respondent no. 3, inter alia, reiterating that the petitioners are
the owners of the said land and that the petitioners themselves
intended to develop the entire land. The petitioners also pointed
out that the purported notice issued to the petitioners is bad in
law and without complying with the provisions of section 5(1) of
the Slum Act, the proceedings under section 14(1) for acquisition
had been wrongfully initiated. The petitioners further state that
they filed pursis before respondent no. 3 on 12th September, 2012
contending that their written reply dated 20 th June, 2012 and
further reply dated 17th July, 2012 be considered as petitioners'
written submissions and arguments.
17. The petitioners state that respondent no. 3 thereafter
submitted their letter/report dated 4th October, 2012 to the
Principal Secretary, Housing Department, of respondent no. 1
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regarding acquisition of lands bearing CTS Nos.82, 82A, 82/2 to
82/5 and admeasuring 3747.384 square meters under Section
14(1) of the Slum Act making one sided recommendation that
considering the facts there appears no obstacle in acquisition.
18. The petitioners state that respondent no. 3 sent its
letter/report dated 2nd November, 2012 to the Desk Officer,
Housing Department of respondent no. 1. On perusal of the letter,
it appears that respondent no. 3 had submitted the proposal on 4 th
October, 2012 to respondent no. 1 and whereby, respondent no. 1
had sought clarification on 13 issues and required respondent
no.3 to submit revised proposal. Respondent no. 3 has stated in
the letter that the society, namely, respondent no. 6 has
submitted its clarifications on issues, on 21 st October, 2012 and
accordingly the letter/report is submitted. The petitioners state
that no clarification was ever sought from the petitioners. The
letter/report further mentions that newspaper advertisement
with respect to property, namely, CTS Nos. 82, 82A, 82/2 to 82/5
admeasuring 3747.384 square meters had been published in two
newspapers. The petitioners state, on perusal of clause (1) of the
said report dated 2nd November, 2012, that it has been clearly
mentioned that land owners, namely, the petitioners have
informed that they are ready to develop the said land under the
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Slum Rehabilitation Scheme. The petitioners state that in fact
respondent no. 6 and its members were not co-operating with the
petitioners for redevelopment of the said land. Respondent no. 3
once again made the one sided recommendation in contravention
of provisions of section 3(B) of the Slum Act stating that there
appears to be no objection in acquisition of the said land.
19. The petitioners state that, thereafter, respondent no. 4 the
Chief Executive Officer, Slum Rehabilitation Authority (SRA)
issued notice dated 14th March, 2013 informing the petitioners
that hearing had been fixed on 22 nd March, 2013 for considering
the objections to acquisition of land bearing CTS Nos. 82, 82A,
82/2 to 82/5 admeasuring 3747.384 square meters. The
petitioners submitted their written say dated 20th April, 2013 to
respondent no. 4 reiterating the same set of facts as stated in the
written say submitted before respondent no. 2.
20. The petitioners further state that respondent no. 6 Society
also filed its reply dated 17th May, 2013 before respondent no. 4.
The petitioners filed their rejoinder dated 23 rd May, 2013 to the
reply of respondent no. 6 society, inter alia, stating that members
of respondent no. 6 society were encroachers on the land and the
petitioners had not constructed any structure on the said plot
admeasuring 3747.384 square meters as alleged by respondent
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no. 6. The contention of respondent no. 6 that it had already
entrusted the development of the said property to a builder
clearly shows the intention of respondent no. 6 society to
redevelop the land through some other private builder, thus
depriving the owners/petitioners of their right and entitlement to
undertake redevelopment of the said land. The petitioners once
again reiterated their willingness to redevelop the entire land and
stated that the petitioners are already carrying on redevelopment
of certain adjoining lands which are declared as slum and hence,
the said land can also be redeveloped under the Slum Act by the
petitioners.
21. The petitioners state that respondent no.4, thereafter,
submitted a letter/report dated 11th June, 2013 to the Principal
Secretary, Housing Department of respondent no. 1 regarding
acquisition of lands bearing Survey Nos. 82, 82A and 82/2 to 82/5
and admeasuring 3747.384 square meters under Section 14(1) of
the Slum Act, making one sided recommendation that the
members of respondent no. 6 are the protected hutment dwellers
and they have legal right to develop the said land.
22. The petitioners state that, thereafter, respondent no. 1
issued impugned notification dated 3rd April, 2014 with respect to
part of the said larger property bearing CTS Nos. 82, 82(A), 82/2
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to 82/5 admeasuring 3747.384 square meters under Section
14(1) of the Slum Act.
23. It is in the above facts and circumstances that the reliefs
prayed and referred above in details are sought.
24. An affidavit in reply has been filed on behalf of respondent
no. 4 SRA, in which, firstly, it is contended that it is doubtful
whether the present petitioners are the exclusive owners of the
said Bhandup estate. Relying upon a mutation entry of the year
1969, it is claimed that name of one Ratansi Karsandas and 18
others are shown in the record of rights. It is difficult to ascertain
whether all these are alive or dead. If the present petitioners are
the heirs of the deceased land holders, then, they ought to come
forward with definite proof. Presently, there is nothing on record
to show that any succession certificate or letters of
administration in respect of the Bhandup property has been
obtained. It is claimed that there are certain power of attorney
holders, but having found that the record reflects several names,
each one of them ought to have been joined as party petitioner
and if he/she is not alive, the persons claiming through or
succeeding them ought to be disclosed. Having not done so, there
is a cloud on the title of the petitioners, that on this short ground,
the writ petition deserves to be dismissed. Once the petitioners
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are claiming to be land holders of larger portion of the plot of land
CTS No.82 of village Bhandup, which itself would show that they
are not owners/holders of the total land. They cannot challenge
the acquisition notification of the said plot of land.
25. It is then contended that there are number of slum dwellers,
who are the affected parties, but they are not joined as
respondents to the writ petition. It is then claimed that this plot
of land is already vested in the State and in view of the request of
the slum dwellers and occupants, it was declared as a slum,
earlier. A large plot of land, namely, 25414.4 square meters has
been declared as slum area vide notification dated 30th January,
1977. However, the area under acquisition is 3747.384 square
meters from CTS Nos. 82/A/1A, 82/1 to 5. That has been again
declared as a slum vide notification published in the Government
gazette. That declaration of slum dated 30th June, 1999 and 10th
August, 2011 has not been challenged and until and unless it is
set aside, no relief can be granted to the petitioners.
26. It is then stated in the affidavit in reply that in pursuance of
the amendment by the Maharashtra Act No. XI of 2012 on 19 th
June, 2012, if the Chief Executive Officer has submitted report in
order to carry out the development under the Slum Rehabilitation
Scheme, including the adjoining or surrounding area, the
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Government can acquire the land under Section 3(D)(c)(i) of the
Slum Act on the basis of representation to the Chief Executive
Officer of SRA.
27. It is further submitted that the land has already been vested
with the State Government and the State of Maharashtra is
having complete control over the said land due to notification
dated 3rd April, 2014 under Section 14(1) of the Slum Act. Upon
publication of the notification under Section 14(1), the land
completely vests in the Government and the owners are having
right to claim compensation only when the acquisition is for
public purpose.
28. It is further submitted that there are in all 221 slum
dwellers. Out of the said 221 slum dwellers, 210 slum dwellers
have given consent to develop the said property. Therefore,
majority of the slum dwellers are interested in developing the
said property.
29. It is further submitted that during the period of 32 to 35
years, the landlords did not look after the basic amenities and
facilities for the slum dwellers. Therefore, there was no
alternative before the slum dwellers but to develop the said
property through their own society. There are more than 90%
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hutment dwellers who were behind the developer to redevelop the
property. The present petitioners have not made them party in
the present petition and seeking the order against the wish and
will of the said majority of the hutment dwellers.
30. It is further submitted that the petitioners themselves have
admitted in the petition that the competent authority - Kurla-1
Sub-Division issued Notification No. SLM-1077/5280/G on 30th
June, 1977 under the Slum Act. In spite of the declaration of the
slum, the petitioners have not challenged the declaration of the
slum before the appropriate authority.
31. It is stated that the office of Deputy Collector
(Encroachment and Removal) as well as the competent authority
had raised queries to the petitioners and asked them that (i)
whether they have filed an appeal before the Slum Tribunal
challenging the notification of slum issued by the Government;
(ii) Further it was specifically asked that what amenities and
facilities were provided by them to the occupants of the said area
being the landlords/owners of the plot of land; (iii) whether
facilities of water tap, construction of gutters for passing sewers
and rain water is provided; (iv) whether provision of urinals,
toilet, public bathrooms are made; (v) whether the existing roads,
length and path have been properly made and fresh demarcation
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is done in order to make flooring etc.; (vi) whether the area is
properly leveled; (vii) whether there is a proper development of
garden, recreation ground, welfare centre, community hall,
school, dispensary, police station, fire brigade stations are
provided in the said area. However, there was no positive reply
from the petitioners.
32. It is further submitted that the petitioners were not having
any information and therefore, no satisfactory explanation was
given by the petitioners. The Chief Executive Officer perused the
report submitted by the Additional Collector and was satisfied
that the Additional Collector (Encroachment and Removal),
Eastern Suburban issued public notice on 28th May, 2012 to the
concerned land owners, also published the public notice on 2 nd
June, 2012 in the local news papers. Therefore, after thorough
inquiry, it is found that it will be proper and in the interest of
majority of occupants to acquire the land and therefore, he
submitted the report to the Government for the acquisition of the
said area dated 11th June, 2013. The Chief Executive officer
found that there were in all 221 huts and their family members
are residing in absolutely inhabitable and unhealthy conditions
and the landlords of the premises are not looking after the
interest of the occupants. No amenities and facilities are given for
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human habitation to those persons and therefore, the said area
admeasuring 3747.384 square meters was again declared as a
slum pursuant to notification dated 4th August, 2011.
33. It is further stated that it is also observed by the Chief
Executive Officer, on the basis of the report submitted by the
Additional Collector that out of 221 hut holders, 210 hut holders
have no objection for the Slum Rehabilitation Scheme.
Accordingly, said 210 hut holders have given their consent
letters for the scheme, that means, more than 95% hut holders
were in favour of the land acquisition.
34. It if further stated that the said Sai Chaya Co-operative
Housing Society applied to the Additional Collector
(Encroachment and Removal), Eastern Suburban on 27 th July,
2011 to acquire the said land for redevelopment. The said office
sent the proposal to the Deputy Collector (Encroachment and
Removal), Bhandup for inquiry and detailed report. The Deputy
Collector (Encroachment and Removal), Bhandup submitted
report to the Additional Collector (Encroachment and Removal),
Eastern Suburban on 30th April, 2012 after giving notice to land
owners under section 5(1) of the Slum Act. The Additional
Collector (Encroachment and Removal), Eastern Suburban issued
public notice in the local newspaper (Samna and DNA) dated 2 nd
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June, 2012. The notices were issued to all the concerned persons,
including the present petitioners. Hearings were conducted on
17th July, 2012, 17th August, 2012, 29th August, 2012 and 12th
September, 2012. The petitioners were present at the time of
hearing before the Additional Collector (Encroachment and
Removal), Eastern Suburbs. They raised their objection for land
acquisition. The main contention was they would develop the
land as owners. The Additional Collector (Encroachment and
Removal), Eastern Suburbs submitted report to the Government
about acquisition of the said land on 4th October, 2012.
35. It is further stated in the reply affidavit that in the Slum
Act, the basic provision in Section 14(1) was as follows:-
"To execute any work of improvement in relation to any
slum area or any building in such area or to redevelop any
clearance area, it is necessary that any land within
adjoining or surrounded by any such area should be
acquired."
36. The Slum Act has been amended by Maharashtra Act No.XI
of 2012 on 19th June, 2012. The amendment is as follows:-
"To execute any work of improvement or to redevelop
any slum area or any structure in such area, it is
necessary that such area or any land within adjoining
or surrounded by any such area should be acquired."
37. To acquire the land for the rehabilitation of the slum
dwellers, the amendment was made by Maharashtra Act No. VI of
1997 in section 14(1) of the Slum Act. The amendment is as
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follows:-
"Where on any representation from the Chief
Executive Officer, it appears to the State Government
that, in order to enable the Slum Rehabilitation
Authority to carry out development under the Slum
Rehabilitation Scheme in any slum rehabilitation
area"
38. To implement the slum rehabilitation scheme, the Chief
Executive Officer of SRA has been empowered to send
representation to the Government to acquire the land under
section 3(D)(c)(i) of the Slum Act. As such, the Government of
Maharashtra directed the Chief Executive Officer of SRA vide its
letter dated 15th February, 2013 to send the representation in
case of land acquisition cases which were forwarded by the
competent authority (Additional Collector) directly to the
Government. The Government forwarded 20 proposals to the
Chief Executive Officer of SRA for making a report about the
acquisition pursuant to the above said amendment.
39. It is further stated that in the present case, the Chief
Executive Officer of SRA issued the notices under Section 14(1) of
the Slum Act to all the concerned persons. The notices were
served on concerned persons under Section 36 of the Slum Act.
The notice was issued to the petitioners on 14 th March, 2013. The
hearing was conducted on 22nd March, 2013, 6th April, 2013, 20th
April, 2013 and 17th May, 2013. Advocate Mr. Kakade was
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present on behalf of the petitioners on 22 nd March, 2013.
Advocate Mr. Tare was present on behalf of the petitioners on 6 th
April, 2013, 20th April, 2013 and 17th May, 2013. Advocate Tare
submitted objection of the landlords for the acquisition. The main
objections were as follows:-
(a) The land owners are willing to redevelop the said land
under Slum Rehabilitation Scheme. The SRA should give
necessary instructions to the Sai Chaya Co-operative
Housing Society to approach the landlords for
redevelopment.
(b) The Deputy Collector (Encroachment and Removal),
Bhandup has given notice dated 7th March, 2012 under
Section 5(1). The period to raise the objection was fifteen
days instead of thirty days.
(c) The notice under Section 14(1) by the Additional
Collector (Encroachment and Removal) has been issued
without compliance of the provisions and procedure under
section 5 of the Act.
40. In respect of the above objections, it is stated in the reply
affidavit that:-
(a) The application submitted by Sai Chaya Co-operative
Housing Society, along with the report of the Additional
Collector submitted to the Government was forwarded to
the SRA to send the report to the Government under section
14(1) of the Slum Act. Section 14(1) of the Slum Act has
been amended. The State Government can acquire the land
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for the Slum Rehabilitation Scheme on the basis of report of
the Chief Executive Officer.
(b) The Slum Act has been amended in 1997. As per the
amendment, Sections 4, 5, 6, 7, 8, 9, 10 and 11 of the Slum
Act have been deleted. To send the report to the
Government to acquire the land for the rehabilitation
scheme, the Chief Executive Officer is not required to issue
notice under section 5 of the Slum Act.
(c) To acquire the land for the implementation of the
rehabilitation scheme, the report of the chief Executive
Officer, SRA only has to be considered by the Government
as per amendment in the Slum Act in 1997.
(d) The Chief Executive Officer, SRA has issued notice in
writing to the petitioner and other concerned persons why
their land should not be acquired for the rehabilitation
scheme. The landlords failed to submit the scheme of
rehabilitation of slum dwellers to the Chief Executive
Officer, SRA. As such, to implement the scheme of
rehabilitation of slum dwellers, residing on the area which
has been declared (slum area) in 2011, the Chief Executive
Officer, SRA sent report to the Government on 11 th June,
2013 to acquire the said land. Accordingly, the
Government has decided to acquire the said land vide
notification dated 3rd April, 2014 under section 14(1) of the
Slum Act.
41. It is further submitted that the Chief Executive Officer also
had observed that public notice under Section 14(1) under the
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Slum Act has been issued through the news paper. The concerned
landlords/owners were issued notices for the acquisition of the
land. After the notices being issued, some of the landlords have
forwarded their objections in respect of the acquisition of the
property CTS Nos. 82, 82(A), 82/2 to 5. So far about one of the
property owner, namely, Mr. Prasad Vinayak Walawalkar, made
it clear that he doesn't have objection for the land acquisition
excluding his plot of land Survey No. 232B admeasuring 2500
square yards in CTS No. 82A.
42. It is further stated that out of the said area of CTS No.
82A/1, the area admeasuring 42338.08 square meters is being
occupied by some of the occupants. Out of the said area, about
717 square meters from CTS Nos. 82A/1 to 2 and 82/1C is under
the ownership of M/s. Alpack Pvt. Ltd. Mr. Shri Naresh Rawal
the director of the company gave his no-objection for the
acquisition of the land excluding the aforesaid area.
43. It is further stated that after the notices were issued by the
Additional Collector, the landlords, namely, Mr. Ratansi
Karsandas and 16 other owners of the Bhandup property raised
the objection. Accordingly, proper hearing was given to them on
22nd March, 2013, 6th April, 2013, 20th April, 2013 and 17th May,
2013. It was the basic submission of the landlords that they are
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the lawful owners of CTS Nos. 82, 82A, 82/2 to 82/5 and they are
having their own Slum Rehabilitation Scheme and therefore, they
themselves are interested to develop the said property.
Therefore, they have objection for the land acquisition. According
to them, they have got their own joint venture with the group of
land owners (Marathon Realty Pvt. Ltd.) and therefore, they may
be permitted to develop the property. It is also pointed out by
them that the property owned by them is occupied by the chawl
holders illegally and the said hutment dwellers did not approach
them for the development of the property. Therefore, it is
submitted by the landlords that the proposal of land acquisition is
required to be cancelled.
44. It is further submitted in the reply affidavit that on behalf of
respondent no. 6 Sai Chaya Co-operative Housing Society, it was
stated that they are residing in the said slum area for number of
years, however, there are no amenities and facilities provided by
the landlords and therefore, they are residing absolutely in
inhabitable and unhygienic conditions, hence, they have formed
the co-operative society and made representation to the
Government and therefore, the Government declared the said
area as a slum. Since no facilities of proper roads, lanes,
electricity supply and drainage system were available, there was
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no alternative except the declaration of the property as slum.
They have submitted the proposal to the State Government and
also requested the landlord, however, there was no consent from
the landlords for the redevelopment and therefore, the Additional
Collector (Encroachment and Removal) has made
recommendation for the acquisition of the land under Section
14(1) of the Slum Act. It is further submitted that the land
owners do not want to make redevelopment, otherwise they
would have shown their interest immediately before the
declaration in the gazette dated 30th June, 1977 or immediately
thereafter. However, for a period of more than 32 to 35 years, the
landlords remained idle inactive and hence, the land is required
to be acquired by the Government for the slum dwellers'
rehabilitation.
45. It is further submitted that after considering all the
objections and suggestions by all the concerned interested
parties, including the slum dwellers, land owners etc. and the
report from the Deputy Collector, the Chief Executive Officer, SRA
observed that the demand of hut holders is genuine as the area
admeasuring 3747.384 square meters is declared as a slum area
and the hut holders are demanding their rehabilitation. They are
protected hut holders and therefore, they are entitled to move for
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redevelopment on their own. Under these circumstances, the
Chief Executive Officer, SRA forwarded a proposal to the
Government for acquisition of total area admeasuring 3747.384
square meters out of CTS Nos. 82A/1A, 82/2 to 82/5 at village
Bhandup, taluka Kurla.
46. In view of the said recommendation from the office of the
Chief Executive Officer, the State Government decided to acquire
the land as mentioned hereinabove. Before taking the decision of
acquisition, it was found by the Government that appropriate
notices were issued by the Chief Executive Officer, SRA to all the
concerned parties. It is further observed that the Chief Executive
Officer, SRA, Bandra also had submitted a report for the
acquisition of the land and therefore, in order to carry out the
development under the Slum Rehabilitation Scheme, the
Government of Maharashtra has decided to acquire the said land
in exercise of powers conferred under Sub-Section (1) of section
14 read with paragraph (A) of Sub-Clause (I) of clause (C) of
Section 3D of the Slum Act.
47. Thus, the impugned action and the notification is justified
on the ground that the same is initiated and concluded for
protection of the interest of the occupants and slum dwellers.
Once the landlords did not evince any interest, but the property
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was neglected and for more than three decades that the State had
to intervene and take the subject action. The land owners did not
even furnish the scheme of redevelopment. Hence, there was no
alternative for the Government but to acquire the land. It is in
these circumstances that the notification under section 14(1)
read with para (A) Sub-Clause (i) of Clause (c) of Section 3D was
published on 3rd April, 2014. After publication of this notification
in the Government Gazette, it was published in the local
newspapers (English as well as Marathi).
ig Even notices for
determination of compensation were issued. It is in these
circumstances that respondent no. 4 submits that the writ
petition be dismissed.
48. We have also an affidavit on record filed by respondent no.6.
There, it is contended that there is no substance in the writ
petition. Once the slum dwellers' plight has been ignored and they
are neglected by the petitioners claiming to be owners, then, the
writ petition deserves to be dismissed.
49. There are two affidavits in rejoinder, which have been filed
by the petitioners. The first affidavit in rejoinder deals with the
reply of SRA respondent no. 4. In that, in paras 5, 6, 9 and 18, it
is stated as under:-
"5. With reference to the paragraph NO. 3(i) of the
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Affidavit-in-Reply, I deny that the present Writ Petition is
not maintainable on the ground that it is difficult to
understand from record that whether the present
Petitioners are the exclusive owners of Bhandup Estate. I
deny that the present Petition is not maintainable unless
and until all the owners/holders are shown in the title of
the Petition. I deny that the Petition is required to be
dismissed on the ground of non-joinder of necessary
parties and also for not mentioning exact description of
the property as alleged or at all. I say that all constituents
of Bhandup Estate are party Petitioners in the present
Petition. In paragraph 1 of the Petition, it is clearly stated
that Petitioners are co-owners of Bhandup Estate and
known in revenue records as Ratansey Karsondas and Ors.
Bhandup Estate came into effect as a result of grant by the
East India Company i.e. United Company of Merchants of
England, through the Collector of Salsette and Bombay to
one Luke Ash Burner sometimes on or about 17 September
1803. By the year 1930, the ownership of Bhandup Estate
was held by three individuals i.e. Shivji Raghavji, Sir
Mathuradas, and Shoorji Vallabhdas. Upon the demise of
Sir Mathuradas Vissanji, Shoorji Vallabhdas and Shivji
Raghavji, the strength of Bhandup Estate by induction of
their respective legal heirs and/or representatives, was
increased and the Petitioners are the present constituents
of Bhandup Estate.
6. With reference to the paragraph No. 3(ii) of the
Affidavit-in-Reply, I deny that the Petitioners cannot
challenge the notification of the said plot of land as they
are not the holders of the total land as alleged. I deny that
the Petitioners are not certain about their ownership right
over the area of the plot of land as alleged. The Petitioners
are owners of huge tracts of land in the revenue villages of
Kanjur, Nahur and Bhandup including the subject land.
9. With reference to the paragraph Nos. 3(vi) to 3(vii) of
the Affidavit-in-Reply, I deny that the Government can
acquire the land under Section 3(D)(c)(i) of the Slum Act
on the basis of representation to Chief Executive Officer,
SRA as alleged. I deny that the owner is having only right
to claim compensation as the land has already vested with
the State Government. I deny that the Petition is not
maintainable as 210 Slum Dwellers have given consent to
develop the said property as alleged. As regards the
contention that the slum dwellers are interested in
developing the property, the Petitioners submit that it is
consistently the case of the Petitioners that they are not
only ready to develop but also entitled to develop the
subject land. The Petitioners have all along stated that
they are in a position to develop the land to the benefit of
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the slum dwellers. There was therefore no occasion for the
said land to be acquired by the State Government as is
sought to be done. It however appears that another
Developer is interested in developing the land, which the
Respondent No. 6 Society is supporting and the process is
abused for the benefit of a third party and to the detriment
of the owner.
18. With reference to the paragraph Nos. 3(xxiii) and
3(xxiv) of the Affidavit-in-Reply, I deny that the
Petitioners did not take any interest and kept the slum
area as it is for more than four decades and therefore the
land owners did not furnish their scheme of
redevelopment. I deny that there was no alternative
before the Government to acquire the land. I say that the
Petitioners have always expressed their willingness to
implement the Slum Rehabilitation Scheme on the said
property. I say that however the Respondents have failed
to consider the proposal of the Petitioners and only in
order to support the cause of another Builder have
proceeded to acquire the said property."
50. In the second affidavit in rejoinder, which deals with the
reply filed by respondent no. 6, it has been stated that there is an
attempt made by this respondent to snatch and take away the
property of the petitioners at a nominal compensation. As far as
the plight of slum dwellers is concerned, the petitioners state that
they are ready to develop the property under the Slum
Rehabilitation Scheme and as such respondent no. 6 ought not to
have any objection in that regard. The mere fact that the sixth
respondent is opposing development of the subject land by the
petitioners establishes that respondent no. 6 and its office bearers
want the land to be acquired for oblique motives. Thus,
throughout, the stand is that the petitioners are ready and willing
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to carry out redevelopment of their land. Rest of the affidavit in
rejoinder is a denial of the statements in the reply affidavit and a
reiteration of the averments in the writ petition.
51. It is on the above material that the rival contentions are
based.
52. It is submitted by Dr. Sathe learned senior counsel
appearing for the petitioners that the subject land is not declared
as slum under section section 3C
ig and, therefore, unamended
provisions of Chapter III and Chapter IV of the Slum Act will
apply to the present impugned acquisition. The declaration under
section 14(1) of the Slum Act is vitiated for non-compliance with
provisions of section 5(1).
53. Dr. Sathe submitted that section 14 provides that before an
acquisition is made of any land, procedure under section 5 is
required to be followed and is mandatory. He submitted that the
provisions of section 5 are mandatory as held by this Court in the
case of Ramkali Sitaram vs. Deputy Collector, 2004 (3) Bom. C.R.
14 (para 10). This judgment has been confirmed by a Division
Bench in the case of Maruti Mane vs. Smt. Ramkali [Appeal No.
324 of 2004, judgment dated 14/2/2011 (para 5)]. The Special
Leave Petition against this judgment and order has been rejected
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by the Supreme Court. Admittedly, in the instant case, there is no
compliance with mandate of section 5 of the Slum Act.
54. Dr. Sathe submitted that respondent No.4 in his affidavit
(page 220) has contended that the present acquisition proceeding
is under Chapter I-A as amended by Maharashtra Act No.11 of
2012 and hence provisions of section 4, 5, 6, 7, 8, 9, 10 and 11,
which stand deleted from chapter I-A, are not applicable. This
submission is erroneous as the provisions of Chapter I-A will
apply only on issuance of declaration under section 3C of the
Slum Act.
55. He further submitted that in fact, a notice under section 5
was issued to the petitioners on 7th March, 2012 (Exhibit "E"/
page 59) to which the petitioners had applied on 13 th March,
2012 (Exhibit "F" / page 64) and the said proceedings were
dropped. The respondents, therefore, could not and ought not to
have commenced action under section 14 of the Slum Act.
56. Dr. Sathe then submitted that the Division Bench in the
order dated 14th February, 2011 in case of Maruti Mane has
clearly observed that once there is a declaration under section 3C,
scheme under sections 5 and 14 which is otherwise mandatory is
deleted.
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57. He further submitted that the present Slum Rehabilitation
Scheme is contemplated under DCR 33(10) and for that purpose
acquisition is sought to be undertaken under section 14(1) of the
Slum Act.
58. Dr. Sathe further submits that the owner has preferential
priority right to develop the Slum Rehabilitation Scheme and this
right has been recognised in following judgments of this Court :-
(i) Anil G. Shah vs. State of Maharashtra, 2011 (2) BCR
93 (para 25) which reads as under :
"2.5 ... ... ... It has been the consistent stand of
the petitioner that such an order was not issued.
On the order having been published in the official
gazette, the petitioner may not have the remedy of
appeal as of now and knowing this position in law,
he has pressed for the relief that owners of the suit
plots must be given an opportunity to develop the
slum area and rehabilitate the slum dwellers.
Some of the slum dwellers have appeared before us
and filed an affidavit supporting the proposal of the
petitioner that he ought to be allowed in the first
instance to undertake the Slum Rehabilitation
Scheme."
(ii) The Reserve Bank Employees Snehdhara Cooperative
Housing Society Ltd. vs. State of Maharashtra, W.P. No.
91/2002, judgment dated309/2014.
(iii) Twin Builders vs. State of Maharashtra, W.P.
No.474/2012, judgment dated 31/7/2014 (para 16).
59. He then submits that even section 13(1) of the Slum Act, on
which the respondents rely, contemplates that the Slum
Rehabilitation Scheme will be allowed to third party only if the
land holders do not come forward with such a scheme. Even
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section 12(1) also contemplates a priority right to the owner to
develop the property.
60. Dr. Sathe submitted that DCR 33(10) also contemplates the
right of the owner to redevelop the slum at the first instance.
However, for submitting a slum scheme, it was incumbent to
obtain prior consent of 70% of the slum dwellers.
61. He submitted that the SRA has now issued a Circular dated
9th November 2015, wherein it has relaxed the aforesaid
condition and the owners of land which are occupied by slums can
submit slum schemes without obtaining 70% consent from the
slum dwellers.
62. He further submitted that the petitioners are ready and
willing to implement the Slum Rehabilitation Scheme on the
portion of land which is the subject matter of the impugned
notification and extend all the benefits as permissible in law to
eligible slum dwellers. He submitted that the petitioners valuable
property rights are being violated.
63. Dr. Sathe has submitted that even after deletion of Article
19(1)(f) from Part III of the Constitution of India, the property
right is recognised as valuable statutory right under Article 300A
of the Constitution of India and the property, therefore, cannot be
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acquired except in accordance with law. Dr. Sathe submitted that
implicit in this is that the acquisition of property can be only for a
public purpose and on payment of market compensation to the
expropriated owner (not illusionary compensation).
64. He further submitted that in the instant case, the
acquisition of property would benefit only the developer which
respondent No.6 would appoint. The land acquired under section
14 notification is 3747.384 square meters as against which the
only obligation would be re-accommodating a maximum of 221
slum dwellers. The FSI of 3747.384 square meters would be
10,117.936 square meters (i.e. 3747.384 x 2.7). The balance area
would be a bounty to respondent No.6 and the developer at the
cost of the petitioners. As against it the petitioners would get a
compensation of few thousand rupees. He submitted that such an
exercise of eminent domain is clearly arbitrary, unjustified and
wholly illegal as held by the Hon'ble Supreme Court in the case of
Royal Orchid Hotels vs. G.J. Reddy (2011) 10 SCC 608.
65. Dr. Sathe further submitted that the Notification, as
contended by the respondent, is under section 14(1) of the Act
and according to them, is in compliance with both unamended
and amended section 14. This assertion is factually untrue and
illegally erroneous. The only procedure followed is starting with
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notice under proviso to section 14(1) and then Notification of
acquisition i.e. notices dated 20th May, 2012 and 14th March,
2013, followed by Notification dated 3rd April, 2014. There is
admittedly no compliance with sections 5, 11, 12 and 13 and
hence acquisition is invalid as held by this Hon'ble Court in a
series of decisions. There is no report of the Competent Authority
under sections5, 11, 12 and 13. If the acquisition is undoubtedly
only under amended section 14, which is evident from the last
paragraph of the Notification which reads thus:-
"And whereas, as required by the proviso to sub-
section (1) of section 14 of Chapter V read with
Paragraph (A) of sub-clause (i) of clause (c) of section
3D of Chapter 1-A of the said Act, on a representation
dated 11th June 2013 from the Chief Executive Officer,
Slum Rehabilitation Authority, Bandra, Mumbai, it
appears to the State Government that in order to
enable to Slum Rehabilitation Authority to carry out
the development under the Slum Rehabilitation
Scheme in the slum areas mentioned in column (4) of
the said Schedule, should be acquired;
Now, therefore, in exercise of the powers
conferred by sub-section (1) of section 14 read with
paragraph (A) of sub-clause (i) of clause (c) of section
3D of the said Act, the Government of Maharashtra
hereby declares, by his notice, that it has decided to
acquire the said lands."
66. Dr Sathe further submitted that the acquisition under
amended section 14 as per Chapter 1-A, there has to be a
declaration of the subject area as 'Slum Rehabilitation Area' as
mandated by sections 3C, 3D and amended section 14 to be found
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in section 3D. There is admittedly no declaration under section
3C.
67. Dr. Sathe then submitted that the contention urged relying
on the judgment in the case of Apurva Parikh v. SRA & Ors. in
Writ Petition No. 1965 of 2013 dated 15 th April 2015 (Gavai &
Gadkari, JJ) that since declaration under section 4 is not
challenged since 1977, challenge to the acquisition is not
maintainable. This submission is misconceived.
68.
He further submitted that the declaration in respect of
subject land under section 4 is not in 1977, but only on 22 nd
July,2011 and immediately since then the present proceedings
are going on. Besides, a mere declaration under section 4, even if
it becomes final, cannot bar a challenge to the acquisition.
69. It is then submitted that the contention that section 14
which occurs in Chapter V is an independent power and is not
referable to the provisions of the preceding sections 5 to 13 is
erroneous since section 14 opens with the words "on
representation from the Competent Authority ...." Besides, this
point is concluded by the judgment of a single Judge in Ramkali,
approved by the Division Bench in Maruti Mane, Twin Developers
and Om Sai judgments (supra). No other judgment, including the
judgment dated 1st March, 2016, in Writ Petition No. 165 of 2007
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in the case of Murlidhar Tekchand Gandhi has differed or diluted
the ratio of the Division Bench in Ramkali Sitaram Vs. Maruti
Mane.
70. Dr. Sathe has submitted that the reliance placed on the
judgments in the case of Sara Demello reported in (2013) 5 BCR
167 and Nenji Monji vs. State of Maharashtra & Ors. , in Writ
Petition No. 1489 of 2008 to urge that the object of acquisition is
in public interest is of no significance because any forcible
acquisition of land must be for public purpose and must be strictly
in accordance with law.
71. Dr. Sathe further submitted that the petitioners ought to be
given an opportunity to submit the scheme and the Authority
must cooperate by taking steps to evict the non-co-operating
occupants. He submitted that this is important since the only
right of the occupants is to establish their eligibility and then get
the permanent rehabilitation. They cannot insist on who should
be developing the scheme.
72. Dr. Sathe has relied upon the following judgments:-
(i) Ramkali Sitaram Kushawaha and Ors. vs. Deputy
Collector (ENC) and Competent Authority and Ors.,
2004(3) Bom. C. R. 14.
(ii) Maruti V. Mane and Anr. vs. Smt. Ramkali Sitaram
Kushawaha and Ors., Appeal No. 324 of 2004 (Bombay
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High Court), decided on 14th February, 2011.
(iii) Om-Sai Darshan Co-operative Housing Society
(proposed) and Chandrakant Ramchandra Thakur vs. The
State of Maharashtra and Ors., 2006 Vol. 108(3) Bom.
L. R. 2219.
(iv) M/s. Twin and Deccan Builders and Anr. vs. State of
Maharashtra, Writ Petition No. 747 of 2012 (Bombay
High Court), decided on 31st July, 2015.
(v) Anil Gulabdas Shah vs. State of Maharashtra and Ors.,
2011(2) Bom. C. R. 93 .
(vi) Royal Orchid Hotels Limited and Anr. vs. G. Jayarama
Reddy and Ors., (2011) 10 SCC 608 .
73.
On the other hand, Mr. Dhakephalkar learned senior
counsel appearing for respondent no. 4 SRA countered the
submissions of Mr. Sathe. It was submitted by him that there is
no substance in these contentions. He submitted that this writ
petition has no merit and must be dismissed. It is submitted by
Mr. Dhakephalkar that Annexure B-1 to the writ petition
indicates as to how the Deputy Collector, Bhandup has been
appointed as competent authority under section 3 of the Slum Act
in respect of the lands or classes of lands other than the lands
belonging to Municipal Corporation of Greater Mumbai or the
Housing Board for protection of the occupiers from eviction and
distress warrant. On the basis of the information about slum
areas available, the competent authority was satisfied that the
areas specified in the Schedule to this notification are source of
danger to the health, safety or convenience of the public of that
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area and of its neighbourhood by reason of it being overcrowded
and lacking in basic amenities. That has been rendered
insanitary, squalid and/or otherwise. It is in these circumstances
that the lands have been declared as slum by this notification
dated 22nd July, 2011 and published in the Maharashtra
Government Gazette of August, 2011. Mr.Dhahephalkar submits
that on 23rd February, 2012, the parties referred to in the
communication at page 50 were informed that one Sai Chaya Co-
operative Housing Society (proposed) had moved a proposal to
acquire the land being CTS Nos. 82, 82A and 82/2 to 82/5 under
section 14(1) of the Slum Act. A reference is also made in this
communication to a letter from the Additional Collector dated 19 th
January, 2012. Based on this, on 1 st March, 2012, the competent
authority, namely, the Deputy Collector (Encroachment and
Removal), Bhandup called upon the parties to remain present
with all original documents.
74. The petitioners, on 1st March, 2012, addressed a letter to
this competent authority, copy of which is at Annexure 'B' at page
55 of the paper book, stating therein that the aforesaid lands
stand in the name of the present petitioners in the property card.
Therefore, they are entitled to develop these lands. They were
objecting to the acquisition of the same. However, before they
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could make a detailed submission, they would require all the
documents including the proposal from the proposed society and
the communication from the Additional Collector, both of which
are referred to in this notice. This is a letter dated 1 st March,
2012. Then, there is a letter, according to Mr. Dhakephalkar, at
Annexure 'E' at page 59, which states that the notification under
section 4(1) under the Slum Act has already been published.
However, within 30 days from the date of publication of this
notification, whether the petitioners have filed any appeal before
the Slum Tribunal, whether the property continues to be a slum
and if the petitioners are claiming to be in possession thereof or
the right, title and interest therein, whether they have taken any
steps to provide any amenities or conveniences to the occupants.
Whether they have taken steps to do so and whether repairs and
maintenance of the property is still with them and this
information be provided. The petitioners were called upon to
provide information on the points enlisted in this communication,
else, this letter stated that steps under section 6(1) would be
initiated. However, the petitioners, at page 64 of the paper book
(Annexure 'F') submitted their written say.
75. The written say stated that they are lawful owners of the
land and that they intend to develop the property themselves.
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That the applicant proposed society had neither approached the
land holders nor made any attempt to express their willful
consent for development of the property. The attention of the
authority was invited to letter dated 8th December, 2009
expressing strong objection for slum declaration of CTS
No.82(part) of village Bhandup and acquisition under section
14(1) of the Sum Act, which was received by the office.
Mr.Dhakephalkar submits that beyond expressing willingness
and their alleged interest to develop the entire CTS No. 82(part)
all that the said owners/petitioners contended that they desire to
develop the entire CTS No. 82(part). They also invited the
attention of the competent authority to some correspondence and
during the proposed development of Milind Nagar Co-operative
Housing Society (proposed), who approached the petitioners
allegedly. The petitioners were supporting the said Milind Nagar
Co-operative Housing Society (proposed) and also requested to
declare the entire CTS No. 82 as slum and that is clear from their
own statement at page 67. Mr.Dhakephalkar submits that there
is no substance in the contention of Mr. Sathe, simply because the
petitioners were unable and in any event unwilling to carry out
any development themselves. They entered into a joint venture
with reputed groups for phase wise development within the
periphery of said property in the interest of improvement and
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clearance of slum area. It is in these circumstances that they
objected to the acquisition of the property. However, on their own
showing, they have been unable to demonstrate that concrete
steps were taken by them for all these years. Mr. Dhakephalkar
submits that all the land holders and whose lands have been
acquired resort to these methods, simply because they are guilty
of neglecting the property, the slum dwellers and occupiers
residing in sub-human conditions. However, when they realise
that the land bears great potential and the prices are increasing
in the market that on the eve of acquisition proceedings, they
make such attempts and to avoid the obvious. Mr. Dhakephalkar
submits that it was not open for the competent authority to issue
any directions, much less in terms of the prayers of this written
say.
76. Mr. Dhakephalkar, therefore, submits that the proposal
received from Sai Chaya Co-operative Housing Society (proposed)
was rightly processed and there was a report submitted by the
competent authority to the Additional Collector (Encroachment
and Removal), Mumbai Suburban District (East). Inviting our
attention to this report, copy of which is at Annexure 'G' at page
71 of the paper book, Mr. Dhakephalkar submits that this Sai
Chaya Co-operative Housing Society (proposed) is a settlement at
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Mouje Bhandup, Survey No. 132, Hissa No. A/1 admeasuring 13
acres 14 guntha, new Survey No. 82A/1. That was in lieu of the
old CTS Nos. 82, 82/1 to 82/5. The property register card, as
perused and relied upon in the report of 30th April, 2012 at page
71 reflects that the area is 42338.715 square meters and the
original holders, from records, are Vinodkumar Radhyesham
Mourya, Radhyesham Rambharose Mourya and 21 others. CTS
Nos. 82/1 to 82/5 admeasure 239.70 square meters and the
names of the holders as also the structure owners are Shravan
Ladkya Kirkire, Lahanu Bhiva Babar, Khwaja Husain, Kalyanji
Khadar Wala and Kalyanji Khadarwala. There are about 221
huts. 195 huts are residential and 23 are commercial, whereas, 3
are commercial-cum-residential. Outside the boundary of CTS
No.82/1(part), there are 4 structures/huts and the numbers
assigned to them are 98, 99, 100 and 101. The total area
occupied by these 4 structures is 54 square meters. This area has
been excluded from the area under consideration. That is what
the maps would reflect.
77. This report of the competent authority indicates that the
persons interested/owners were to be heard on several dates,
namely, 23rd February, 2012, 1st March, 2012, 13th March, 2012
and 20th March, 2012 so also 22nd March, 2012. However, these
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owners sent their written replies/say dated 1 st March, 2012, 13th
March, 2012 and 20th March, 2012. The copies of these are
annexed to the report. Mr. Dhakephalkar emphasises that CTS
Nos. 82, 82A and 82/1 to 82/5 and new CTS No. 82A/1
admeasuring 3747.384 square meters has been declared as slum
on 22nd July, 2011. The City Surveyor has submitted a report on
15th February, 2012 indicating as to how the area of CTS
No.82A/1 is 42338.8 square meters and the area of CTS Nos. 82/1
to 82/5 is 239.7 square meters. Thus, the total area is 42578.5
square meters and the proposed acquisition is regarding
3747.384 square meters. The breakup of the proposed acquired
area is also set out in the report. Mr. Dhakephalkar submits that
in terms of the development plan, the land falls in
residential/special industrial zone. The Sai Chaya co-operative
Housing Society (proposed) has filed an undertaking/affidavit on
stamp paper stating that there are no proceedings pending in
relation to this property in any court, namely, civil/criminal. On
the area to be acquired, there are 221 huts and as indicated
above. Out of these, 195 residential slum dwellers, 114 are
eligible. The list of those, who are eligible and ineligible, is also
attached to the report. All these slum dwellers have filed consent
letters for acquisition. The lands have been measured by the City
Survey Officer and Surveyor and the map prepared after this
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measurement was also annexed to this report. It is stated that all
the requisite records would indicate that according to the owners
of the land, they intended to develop it on their own, but the slum
dwellers did not co-operate with them. On the other hand, the
slum dwellers indicated that the owners did not consent to any
proposal for development by the slum dwellers themselves. Mr.
Dhakephalkar submits that most importantly, this report
indicates that at no occasion, in the past, the petitioners got in
touch with or contacted the SRA officials claiming to develop the
property. The report indicates that no proposal for development
of the land under acquisition was received and no record in
relation thereto is available in the office of the competent
authority. It is in these circumstances that a notice was issued
under section 5(1) of the Slum Act dated 7 th March, 2012 to the
persons interested/owners of the land. However, the notice was
responded by the proposed society on 30th March, 2012 and a
copy of this reply was annexed to the report.
78. Mr. Dhakephalkar submits that once the report, along with
all 390 pages was submitted that the further steps were taken by
the Additional Collector. He published a notice dated 28 th May,
2012 in terms of the proviso to section 14(1) of the Slum Act. He
also called upon all concerned and interested to respond to this
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notice by producing requisite papers and documents and submit
their explanation, failing which, the Additional Collector informed
that he would proceed on the footing that they have nothing to
say with regard to the proposed acquisition. Thereafter, the
further steps were taken.
79. This notice dated 28th May, 2012 was received, admittedly,
by the Bhandup Estate Ratansey Karsondas and Others. They
replied to the same on 20th June, 2012 claiming to be lawful
owners of the property. They only stated that they intend to
develop the property themselves. They stated that M/s. Sai
Chaya Co-operative Housing Society (proposed) never
approached them nor made any attempt to seek their consent for
development. Rather the owners expected the slum dwellers to
consent so that they can carry forward their intent.
Mr.Dhakephalkar submits that in this backdrop and when the
petitioners, beyond this alleged intent, took no steps at all, that
the legal contentions must been seen and considered.
Mr.Dhakephalkar submits that we are in extraordinary, equitable
and discretionary writ jurisdiction under Article 226 of the
Constitution of India. We should not, in any manner, take note of
these legal contentions of Mr. Sathe, when the whole attempt is to
stall the acquisition proceedings. The petitioners never intended
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to develop the property, much less carry out any improvements
or effect any repairs. They just neglected the slum dwellers. The
slum dwellers had never been provided any basic amenities and
thus stand deprived of the essential amenities like sanitation,
hygiene etc. It is in this backdrop that the complaint of the
petitioners must be noted and considered. They claim that they
have commenced development in and around Bhandup area.
They also claim that they have displayed a board for the
development of the property. They complain that most of the
slum dwellers including their adjoining neighbours are aware of
the address of the land holders, but they deliberately did not
forward their letters at the correct address. Mr. Dhakephalkar
complains that the petitioners on one hand stated that they had
brought to the notice of the Deputy Collector, Bhandup that the
chawls are unauthorised and existing since 1977. They claim
that the applicants are encroachers in and upon the said
property. Yet, they state that they have tolerated all this and not
caused any harassment to the occupants. Mr. Dhakephalkar
contends that the petitioners thus stand exposed. They take
contrary and contradictory pleas. On the one hand they claim
that their property is encroached by encroachers and all the
structures are unauthorised and on the other hand they claim
that they intend to develop the property and rehouse these
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occupants of the slum structures. Such a person or owner can
never be believed. Further, these petitioners accuse the Co-
operative Housing Society, namely, Sai Chaya Co-operative
Housing Society (proposed) of having associated with third party
with the malicious intent of encroaching over their ownership
right. In these circumstances, Mr. Dhakephalkar would submit
that their grievance could never have been considered
favourably. The slum notification, which is in operation since
1977 was sought to be rectified by the petitioners and they
wrongfully raised the area correction issue. From 1977 till the
present proceedings, they never thought that there was any error
or mistake. It is in these circumstances that Mr. Dhakephalkar
would submit that there is no substance in any of the contentions.
Mr. Dhakephalkar submits that after due consideration of all the
materials produced, the Additional Collector forwarded the
papers on 4th October, 2012 to the Principal Secretary,
Department of Housing, Government of Maharashtra. He gave
his comments on each of the relevant issues. He also relied upon
the report of the competent authority and also applied his
independent mind. Mr. Dhakephalkar relied upon the report of
the Additional Collector, which indicates that none of these
owners were providing any basic amenities or conveniences.
There are only 4 toilets. The roads are very narrow and
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congested. Some of the structures face water logging in monsoon.
There are open gutters and some of them are only covered by
tiles. There is no better public lighting, but private electricity
connection has been obtained by the slum dwellers themselves.
The population of the area is about 1100 to 1200. There is no
proper drainage and the structures are very close to each other.
Thus, the area is congested and in need of improvement.
80. Mr. Dhakephalkar took us through this detailed report,
copy of which is appearing from pages 131 to 138 of the paper
book to submit that this is not a case of any malafides, much less
non application of mind. There is a further report dated 2 nd
November, 2012, copy of which is at page 151, which indicates
that up to October, 2012, no proposal was received from the
owners for rehabilitation of the slum dwellers. Thus, in respect of
two portions of the lands, which have been declared as slums, a
consolidated proposal for development has been submitted. This
further report and the comments would indicate as to how the
Additional Collector as also the competent authority and all
concerned duly complied with the requirement of fairness, equity
and justice. All the objections and grievances were duly
considered. All the concerned were duly heard. After compliance
with the provisions of law, the detailed reports forwarded would
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indicate as to how the SRA throughout supported these proposals.
Mr.Dhakephalkar also took us through the copy of the application
from the proposed society, namely, Sai Chaya Co-operative
Housing Society (proposed), a reply thereto by the petitioners
and the rejoinder.
81. Mr. Dhakephalkar submits that it is in these circumstances
on 11th June, 2013 a detailed letter containing a report of the SRA
was forwarded to the Housing Department for the simple reason
that the Department of Housing called for by letter dated 15 th
February, 2013 the remarks and comments from the SRA. This
report also indicates as to how the Chief Executive Officer of the
SRA proceeded in the matter.
82. Mr. Dhakephalkar would, therefore, would submit that after
considering the objections received from the owners, the
Government of Maharashtra considered it expedient to acquire
the land for implementation of the scheme of rehabilitation of the
slum areas mentioned in column 4 of the Schedule.
Mr.Dhakephalkar submits that in the backdrop of all this, we
must consider the notification, which is published in the
Maharashtra Gazette dated 3rd April, 2014. Mr. Dhakephalkar
would submit that in view of the above, no fault can be found with
the notification. Mr. Dhakephalkar would submit that the
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notification refers to the representation from the Additional
Collector indicating as to how for carrying out works of
improvement, it is necessary that the land should be acquired.
Then, the notification refers to the publication of the notice dated
3rd July, 2012 and its service. Then, the notification refers to the
compliance with the proviso to Sub-Section (1) of section 14 of
Chapter V of the Slum Act read with Paragraph (A) of Sub-Clause
(i) of Clause (c) of Section 3D of Chapter I-A of the Slum Act and
the notice served by the Chief Executive Officer dated 14 th March,
2013. It refers to the proposal for acquiring the land and the
hearing and the objections raised during the course thereof. That
is how the Chief Executive Officer, SRA, after considering the
objections of owners and the request made on behalf of the
proposed co-operative housing society, finds that for protecting
the legitimate interest of the slum dwellers, it is necessary to
proceed and acquire the land. That is how the notification refers
to his representation dated 11th June, 2013.
83. Mr. Dhakephalkar submits that Dr. Sathe is not right in
contending that this notification is contrary to law.
Mr.Dhakephalkar would submit that not much can be made of
this reference in the notification to the two provisions. He would
submit that there is no scope for the argument that Section 14 of
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the Slum Act is inapplicable. Mr. Sathe, on the one hand relies on
all the proceedings commencing from issuance of slum
notification from 1977 culminating in the present acquisition and
then states that unless and until due compliance is made with the
amended Chapters of the Slum Act, no acquisition proceedings
can be commenced. Mr. Dhakephalkar has relied upon the
affidavit in reply of respondent no. 4. He would submit that once
the land has already vested in the State and it was neglected for
nearly 32 to 35 years by the landlords, then, we should not
interfere in our writ jurisdiction. No technical objections should
be entertained. Mr. Dhakephalkar also invites our attention to
the Slum Act and Section 14(1) thereof. He also refers to the
contents of the notification to submit that at best and without
prejudice, it would be said to be composite one. In any event, once
the factual position is noted, then, this is not a fit case for
interference in writ jurisdiction. The other respondents
supported Mr. Dhakephalkar.
84. Mr. Dhakephalkar has relied upon the following judgments:-
(i) Sara Harry D'mello vs. State of Maharashtra and Ors.,
(2013) 4 Mah. L. J. 348 .
(ii) Nenshi Monji (Bombay) and Ors. vs. State of
Maharashtra and Ors., (2015) Mah. L. J. 397 .
(iii) Smt. Halimabee Abdul Hadi and Ors. vs. The State of
Maharashtra and Ors., Writ Petition No.1377 of 2012
(Bombay High Court), decided on 18th November, 2015.
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(iv) Apurva Natvarlal Parikh vs. Slum Rehabilitation
Authority and Ors., Writ Petition No. 1965 2013
(Bombay High Court), decided on 15th April, 2015.
(v) Murlidhar Teckchand Gandhi and Ors. vs. State of
Maharashtra and Ors., Writ Petition No. 165 of 2007
(Bombay High Court), decided on 1st March, 2016.
85. For properly appreciating the rival contentions, we must
make a reference to the Slum Act. Maharashtra Act No. XXVIII of
1971 is titled as "Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971. It is an Act to make
better provision for the improvement and clearance of slum areas
in the State and their redevelopment and for the protection of
occupiers from eviction and distress warrants. Chapter I of this
Act contains preliminary provisions. By section 1, it is clarified
that this extends to the whole of the State of Maharashtra and it
comes into force in such areas and on such date as the State
Government, by notification in official gazette appoint and
different dates may be appointed for different areas. Some of the
definitions are important for our purpose. The term "building" is
defined in section 2(b). The term "Chief Executive Officer" is
defined in section 2(ba), which was inserted by Maharashtra Act
No. 6 of 1997. It means a Chief Executive officer of the SRA
appointed under section 3A(2). The term "Collector" is defined in
section 2(b-1) and the term "Competent Authority" is defined in
section 2(c) to mean a person or body appointed to be the
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competent authority under section 3. The "Developer" means a
developer registered under section 3B and that definition is to be
found in section 2(c-a). The term "eligible slum dweller" means a
slum dweller who fulfills such criteria or eligibility as may be
prescribed, from time to time, and is declared so eligible by the
competent authority. Then, the term "land" is defined in section
2(d). The terms "occupier" and "owner" respectively are defined
in section 2(e) and (f) and section 2(g) describes the term
"prescribed" to mean prescribed by rules made under the Act. We
shall come to some of the definitions and a Chapter inserted by
Maharashtra Act No. 4 of 1996 a little later.
86. The appointment of competent authority is made by section
3 and it also falls in Chapter I.
87. Then comes Chapter I-B, which also shall be referred a little
later, because that was inserted by Maharashtra Act No. 10 of
2002. We now refer to the provisions of section 4. Section 4 deals
with declaration of slum areas, which reads thus:-
"4. (1) Where the Competent Authority is satisfied that -
(a) any area is or may be a source of danger to the
health, safety or convenience of the public of that area or of
its neighbourhood, by reason of the area having inadequate
or no basic amenities, or being insanitary, squalid,
overcrowded or otherwise or
(b) the buildings in any area, used or intended to be
used for human habitation are
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(i) in any respect, unfit for human habitation;
or
(ii) by reason of dilapidation, overcrowding,
faulty arrangement and design of such building, narrowness
or faulty arrangement of streets, lack of ventilation, light or
sanitation facilities or any combination of these factors,
detrimental to the health, safety or convenience of the
public of that area,
the Competent Authority may, by notification in the
Official Gazette, declare such area to be a slum area. Such
declaration shall also be published in such other manner (as
will give due publicity to the declaration in the area) as may
be prescribed.
Explanation. - For the purposes of clause (b), the
expression "buildings" shall not include, -
(a) cessed buildings in the island City of Mumbai as
defined in clause (7) of section 2 of the Maharashtra
Housing Area Development Act, 1976, or old buildings
belonging to the Corporation.
(b) buildings constructed with permission of the
relevant authority at any point of time;
(c) any building in an area taken up under the Urban
Renewal Scheme.
(2) In determining whether buildings are unfit for human
habitation for the purposes of this Act, regard shall be had
to the condition thereof in respect of the following matters,
that is to say, -
(a) repairs;
(b) stability;
(c) freedom from damp;
(d) natural light and air;
(e) provision for water-supply;
(f) provision for drainage and sanitary
conveniences;
(g) facilities for the disposal of waste water;
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and the building shall be deemed to be unfit as aforesaid, if,
and only if, it is so far defective in one or more of the said
matters that it is not reasonably suitable for occupation in
that condition.
(3) Any person aggrieved by a declaration made under
sub-section (1) may, within thirty days after the date of
such declaration in the official Gazette, appeal to the
Tribunal. No such appeal filed after the expiry of thirty
days as aforesaid shall be entertained.
(4) When an appeal is presented under sub-section (3), the
Tribunal shall, by a public notice published in a newspaper
in the Marathi language circulating in the local slum area,
call upon the residents of the slum area to file their
objections, if any, to the appeal within a period of fifteen
days from the date of publication of such public notice in the
newspaper as aforesaid, either by themselves or through
any association of residents in the slum area of which they
are members.
(5) On expiry of the period of fifteen days as aforesaid the
Tribunal shall fix a day for hearing the appeal and inform
the appellant about the same by letter under certificate of
posting and the residents of the slum area by displaying the
notice of hearing at some conspicuous place in the slum area
and upon hearing the appellant and the residents or
representative of their association in the slum area, if
present, or on considering the written objections, if any,
made by such residents or association, if absent, the
Tribunal may, subject to the provisions of sub-section (6),
make an order either confirming, modifying or rescinding
the declaration; and the decision of the Tribunal shall be
final.
Explanation - For the purposes of sub-section (4) and this
sub-section, the expression "any association of residents in
the slum area" means a society, if any, of such residents
registered under the Societies Registration Act, 1860 or
under the Maharashtra Co-operative Societies Act, 1960.
(6) While deciding the appeal the Tribunal shall ignore the
works of improvement executed in such slum area by any
agency of the Government or any local authority after the
declaration thereof as such slum area by the Competent
Authority under sub-section (1)."
88. A bare perusal of section 4 would reveal as to how the
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competent authority can notify an area referred to therein and
declare it to be a slum area. Thus, that declaration has to be
published in such manner as will give it due publicity in the area
as notified. However, prior thereto, the declaration must be by a
notification published in the official gazette. That notification has
to be issued by the competent authority, which has been given a
discretionary power to notify the area mentioned in clauses 1(a)
and (b) to be a slum area. However, before the notification is
issued, the competent authority must be satisfied that any area is
or may be a source of danger to the health, safety or convenience
of the public of that area or its neighbourhood by reason of the
area having inadequate or no basic amenities or being insanitary,
squalid, overcrowded or otherwise. Similarly, if the buildings in
any area, which are used or intended to be used for human
habitation are in any respect unfit for human habitation or by
reason of dilapidation, overcrowding, faulty arrangement and
design of such building, narrowness or faulty arrangement of
streets, lack of ventilation, light or sanitation facilities or any
combination of these factors, detrimental to the health, safety or
convenience of the public of that area.
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89. It is rightly emphasised before us that there is no decent
housing for the occupants of a slum area which affects the
residents nearby. Whenever any area, in which such structures
are erected and occupied, their numbers increase gradually, they
become a source of danger to the health, safety and convenience
not only of the public of that area, but its neighbourhood. It is
common ground that those residing in slums do not have even the
basic amenities. They do not have access to toilets, leave alone
clean drinking water, electricity etc. In most of the cases, these
areas once found to be vacant, are inhabited by persons, who
cannot afford any housing accommodation or are brought on
vacant lands by those styled as slumlords taking advantage of
their unemployment and poverty. Looked at from any angle, in
the absence of basic amenities, these areas then are source of
nuisance to those residing in neighbourhood. It is common
ground that proliferation of slums adversely affects public health.
People should not reside in inhabitable and sub-human conditions
for they themselves suffer and together with them, those residing
in the neighbourhood. Thus, these slums take toll of the health of
the residents of a city itself. The diseases with which the
occupants thereof suffer because of lack of basic amenities then
spread around and affect others. For all this, therefore, an
enactment was necessary so that the competent authority can
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take requisite measures.
90. One cannot forget that even the buildings in and around can
be declared as slums and the notification/declaration under
Section 4 (1) can cover them. The buildings are also defined in
the explanation in an inclusive manner.
91. It is not as if this declaration in relation to buildings can be
issued by the competent authority without considering the
relevant and germane matters. These matters are incorporated
in sub-section (2) of section 4 and for the purposes of those
buildings, which are unfit for human habitation. As far as those
areas, the competent authority has to record a satisfaction. As
far as the areas themselves, the competent authority has to
record a satisfaction in terms of clause (a) of sub-section (1) of
section 4. There is an appeal provided against the declaration to
the tribunal. By section 4A, certain slum areas are deemed to be
slum improvement areas.
92. Chapter III is titled as "Slum Improvement" and sections 5,
5A, 5B and 5C thereof read thus:-
"5. (1) Where the Competent Authority is satisfied
that any slum area or any part thereof is capable of being
improved, at a reasonable expense, so as not be a source
of danger to the health, safety or convenience of the
public of that area, it may serve upon a notice informing
them of its intention to carry out such improvement
works as in its opinion are necessary and asking each of
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them to submit his objections or suggestions, if any, to
the Competent Authority, within thirty days from the
date of such notice. A copy of such notice shall also be
displayed at some conspicuous places in the area for the
information of the occupiers thereof and for giving them
also an opportunity to submit their objections or
suggestions, if any. On such display of the notice, the
owners, occupiers and all other persons concerned shall
be deemed to have been duly informed of the
matters stated therein.
(2) After considering the objections and suggestions
received within the time aforesaid, from the owners,
occupiers and other persons concerned, the Competent
Authority may decide and proceed to carry out the
improvements works with or without modifications or
may postpone them for a certain period or cancel the
intention to undertake the works.
5A. For the purpose of this Act, the improvement works
may consists of all or any of the following.-
(a) laying of water mains, sewers and storm water
drains;
(b) provision of urinals, latrines, community
baths and water taps;
(c) widening, realigning or paving of existing
roads, lanes and pathways and constructing new roads,
lanes and pathways;
(d) providing street lighting;
(e) cutting, filling, levelling and landscaping the
area;
(f) partial development of the area with a view to
providing land for unremunerative purposes such as
parks, playgrounds, welfare and community centres,
schools, dispensaries, hospitals, police stations, fire
stations and other amenities run on a non-profit basis;
(g) demolition of obstructive or dilapidated
buildings or portions of buildings;
(h) any other matter for which, in the opinion of
the Competent Authority, it is expedient to make
provision for preventing the area from being or becoming
a source of danger to safety or health or a nuisance.
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5B. (1) Where the Competent Authority undertakes
the improvement works in any area and is of opinion that
any of the occupiers thereof should vacate their
premises, it shall give them notice to vacate by a
specified date or dates. It may as far as practicable offer
such occupiers alternative sites in any other area. If any
occupier fails to vacate and to shift to the alternative site
offered to him within the specified period, the
responsibility of the Competent Authority to provide him
alternative site shall cease.
(2) Notwithstanding anything contained in this
Act, where any occupier does not vacate his premises,
the Competent Authority may take or cause to be taken
such steps and use or cause to be used such force as may
be reasonably necessary for the purpose of getting the
premises vacated.
(3) The Competent Authority may, after giving
fifteen clear days' notice to the persons removed under
sub-section (2), and affixing a copy thereof in some
conspicuous place in the area, remove or cause to be
removed or dispose of by public auction any property
remaining on the premises.
(4) Where the property is sold under sub-section
(3), the sale proceeds shall after deducting the expenses
of sale, be paid to such person or persons as may be
entitled to the same :
Provided that, where the Competent Authority is
unable to decide as to the person or persons to whom the
balance of the amount is payable or as to the
appointment of the same, it shall refer such dispute to a
Civil Court of competent jurisdiction and the decision of
the Court shall be final.
5C. (1) Where the Competent Authority, upon report
from any of its officers or other information in its
possession, is satisfied that any buildings in a slum area
are in any respect unfit for human habitation, or any
slum area or part thereof is or is likely to be a source of
danger to the health, safety or convenience of the public
in that area or in its neighbourhood by reason of the area
having no basic amenities or having inadequate
amenities or being insanitary, squalid, overcrowded or
otherwise a source of such danger, the Competent
Authority may, unless in its opinion the buildings or the
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area are not capable at a reasonable expense of being
rendered so fit or free from such danger, serve upon the
owners of the buildings or lands in the area a notice
requiring them, within such time, which shall not be less
than thirty days, as may be specified in the notice, to
execute such works of improvement, either within or
outside the buildings or the area, as may be specified in
the notice and stating that in the opinion of the Authority
those works will render the buildings or the area fit for
human habitation or free from such danger, as the case
may be.
(2) In addition to serving a notice under this
section on the owners, the Competent Authority may
serve copy of the notice on every mortgage of the
building or land so far as it is reasonably practicable to
ascertain such persons and further a copy of such notice
shall also be displayed at some conspicuous place in the
slum area for the information of the occupiers thereof.
Such display of the notice shall be conclusive proof that
the owners, occupiers and other persons concerned have
been duly informed of the matter stated in the notice.
(3) In determining for the purposes of this Act
whether the building can be rendered fit for human
habitation or the area can be rendered free from danger
aforesaid, at reasonable expense, regard shall be had to
the estimated cost of the works necessary for these
purposes and the value which it is estimated that the
buildings or lands will have when the works are
completed."
93. A perusal of these provisions would reveal as to how the
slum improvement and dealt with by Chapter III has to be carried
out. Section 5 spells out the power of the competent authority of
execution of works of improvement. That is when the competent
authority is satisfied that any slum area or any part thereof is
capable of being improved at a reasonable expense, so as not be a
source of danger to the health, safety or convenience of the public
of that area, it may serve upon the owner or owners and every
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mortgagee of the properties in that area or any part thereof a
notice informing them of its intention to carry out such
improvement works as in its opinion are necessary. After
considering the objections or suggestions, which they are called
upon to submit, the competent authority may decide and proceed
to carry out improvement works with or without modification or
may postpone them for a certain period or cancel the intention to
undertake the works. This is dealt with by section 5. Whereas,
section 5A deals with improvement works.
94. For that purpose, by section 5B, the competent authority
has been conferred with a power to require occupiers to vacate
the premises. By section 5C, the competent authority, upon
report from any of its officers or information in possession is
satisfied that any building in a slum area is in any respect unfit
for human habitation or any slum area or part thereof is or likely
to be source of danger to the health, safety and convenience of
public in that area or in its neighbourhood by reason of the area
having no basic amenities or having no adequate amenities or
being insanitary, squalid, overcrowded or otherwise a source of
such danger, unless in its opinion the buildings or the area are not
capable at a reasonable expense of being rendered so fit or free
from such danger, serve upon the owners of the buildings or lands
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in the area a notice requiring them, within such time, which shall
not be less than thirty days, as may be specified in the notice, to
execute such works of improvement, either within or outside the
buildings or the area, as may be specified in the notice and stating
that in the opinion of the authority those works will render the
buildings or the area fit for human habitation or free from such
danger, as the case may be. The further power is the one to be
exercised after issuance of notice under section 5C and that being
not complied with. By section 6, the competent authority itself
can carry out these works. It can also call upon the notices to
reimburse for expenses of these works of improvement or
maintenance thereof and if they are not paid within the time
specified by it, they shall be recoverable as arrears of land
revenue. There is a provision by which restrictions can be placed
on buildings in slum area and that is to be found in section 8.
Section 9 enables the competent authority to order demolition of
buildings unfit for human habitation and the procedure to be
followed where demolition order has been made is set out in
section 10.
95. By section 10A, which has been inserted later on, there is a
power conferred in the competent authority to entrust
improvement and other works to any agency, but for that
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purpose, it must seek previous approval of the State Government.
96. Chapter IV deals with slum clearance and redevelopment.
Them comes Chapter V, which deals with acquisition of land.
Therein falls section 14, which reads as under:-
"14. (1) Where on any representation from the
Competent Authority it appears to the State Government
that, in order to enable the Authority to execute any
work of improvement or to redevelop any slum area or
any structure in such area, it is necessary that such area,
or any land within adjoining or surrounded by any such
area should be acquired, the State Government may
acquire the land by publishing in the Official Gazette a
notice to the effect that the State Government has
decided to acquire the land in pursuance of this section:
Provided that, before publishing such notice, the
State Government, or as the case may be, the Competent
Authority may call upon by notice the owner of, or any
other person who, in its or his opinion may be interested
in, such land to show cause in writing why the land
should not be acquired with reason therefor, to the
Competent Authority within the period specified in the
notice; and the Competent Authority shall, with all
reasonable despatch, forward any objections so
submitted together with his report in respect thereof to
the State Government and on considering the report and
the objections, if any, the State Government may pass
such order as it deems fit.
(1A) The acquisition of land for any purpose mentioned
in sub-section (1) shall be deemed to be a public purpose.
(2) When a notice as aforesaid is published in the Official
Gazette, the land shall, on and from the date on which the
notice is so published, vest absolutely in the State
Government free from all encumbrances."
97. A bare perusal of section 14 would indicate as to how
certain words were substituted therein by Maharashtra Act 11 of
2012. By Sub-Section (1) of section 14, the State Government,
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which has the power to acquire, on any representation from the
competent authority, may consider acquisition of the property in
order to enable the authority to execute any work of
improvement or to redevelop any area or any structure in such
area. It can, if necessary, acquire such area or any land within,
adjoining or surrounded by such area and then it can publish a
notice to that effect. That is a notice which is to be published in
the official gazette indicating that the State Government has
decided to acquire the area or land in pursuance of this section.
98. The proviso to Sub-Section (1) of section 14 states that
before the notice is published, the State Government, as the case
may be, the competent authority may call upon by notice the
owners of or any other person, who, in its opinion, may be
interested in such land to show cause in writing why the land
should not be acquired with reasons therefor and the competent
authority, upon considering the cause shown, namely any
objections, together with his report in respect thereof, forward all
this to the State Government. On considering the report and the
objections, if any, the State Government may pass such order as it
deems fit.
99. By Sub-Section (1A), it has been clarified that the
acquisition of any of the land for any purpose mentioned in Sub-
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Section (1) shall be deemed to be a public purpose. By Sub-
Section (2), the land shall, on and from the date of which the
notice is so published vest absolutely in the State Government
free from all encumbrances. On such powers, which are noticed
by us as above, we must consider as to whether the petitioners
deserve any relief in writ jurisdiction.
100. By an order dated 29th September, 2014 on this petition,
this court directed that no coercive steps shall be taken for
dispossessing the petitioners. On 7th January, 2015, this court
passed an order in terms of prayers (d-1) to (d-3). Then, this
petition appeared before several benches until we heard it and the
arguments were concluded.
101. The notification dated 3rd April, 2014 (the impugned one)
proceeds to read thus:-
"HOUSING DEPARTMENT
Madam Cama Marg, Hutatma Rajguru Chowk, Mantralaya,
Mumbai 400 032, dated the 3rd April 2014
NOTIFICATION
MAHARASHTRA SLUM AREAS (IMPROVEMENT,
CLEARANCE AND REDEVELOPMENT) ACT, 1971.
No. Bhusampa. 2012/C. R. 343/Zopni-2. - Whereas,
on a representation from the Additional collector
(Encroachment and Removal) and Competent Authority,
Eastern Suburbs, Mumbai Suburban District, Mumbai, it
appears to the Government of Maharashtra that in order
to enable the said Authority to execute the works of
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improvement in relation to the slum areas mentioned in
Schedule appended hereto (hereinafter referred to as "the
said Schedule") it is necessary that the land specified in
column (5) of the said Schedule (hereinafter referred to as
"the said land") should be acquired;
And whereas, as required by the proviso to sub-
section (1) of section 14 of Chapter V of the Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971 (hereinafter referred to as "the said Act") as
amended from time to time the Additional Collector
(encroachment/Removal) and Competent Authority,
Eastern Suburbs, Mumbai Suburbs District, Mumbai has
by his Notice No. Addl.Coll./ENC/REM/Mes/Desk-1/WS-
195/12, dated 3rd July 2012 served in the prescribed
manner and also notice published by Additional Collector
(Encroachment/Removal) and Competent Authority,
Eastern Suburbs, Mumbai Suburbs District, Mumbai in the
daily News Papers "Samna" and "DNA" dated 2 nd June
2012 called upon the persons mentioned in column (6) of
said Schedule, who are the owners of the said land to show
cause, within a period of fifteen days from the receipt of
the aforesaid notice, as to why the said land should not be
acquired;
And whereas, as required by the proviso to sub-
section (1) of section 14 of Chapter V read with Paragraph
(A) of sub-clause (i) of clause (c) of section 3D of Chapter
I-A of the said Act, Chief Executive Officer, Slum
Rehabilitation Authority, Bandra, Mumbai, as by his notice
No. SRA/ Dy.Coll./ T/D4/ Saichhaya/ Hearing/ 2013/ 401,
dated the 14th March 2013 served in the prescribed
manner, called upon the persons mentioned in column (6)
of the said schedule who are the owners of the said land to
be heard on 22/03/2013, 06/04/2013, 20/04/2013 and
17/05/2013 as to why the proposal to acquire the said land
for implementation of the Slum Rehabilitation Scheme for
the concerned protected slum dwellers should not be sent
to the State Government for approval;
And whereas, chief Executive Officer, Slum
Rehabilitation Authority, Bandra, Mumbai after
considering objections received of the owner of said land
and the pleading on behalf of the proposed Co-operative
Housing Society of the Slum dwellers, entries as to the
rights in the land record, reservation in Development Plan
and the legitimate request of the protected slum dwellers,
Chief Executive Officer, Slum Rehabilitation Authority,
Bandra, Mumbai submitted a proposal of the acquisition of
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the said land mentioned in column (6) of the said schedule;
by his representation dated 11th June 2013;
And whereas, as required by proviso to sub-section
(1) of section 14 of Chapter V read with Paragraph (A) of
sub-clause (i) of clause (c) of section 3D of Chapter I-A of
said Act, on a representation dated 11th June 2013 from
the Chief Executive officer, Slum Rehabilitation Authority,
Bandra, Mumbai, it appears to the State Government that
in order to enable to Slum Rehabilitation Authority to
carry out the development under the Slum Rehabilitation
Scheme in the slum areas mentioned in column (4) of the
said Schedule, should be acquired;
Now, therefore, in exercise of the powers conferred
by sub-section (1) of section 14 read with Paragraph (A) of
sub-clause (i) of clause (c) of section 3D of the said Act,
the Government of Maharashtra hereby declares by his
notice, that it has decided to acquire the said lands."
102. The petitioners state that they had, by several
communications in writing, indicated that they are ready and
willing to implement the Slum Rehabilitation Scheme on the
portion of the land, which is the subject matter of the impugned
notification and offered all the benefits permissible in law to
eligible slum dwellers. We deem it fit to start our reasoning with
this issue and consider whether the documents relied upon by
Dr.Sathe and annexed to the petition at all demonstrate that the
petitioners were sincere, genuine and acted bonafide when they
addressed such communications.
103. Reliance in this regard is placed heavily on page 44 of the
writ petition first and that is a letter dated 8th December, 2009.
Pertinently, this is a letter addressed to the competent authority
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in response to the proposal or request from Sai Chaya Co-
operative Housing Society (proposed) requesting the competent
authority to make the necessary inquiry and report and proceed
to initiate steps for acquisition of the subject property,
particularly CTS No. 82(part). In this communication, which is
essentially an objection to the proposal of the said Sai Chaya Co-
operative Housing Society (proposed), the petitioners do not
dispute that the property admeasuring 45414.4 square meters
from larger property is declared as slum on 30 th June, 1977.
Then, they indicated that one Milind Nagar Co-operative Housing
Society (proposed) commenced slum redevelopment work and at
that time, it came to the notice of the petitioners that the area of
45414.4 square meters of CTS No. 82 is wrongly mentioned as
5414.4 square meters. Therefore, it requested that a
corrigendum be issued to correct the area. The petitioners
indicated that Milind Nagar Co-operative Housing Society
(proposed), with the consent of the petitioners, had moved for
declaration of the entire area as a slum and that request was
made in writing on 12th February, 2009 and 4th June, 2009. This
letter indicates that the petitioners have prepared all the
requisite documents. They had made the preparation and have
taken steps to obtain redevelopment agreements, membership
agreements, power of attorney from the slum dwellers. It is in
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these circumstances that they supported the proposal of M/s. Sai
Chaya Co-operative Housing Society (proposed) that CTS No. 82
should be declared as a whole as slum area. However, they were
opposing the redevelopment of the property by Sai Chaya Co-
operative Housing Society (proposed) or through other developer.
104. To our mind, this letter does not indicate anything other
than the petitioners' readiness and willingness for declaring the
property as a slum area. It does not indicate that any steps were
taken beyond some preparatory measures.
105. Then at page 64 Annexure 'F' is written say of the land
holders, namely, the petitioners in opposition of the proposal of
Sai Chaya Co-operative Housing Society (proposed). We have
already indicated in the course of noting the arguments of
Mr.Dhakephalkar that this letter only sets out that the
petitioners are intending to develop the said property themselves.
They fault the applicant Sai Chaya Co-operative Housing Society
(proposed) for not approaching them nor making any attempt to
give their consent to develop the property. They would only refer
to the earlier letter dated 8th December, 2009. This say, at best,
indicates that the petitioners not by themselves, seeking to
develop most of their lands lying and situate at Bhandup Estate
and they have already entered into a joint venture with reputed
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groups. Then, at page 87 of the paper book, the petitioners
respond to the notice under section 14(1) issued by the
Additional Collector. In that as well, nothing but the so called
intendment is reiterated. However, beyond urging that there is a
necessity of development of most of the petitioners' land at
Bhandup Estate and they have entered into a joint venture with
reputed groups, no details and particulars are set out. This is an
endorsement of the written say referred above. Then, at page
114 of the paper book, the petitioners filed their additional
written say and that is in reply to the above notice. In that, they
stated that the proceedings for acquisition of the property under
section 14(1) were initiated by the Deputy Collector
(Encroachment and Removal) and Competent Authority and an
intimation was given to them on 23rd February, 2012. There is a
reference to these proceedings and a notice sent under section
5(1) to the land owners on 7th March, 2012. This notice was
received and a composite reply was given to both the notices
under section 14(1) and section 5(1), in which, it was stated that
the proceedings under section 5 and a notice contemplated
thereby were closed by the competent authority on 20 th March,
2012. Then, what this additional reply states is that the
proceedings under section 5(1) be reinstated and no further
proceedings under section 14 of the Slum Act be initiated. At the
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same time, a request was made to quash the notice under section
14(1) dated 23rd February, 2012. In this as well, we do not find
any reference to some steps, much less real and concrete being
taken. Then, there is a reference made to page 165 of the paper
book. That as well is nothing but a written submission on behalf
of the land owners and filed before the Chief Executive Officer of
the SRA. In that, it is stated that the land holders' constituted
attorneys, on behalf of the co-owners of the property belonging to
Bhandup Estate alias Bhandup Khot alias Ratansey Karsandas
and Others are fully empowered to deal with and carryout the
development under Slum Rehabilitation Scheme in the interest of
improvement and clearance of slums. They refer to certain power
of attorneys. Beyond stating that the owners intends to develop
the property themselves and faulting the Sai Chaya Co-operative
Housing Society (proposed) for not approaching them for seeking
any consent for redevelopment of the property, nothing has been
stated which would indicate that by then some steps were taken.
The steps, which were referred to in the prior communication
were also not taken to their logical end. There is absolutely
nothing beyond reiterating the contents of the earlier
communications. It is in these circumstances we do not think
that any of these documents can be said to be evidencing the
petitioners' sincere and genuine desire to extend all benefits to
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the eligible slum dwellers and to implement a Slum Rehabilitation
Scheme. This does not indicate that there was any attempt made
to obtain the consent of the 70% slum dwellers. This does not
indicate that the slum dwellers, who had throughout been
requesting the authorities to take steps either to commence the
works of improvement or to take them to their logical end by
acquiring the property, were convinced by these petitioners or
the joint venture allegedly entered into. They never gave their
consent and to join any scheme. There was never any scheme
from the petitioners. These communications are nothing but
responses to the notices of the competent authority and the
Additional Collector and extracts from the written submissions
filed during the proceedings before them. Beyond one sentence or
one line that the petitioners were intending to and always ready
and willing to carry out the improvements or develop the
property, nothing has been done. These documents, far from
assisting Mr.Sathe, would evidence that the petitioners did not
pay any attention to the maintenance and repairs of the property,
its upkeep and extended to the slum dwellers the basic amenities.
They did not create any hygienic and healthy conditions, by
which, the slum dwellers would feel safe and secure. Instead, by
their acts of omission and commission, they allowed the property
to deteriorate and to such an extent that it became completely
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unsafe and started posing a danger not only to the life of the
occupants but to the neigbourhood. These are typical responses
from those for whom any plot piece or parcel of land, whether or
not in a vacant state, situate in Mumbai city or suburbs, but held
or owned by them commands a price in the market. Even if there
are encumbrances or encroachment thereon it has potential for
development. Such persons do not care for those residing in the
dilapidated structures or slums on such lands. Providing them
basic amenities so that they can live as human being is never
there concern.
106. The parties like the petitioners are never bothered about
the slum dwellers. They never intend to rehabilitate them and it
is then either the duty of the State or the slum dwellers
themselves to take the initiative to develop the land. Mr. Sathe
then relied upon grounds 'A', 'E', 'I' and 'M' to the petition. In
ground 'A' at page 13 of the paper book, the petitioners state that
as per Chapter I-A under the provisions of Section 3B of the Slum
Act, the owners of the property, which is declared as a slum, have
a peremptory right to develop the slum. In the event, if the
owners desire to redevelop the property, the provisions lay down
the parameters for declaration of any area as slum rehabilitation
area and manner in which rehabilitation of such area shall be
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carried out including the provision for obligatory participation of
the landholders and occupants of the area declared as slum
rehabilitation area in the implementation of Slum Rehabilitation
Scheme and the provision gives option to the SRA for taking up
such development in the event of non-participation of the
landholders or occupants. Beyond one sentence that respondent
nos. 2, 3 and 4 failed to appreciate that the petitioners being
landholders were always willing to develop the said land under
the Slum Rehabilitation Scheme nothing has been stated as to
whether any Slum Rehabilitation Scheme was made and
presented to the SRA and approval and permission sought for its
implementation.
107. In ground 'E', we find nothing but a statement that
respondent no. 6 Sai Chaya Co-operative Housing Society
(proposed) neither approached the petitioners nor made any
attempt to express their willful consent for development of the
land by the petitioners. In ground 'I', the petitioners have stated
that they had issued the no-objection certificate to the Milind
Nagar Co-operative Housing Society (proposed) for
redevelopment. The petitioners state that Milind Nagar Co-
operative Housing Society (proposed), with the consent of the
petitioners, had moved an application to respondent no. 2 to
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develop portion of the entire said land admeasuring 45414 square
meters and accordingly, made applications to respondent nos. 2
and 3 to issue corrigendum to that effect. This application was
made prior to the application of respondent no. 6, but that
application of Milind Nagar Co-operative Housing Society
(proposed) is still pending. How that proves that the petitioners'
are redeveloping the property as owners and by themselves has
not been clarified at all. In ground 'J', it is stated that the
petitioners entered into a joint venture with reputed groups. The
said vague statement has come in several communications
emanating from these petitioners. No particulars of any joint
venture have at all been furnished, leave alone any steps taken in
pursuance of the alleged joint venture. In ground 'M' as well, the
petitioners, barring reiterating the same statement that they
were ready and willing to develop entire larger property,
including the said land, fault everybody, particularly respondent
nos. 2 to 4 for taking cognizance of the application and request of
respondent no. 6. These are thus absolutely no steps or measures
which have been taken by the owners themselves. If the owners
really care for the property and were moved by the plight of the
occupants and slum dwellers, by this time, they would have
definitely taken the requisite steps. In the memo of the petition
itself, they have narrated as to how the competent authority
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issued a notification dated 30th June, 1977 declaring the parcels
of land of village Bhandup as slum area. They capitalised on the
so called error in the notification, copy of which is at Annexure
'A', namely, dated 30th June, 1977. The petitioners have
themselves disclosed as to how the further notification dated 22 nd
June, 2011 and which declared the lands in the Schedule, namely
new CTS No. 82A/1 and old CTS Nos. 82, 82A and 82/1 to 82/5 as
slum areas came to be issued. This notification is also issued
under section 4(1) of the Slum Act. This indicates the number of
huts/structures and the area of 3747.384 square meters. The
earlier notification of 1977 was issued for the areas mentioned
more particularly therein, but suffers from some alleged
typographical error. We do not think that the owners and those
before us through their constituted attorneys are really
interested in development of the property. They claim to be
citizens of India and co-owners of Bhandup Estate, which is
comprising of huge tracts of land in the revenue villages, namely,
Bhandup, Kanjur and Nahur. This estate came to the predecessor
of the petitioners as a grant by the East India Company.
108. We have respondent no. 6, which, on the own showing of the
petitioners, is proposed co-operative housing society of the
occupants of CTS Nos. 82A/1 and 82/2 to 82/5 of village Bhandup,
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taluka Kurla, Mumbai Suburban District. Thus, a larger property
as also the above mentioned portions are both slums. They are
slums because of the notifications issued under section 4(1).
Those notifications have been issued under section 4(1) of the
Slum Act upon the satisfaction of the competent authority and
which we have enumerated above. That satisfaction of the
competent authority has never been challenged and therefore,
the legality and validity of the notifications thus has not been put
in issue at all. The petitioners have accepted the position that
there are slums and those living therein have no basic amenities.
Once the subjective satisfaction is recorded and in terms of the
statutory provisions, then, it is proved that the area is a danger to
the health, safety or convenience of public and occupants thereof
by reason of the same having no basic amenities. The areas are
thus insanitary, squalid and overcrowded. When the legislature
uses these words and phrases, they are not merely inserted to
describe the state of such properties, but how an account of lack
of basic amenities a slums presents an extremely ugly and
unpleasant site. People residing in such areas cannot be allowed
to suffer. It is not just they who suffer by lack of basic amenities
like clean drinking water, toilets, proper roads and sanitation, but
even those residing in the neighbourhood. It is a continuing
threat to public health as well. These places breed illness and
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contagions diseases. There is no sewerage. Thus, no drainage or
an underground conduct for carrying off drainage and waste
matter. This untreated waste water and human waste brings
with it several serious ailments and diseases. They pollute the
whole city and suburbs. It is common ground that open
defecation is unhealthy that affects adversely human health.
Mumbai city has already earned a name and reputation. There
are 12 lac slums, in which about 57 lac people approximately
reside. These structures and the alarming increase in their
number, therefore continues to be a source of danger to safety
and health of all residents. The garbage, waste, is open and lying
everywhere. Even the railway tracks, roads, pavements and
footpaths are full of debris and waste. We do not think that if such
is the state of one of the properties and in a suburb of Mumbai city
then we must allow the owners to raise frivolous complaints and
grievances, which have no substance. They have lost the rights in
the property for now the property vests in the State. We do not
see how any complaint can be made by the petitioners, who are
claiming to be owners of the property and when they do nothing
for its repairs, maintenance and upkeep, much less improvement
and development. At the instance of such petitioners, therefore,
we are not inclined to exercise our writ jurisdiction. They do not
deserve any relief in our discretionary and equitable jurisdiction.
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109. They also do not deserve any relief because having accepted
that all the notifications declaring the properties as slum were
issued, they are now complaining that the acquisition of the said
properties for carrying out works of improvement and
redevelopment is bad in law.
110. They have not been able to demonstrate any prejudice,
much less serious for ample opportunities were provided to them
to carry out such works. The petitioners, in their writ petition
itself have annexed several documents, which would indicate that
notices were served upon them from time to time. A complete
elaboration of the steps taken prior to the issuance of the
impugned notification is enlisted in the affidavit in reply of
respondent no. 4. We have reproduced these statements in the
affidavit in reply only with a view to reinforce our conclusion that
none of the statements or facts are denied. The petitioners in
their rejoinder affidavit and when they deal with the reply of
respondent no. 4 do not deny that the notification dated 30 th
June, 1977 was never questioned. They have not denied that
they received the notices from the competent authority and from
the Additional Collector and they duly replied to them. All their
written replies and written arguments were noted and
extensively. The petitioners do not deny even the statements
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made in the affidavit in reply of respondent no. 6 for that society
denies that the petitioners have supported any proposal of Milind
Nagar Co-operative Housing Society (proposed) or that any such
proposal was ever on the record of the authorities. In fact, these
replies reiterate that the petitioners received all the notices and
were offered due opportunities to place their version before the
authorities. Thus, this is a clear after thought on the part of the
petitioners and when they realise that they have lost the right,
title and interest in the property that they have now raised some
grounds and submitted that they give rise to questions of law.
They now say that the notification acquiring their property is not
valid and legal.
111. We do not think that at the instance of such petitioners we
should examine any larger issues or questions.
112. The petitioners have never put in issue the power of the
respondents to take recourse to section 14(1) of the Slum Act.
That provision itself has been held as constitutionally valid and
legal by a Division Bench judgment of this court in the case of
Sara Harry D'mello vs. State of Maharashtra1
113. We do not find the petitioners' grievance to be of substance.
They first raised the issue of the subject notification being issued
1 (2013) 4 Mah. L. J. 348.
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under Section 14(1) of the Slum Act and then stated that the
notification could not have been issued under that provision
unless compliance was made with sections 5, 11, 12 and 13 of the
Slum Act. We think that such complaint cannot be made by the
petitioners for the simple reason that on facts we have found
several opportunities being provided to them not only to raise
objections, but these objections were duly noted and considered.
They form part of the report of the authorities, which precede the
issuance of this notification and based on which the Government
came to the conclusion that the authorities ought to be enabled to
carry out necessary measures and take the requisite steps so as
to redress the serious grievances of the slum dwellers. They are
languishing in the slums for nearly four decades. The steps and
as envisaged by the above provisions were taken and at all stages
the petitioners were aware of the same. They knew that they
have to meet the case of a acquisition of their property in exercise
of the power of eminent domain so also in terms of Section 14 (1)
of the Slum Act. The representation of the Competent Authority
and the Additional Collector was forwarded after giving the
petitioners complete opportunity of hearing at which all the
documents could have been produced. That is not the complaint
either. The petitioners' stand as reflected in their written replies
is peculiar. They do not dispute ever that the basic amenities are
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not available. They do not dispute that there was a notification
issued in 1977 declaring the area more particularly referred in
para 8 as slum. That was never challenged. If one Co-operative
Society of Slum Dwellers (Milind) is seeking to develop the
property for obtaining basic amenities, the petitioners were
agreeable thereto, then, that exposes them totally. For the
balance area or another slum pocket falling in the estate, the
petitioner cannot be heard to say that they are agreeable to that
being declared a slum but they are not ready or rather opposing
its acquisition. The petitioners are not agreeable to the
respondent no. 6 developing the slum area declared as such in
2011. That area was equally neglected and lacked basic
amenities. If the State steps in to acquire it for redevelopment,
then, that is a acquisition for a public purpose (See Section
14(1A)). A redevelopment of a specific slum area is thus the
purpose of acquisition which fulfills the aim and object of the
Slum Act. We cannot countenance any arguments to the contrary
in the light of the facts emerging from the record. More so, when
the same are admitted.
114. Once we come to the above conclusion, we do not think that
we should examine the contention of Mr. Sathe that the present
acquisition proceeding is under Chapter I-A as amended by the
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Maharashtra Act 11 of 2012 and hence, the provisions of sections
4, 5, 6, 7, 8, 9, 10 and 11 stand deleted and are inapplicable. This
contention is raised by Mr. Sathe by submitting that provisions of
Chapter I-A will apply only on issuance of declaration under
section 3C of the Slum Act. We do not think that the petitioners
can raise this grievance and merely by referring to some of the
contents of the notification and reading them in part.
115. If the subject notification at page 216 is read in its entirety,
it may be referring to some other provisions, but it is essentially
based on the representation from the Additional Collector and
Competent Authority, Eastern Suburbs, Mumbai Suburban
District, Mumbai. It refers to the proviso to sub-section (1) of
section 14 as amended from time to time, but then points out that
the Additional Collector and Competent Authority had, by the
notice dated 3rd July, 2013, served in the prescribed manner and
also published in the daily newspapers, called upon the persons
mentioned in column 6 of the Schedule to the notification, who
are owners of the said land to show cause as to why the land
should not be acquired. It is making reference to proviso to sub-
section (1) of section 14 of Chapter V and some other Chapter,
namely, Chapter I-A, but that is nothing but a reference to the
steps taken by the Chief Executive Officer of the SRA. Even he
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issued the notice and called upon the owners to indicate as to why
the property should not be acquired. That course was adopted in
order to consider the feasibility of implementing a slum
rehabilitation scheme. Thus, it is a additional representation and
material on record enabling the State to exercise its power of
acquisition. The Chief Executive Officer agreed, as set out in
paras 32 to 34 with the Competent Authority and the Additional
Collector. Their reports were already forwarded to the State
Government. Merely because the State Government in this case
and in peculiar facts called for a report from the CEO of the SRA
does not mean the respondent no. 1 had abandoned its earlier
exercise or decided to proceed only under the amended chapter
IA of the Act. The CEO also gave several opportunities,
considered the objections and submitted a proposal for acquisition
by his representation dated 11th June, 2013. It is in these
circumstances that both provisions are referred, but if one refers
and consider the entire factual data, it would be clear that the
steps were taken pursuant to the declaration dated 30 th June,
1977 and thereafter, the proposal of respondent no. 6 to declare
an area admeasuring 3747.384 square meters as slum because
that area or portion on which their structures are standing and
which were occupied by them, was taken into consideration. The
petitioners even objected to this proposal and request from
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respondent no. 6. Then, the notification under section 4(1) was
issued, which declares the area admeasuring 3747.384 as slum
and which is in addition to the earlier 1977 notification.
Thereafter, notice was issued by respondent no. 2 to this writ
petition under section 14(1) of the Slum Act. The petitioners
replied thereto on 1st March, 2012. Now in one breath the
petitioners term these notices at page 48 not as notices under
section 14(1) but under section 5(1). We have clearly indicated
that Annexure 'C' at page 50 of the paper book is a notice dated
23rd February, 2012, which refers to section 14(1) of the Slum
Act. That was replied on 1st March, 2012. It may be that the
petitioners were also in receipt of a notice dated 7 th March, 2012.
That refers to firstly the proceedings under section 14(1) at the
instance of respondent no. 6 and then the letter dated 19 th
January, 2012. Therefore, this is a compliance made with section
5. Therefore, this notice at page 59 is also a compliance made
with section 5(1) of the Slum Act. The petitioners cannot make a
grievance that notice under section 5 was not issued. Even that
has been issued and the petitioners filed detailed reply thereto on
20th March, 2012. In that reply, they clearly say that they are
replying to an application filed for acquisition of land under
section 14(1) of the Slum Act. They prayed that this notice be
dropped. Then, it is clear that there was a report made by the
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Deputy Collector and Competent Authority to the Additional
Collector dated 30th April, 2012, after which, notice under section
14(1) was also issued on 20th May, 2012. It is in these
circumstances that the further steps were taken by the
Additional Collector. His representation forms the essential
foundation on which section 14(1) was invoked and the
proceedings for acquisition were initiated and duly completed. In
such circumstances, we do not think that the petitioners, who
claim that they were ready and willing to take requisite steps and
carry out redevelopment but did nothing, should be granted any
relief. The Petitioner's did not enjoy the support of 70% of the
slum dwellers inhabiting the area covered by the 2011 Slum
Notification. They also did not take forward nor did the Milind
Society pressed its proposal which the petitioners were heavily
banking upon. The Petitioner's version and stand is perplexing to
say the least. They rely on a Circular issued in November, 2015
to urge that the consent of 70% is not mandatory. Their request
is that this condition of 70% consent of slum dwellers now stands
dispensed with. We do not see how the concluded Acquisition
proceedings in this case can be set at naught by us by relying on
this circular. We also cannot hold that the petitioners or Milind
Society's proposal was pending and that covered the entire slum
area. No such proposal is on record of the Authorities. Hence,
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there was no impediment in considering the proposal of
Respondent No.6. Hence, all the judgments of this court on this
point are distinguishable on facts. Similarly, we do not think that
there is any necessity of deciding any wider legal controversy
bearing in mind the facts of this case. Hence, we do not deem it fit
to refer to any alleged divergence in the views recorded by the
Division Benches in Ramkali (supra) and Maruti Mane (supra)
and those in the case of the later judgment in Apurva Parikh
(supra). That can be considered in a more deserving case. Lastly,
the acquisition can neither be held to be arbitrary nor mala fide.
It is not to favour any builder or developer, but to implement a
scheme of rehabilitation of the slum dwellers represented by the
proposed society of slum dwellers (Respondent no.6) and to re-
develop the property for the benefit of eligible slum dwellers.
How, then we can interfere with such measure, more so when it is
taken after due compliance with law. Thus, equity and justice is
not with the petitioners but heavily against them.
116. For the above reasons, we do not think that the writ petition
has any merit. It is dismissed. Rule is discharged. However,
there would be no order as to costs.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
