Bombay High Court
Yogesh Chandulal Mehta And Suresh ... vs The State Of Maharashtra And 3 Ors on 13 April, 2023
Bench: R.D. Dhanuka, M. M. Sathaye
2023:BHC-OS:2864-DB
WP 2338 of 2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2338 OF 2017
1. Yogesh Chandulal Mehta,
Adult, Occupation:Business
2. Suresh Chabndulal Mehta,
Adult, Occupation: Business,
Both 1 and 2 having office at 327/328
Vyapar Bhavan, P. D. Mello Road,
Carnar Bandar, Mumbai-400032 ..Petitioners
Versus
1. The State of Maharashtra
through its Principal Serectary,
Housing Department, Mantralaya,
Mumbai 400032
2. Chief Executive Officer,
Slum Rehabilitation Authority,
having office at New Administrative
Building, Prof. Anant Kanekar Marg,
Bandra (E), Mumbai-400051
3.Addl. Collector (Encroachment),
Mumbai Suburban District, having
office at 7th floor, Administrative Building
Bandra (E), Mumbai-400051
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4. Shivneri Navgruh Nirman Vith
Bhatti S.R.A. Co-operative Housing
Society having its office at CTS No. 29,
30, 31, 32, 33 of village Dindoshi, Malad (E),
Mumbai 400051.
5. Vishwas Patil
Age: Adult, Occup:
701, Beach Apartment,
Dr. A. B. Nair Road, Opp. Novatel Hotel,
Juhu Vile Pare (W) Mumbai 56
6. Atlantic Construction Company
A, Proprietary Firm, having office
at 209, Atlantic Commercial Tower,
Patel Chowk, Ghatkopar (E), Mumbai 400077 ..Respondents
Mr. Atul Damle, Senior Advocate a/w. Mr. Abhijeet Patil for the
Petitioners in WP No. 2338 of 2017
Mr. Abhay L. Patki, Addl. Government Pleader a/w. Mr. Laxmikant
Satelkar, AGP for the State-Respondent
Mr. Abhjeet Desai a/w. Mr. Karan Gajra a/w. Mr. Dilip Jadeja for the
Respondent No.2 SRA
Mr. Cherag Balsara a/w. Mr. Pranesh Gada for Respondent No.4 in
WP No.2338 of 2017
Mr. Yogesh Patil a/w. Ms. Leena Shah i/b. Shah & Furia Associates
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for Respondent No.6 in WP No. 2338 of 2017
Ms. Mansi Marlewar, Naib Tahsildar, SRA present in Court
CORAM:- R. D. DHANUKA AND
M.M. SATHAYE JJ.
RESERVED ON 20 FEBRUARY,2023
PRONOUNCED ON 13 APRIL,2023
JUDGMENT [PER R.D. DHANUKA, J.]
1. Rule. Mr. Abhay Patki waives service on behalf of
State. Mr. Abhijeet Desai waives service on behalf of
Respondent No.2-SRA. Mr. Cherag Balsara waives service on
behalf of Respondent No.4. Mr. Yogesh Patil waives service on
behalf of Respondent No.6. Rule is made returnable forthwith.
By consent of parties, taken up for final hearing.
2. The Petitioners in Writ Petition No. 2338 of 2017
filed under Article 226 of the Constitution of India have
prayed for a Writ of Certiorari for quashing and setting aside
the impugned Notification dated 17 th November, 2016 issued
under Section 14(1) of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (for
short "Slum Act") to the extent of acquisition of Petitioner's
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land bearing CTS No. 31 (part), admeasuring near about
3705.2 sq.mtrs of Village Dindoshi, Taluka Borivali, District
Mumbai and also for quashing and setting aside the impuged
Notice dated 20th March, 2017 and impugned Award dated
20th June, 2017 passed under Section 17 of the Slums Act to
the extent of the writ property. The Petitioners also pray for
writ of mandamus against the Respondents not to act upon
the impugned Notification dated 17 November, 2016 and not
to grant/issue any further permission/s in favour of the
Respondent No.4 for implementation of the Slum
Rehabilitation Scheme on the writ property.
3. The Petitioners are the owners of the writ property.
On 27th October, 1977, SRA issued a Notification under
Section 4 of the Slums Act and published in the official
Gazette declaring that the writ property as slum area. It is the
case of the Petitioners that on 19 th September, 1985 by
Articles of Agreement, the Petitioners purchased the writ
property from the original owner Mr. Venilal J. Kanthara by
paying valid consideration to him. The said Article of
Agreement dated 19th September, 1985 was duly registered
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with the Office of Registration on 5th October, 1985. The
Index-II was issued by the Competent Authority showing
names of the Petitioners as the owners of the writ properties.
The property card was also issued in respect of the writ
property showing the names of the Petitioners as the owners.
4. It is the case of the Petitioners that the Petitioners
have been regularly paying the property taxes. On 3 rd
February, 2010, the Petitioners addressed a letter to the Chief
Executive Officer of SRA informing that the Petitioners are the
owners of the subject property and no Slum Rehabilitation
Scheme should be sanctioned on the subject property without
their consent. The Petitioners also showed their readiness and
willingness to develop the subject property under the Slum
Rehabilitation Scheme.
5. On 12th March, 2010, the Petitioners made a
complaint to Senior Police Inspector, Goregaon Police Station
informing that on the subject property, a society has put up a
board of developer stating that they are going to develop the
subject property under the Slum Rehabilitation Scheme. On or
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around 30th March, 2010, the Deputy Collector
(Encroachment) and the Competent Authority, Malad and the
Additional Collector (Encroachment), Mumbai Suburban
District issued a public notice in respect of the proposed
acquisition of the subject property.
6. It is the case of the Petitioners that the said public
notice was issued without supplying a copy of the written
application filed by the Respondent No.4 for acquiring the
writ property. On 3rd April, 2010, the Petitioners filed their
written objections with the Deputy Collector (Encroachment),
the Competent Authority and the Additional Collector
(Encroachment), Mumbai Suburban District in respect of the
proposed acquisition of the subject property and pointed out
that they being the owners were interested in development of
the subject property themselves under the Slum
Rehabilitation Scheme and therefore writ property should not
be acquired under Section 14 of the Slums Act.
7. Some time in the year 2010, the Petitioners filed a
Writ Petition No. 970 of 2010 in this Court inter-alia
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challenging the public notice dated 30 March, 2010 proposing
to acquire the Petitioners' property by the Slum Authority. It is
the case of the Petitioners that the Petitioners filed an
affidavit pointing out that they were always ready and willing
to implement the Slum Rehabilitation Scheme on the subject
property and they would also rehabilitate all the eligible slum
dwellers under Regulation 33(10) of the Amended
Development Control and Promotion Regulation 2034. On 10
February, 2011, this Court disposed of the said Writ Petition
No. 970 of 2010 and directed that the Competent Authority
shall consider the proposal in light of those objections raised
by the Petitioners including on the basis of the law as laid
down by the Division Bench in the aforesaid case. It was made
clear that in the event, State Government decided to acquire
the land, intimation of that decision shall be furnished to the
Petitioner to take recourse to such remedies as are available
in law.
8. On 17 February, 2011, the Petitioners raised the
detailed objections to the Slum Authority in respect of the
proposed acquisition of the writ property. On 15 June, 2011,
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the Petitioners through their Advocate called upon the
Authorities not to take any steps in respect of acquisition of
the subject property and also pointed out about the order
dated 10 February, 2011 passed by this Court. On 4 January,
2012, the Respondent No.2, the Chief Executive Officer of
SRA issued public notice under Section 37(1) (B) of the MRTP
Act, calling for suggestions and objections for change of
reservation in respect of the subject property as the same was
reserved for the purpose of recreation ground as per D.P.
remarks of Municipal Corporation.
9. On 31 January, 2012, the Petitioners vide their
letter conveyed that they had no objection for change of
reservation provided the Petitioners are allowed to implement
the Slum Rehabilitation Scheme on the writ property. On 3 rd
February, 2012, the Petitioners submitted objections in
pursuance to the notice issued by the Chief Executive Officer
of SRA under Section 37(1)(B) of the MRTP Act and requested
to allow the Petitioners being the owners to implement the
Slum Rehabilitation Scheme under the Regulation 33(10) of
the DCPR 2034.
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10. On 3 March, 2012, the Petitioners requested the
Chief Executive Officer of SRA to allow them to implement the
Slum Rehabilitation Scheme on the writ property and also
requested to record the proposal submitted by the
Respondent No.4 in respect of the writ property on the basis
of forged, fraudulent and bogus documents. The Petitioners
also raised the objection against the Public notice dated 4
January 2012 and requested that the Petitioners be allowed to
implement the Slum Rehabilitation Scheme on the writ
property and further made it clear that if they are allowed to
implement the Scheme on the writ property, they shall have
no objection for the change of reservation in respect of the
writ property. On 21st April, 2012, the Petitioners were called
upon for hearing by the Chief Executive Officer, SRA on 8
May, 2012 in respect of the change of reservation issue.
11. On 8 May, 2012, the Petitioners appeared and
pointed out that they had no objection for change of
reservation provided that they are allowed to implement the
Slum Rehabilitation Scheme on their property being the
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owners. On 21 November, 2013, the Chief Executive Officer of
SRA issued alleged notice under Section 14 of the Slums Act
in Free Press Journal and Navakal. On 2 December, 2014, the
CEO of SRA submitted his report to the Chief Secretary,
Housing Department for acquiring the writ property without
following the directions of this Court in Writ Petition No. 970
of 2010 and even without issuing any show cause notice to the
Petitioner, being the owners of the writ property.
12. It is the case of the Petitioners that on 31 st August,
2015, without following the due process of law and without
issuing any show cause notice to the Petitioners as
contemplated under Section 3(c)(1) of the Slums Act, the CEO
of the SRA issued notification under Section 3(c) of the Slums
Act.
13. The Petitioners filed S.C.Suit bearing No.127 of
2016 in the Bombay City Civil Court, Borivali Division at
Dindoshi, praying for restraining the Respondent No.4 from
taking any steps for implementation of the Slum
Rehabilitation Scheme on the subject property without the
express consent of the Petitioners and prayed for an order and
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direction against the CEO of the SRA that he should not take
steps towards implementation of the Slum Rehabilitation
Scheme on the writ property at the instance of the
Respondent No.4 and others.
14. On 10 November, 2016, the City Civil Court was
pleased to pass ad-interim orders in the Notice of Motion filed
by the Petitioners granting injunction restraining the
Defendant No.1, their officers, servants from accepting the
proposal of Defendant Nos.2 and 3 therein or any person
claiming through them from implementing Slum
Rehabilitation Scheme on the suit plot of land i.e. Survey No.
19, having corresponding C.T.S. No. 31, admeasuring about
4464 sq.yd. Equivalent to 3705.2 sq.mtrs. of Village Dindoshi,
Taluka Borivali, Goregaon (E), Mumbai without express
consent of the Petitioners.
15. On 17 November, 2016, the CEO of SRA issued the
impugned notification under Section 14 (1) of the Slums Act
inter-alia for acquisition of the writ property. On 23
November, 2016, the said impugned notification was
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forwarded by the Respondent No.1 to the Respondent No.2
CEO. On 28 November, 2016 the Petitioners through the legal
notice addressed to the Slum Authority pointed out the order
of City Civil Court dated 10 November, 2016 requesting them
to ensure compliance thereof and requested not to accept and
process with the proposal of the M/s. Atlantic Construction
Company on behalf of the Respondent No.4 in respect of the
writ property.
16. On 20 March, 2014, the Petitioners through their
advocate raised objection against the Notification dated 17
November, 2016 and also objected to the proceedings under
Section 17 of the Slums Act by pointing out the orders passed
by this Court as well as City Civil Court. On 11 April 2017, the
Petitioners raised their objection against acquisition of the
writ property without following due process of law as
contemplated under Section 14(1) of the Slums Act and
requested the CEO to recall the notification dated 17
November, 2016. It is the case of the Petitioners that the
Petitioners obtained a copy of the said notification dated 17
November, 2016 from the website of Government of
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Maharashtra. In the month of April, 2017, the Petitioners
filed this Writ Petition for various reliefs.
17. On 5 June, 2017, the Petitioners requested then
Chief Executive Officer of SRA to adjourn the proceedings
initiated under Section 17 of the Slums Act, as the present
Petition was supposed to be heard on 23 June, 2017, the CEO,
however kept the matter on 13 June, 2017. At the request of
the learned Advocate for the Petitioners, the CEO placed the
matter on 27 June, 2017. It is the case of the Petitioners that
on 15 June, 2017, the Petitioners along with their family
members were out of station from 16 June, 2017 to 19 June,
2017.
18. According to the Petitioners, a notice dated 15
June, 2017 was pasted at the residence of the Petitioners
stating that the date of hearing of the Petitioners' case has
been preponed from 27 June, 2017 to 19 June, 2017. The
Petitioners thus could not remain present for hearing on 19
June, 2017 as the Respondent No.2 has already kept the
matter on 27 June, 2017.
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19. The CEO proceeded with the hearing in absence of
the Petitioners at 3.00 p.m. on 19 June, 2017. According to the
Petitioners, Respondent No.4 through its advocate made an
application with malafide intention for hearing of the matter
on the same date and the Respondent No.2 allegedly heard
the matter on the same day i.e. 19 June, 2017 when the
Petitioners were out of station. It is the case of the Petitioners
that on 20 June, 2017 as per Roznama dated 19 June, 2017,
the proceedings were adjourned to 27 June, 2017, however,
were preponed to 19 June, 2017 with malafide intention and
to bypass the order dated 23 June, 2017 passed by this Court.
20. According to the Petitioners the said Roznama was
anti-dated. As per the Roznama, the matter was heard on 19
June, 2017 and closed for orders. On 20 June, 2017, the CEO
made an Award under Section 17 of the Slums Act. On 11 July,
2017, the Respondent No.2 issued a notice upon the
Petitioners directing them to remain present before him
within eight days and to accept the Demand Draft as per the
impugned Award dated 20 June, 2017.
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21. Mr. Damle, learned Senior Counsel for the
Petitioners invited our attention to some of the documents
annexed to the Petition and also to the affidavits in reply and
rejoinder. He also invited our attention to the order dated 23
June, 2017 passed by the Division Bench of this Court in this
Petition. He submitted that this Court had recorded the
categorical assertion on the part of the Petitioners owners
that inspite of directions passed by the Division Bench in 2011
when so-called action was alleged to have been initiated in the
year 2014, no notice of any nature was given to the
Petitioners which was mandatory under Section 14(1) of the
Slums Act.
22. This Court also recorded the statement made by
the Petitioners that the CEO of the SRA was to be retiring on
30 June, 2017 and it is reliably learnt by the Petitioners that
the CEO had assured the Respondent to pass favourable
orders for redevelopment and accordingly hearing was
initially preponed to 19 June, 2017 and now listed on 27 June,
2017. This Court also recorded the statement of the
Petitioners that since the CEO was going to be retiring on 30
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June, 2017, even if the Petitioners appear before the
Authority, they would not be able to place on record the entire
matter, apart from the basic challenge raised in the Petition
that no show cause notice was issued to the owners. This
Court accordingly directed the CEO of the SRA not to proceed
with the inquiry pursuant to the Notification dated 17
November, 2016 which was listed on 27 June, 2017 till the
next date of hearing.
23. It is submitted by the learned Senior Counsel that
the said order dated 23 June, 2017 was passed by this Court
after hearing the learned counsel for the parties including the
Respondent State, the CEO of the SRA and the Respondent
No.4 Society. He submitted that inspite of injunction order
passed by this Court, the CEO preponed the matter and kept
for hearing on 19 June, 2018 and passed the order on 20 June,
2018 ex-parte. He submitted that the CEO has passed
antidated Award to favour the Respondent No.4 Society and
the Developer.
24. It is submitted by the learned Senior Counsel that
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on 3 February, 2010, the Petitioner No.1 had addressed a
letter to the then CEO of SRA opposing the execution of any
agreement between the Respondent No.4-Society with any
Developer for redevelopmen of the writ property under the
Slum Rehabilitation Scheme. The Petitioners also pointed out
that the said property stands in their names. The Petitioners
had requested the CEO not to implement the Slum
Rehabilitation Scheme on the writ land without their consent.
The Petitioners pointed out the corresponding address of the
Petitioners in the said letter for information of the CEO. The
Petitioners informed the CEO that they are going to
implement the said Slum Rehabilitation Scheme in near
future. It is the case of the Petitioners that there was no
response to the said letter dated 3 February, 2010 from the
Respondent.
25. Learned Senior Counsel invited our attention to the
letter dated 12 March, 2010 addressed by the Petitioner No.1
to the Senior Police Inspector, Goregaon (E) Police Station
with a copy of the letter forwarded to the CEO of SRA, stating
that the Respondent No.6 Developer had displayed a board
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stating that they were going to redevelop the slum area with
the Respondent No.4 Society. The Petitioners contended that
nobody can do the work of redevelopment without
permissions of the original owners. Petitioners stated that in
the near future, the Petitioners would go to implement the
Slum Redevelopment Scheme and there is provision for it in
Slum Redevelopment Act. The Petitioners contended that the
parties who have no right to do the work of redevelopment
has displayed a board. The photographs showing the board
was forwarded to the local police station and also to the CEO
of SRA. The Petitioners once again raised objection to any
redevelopment work carried out by any other person on the
writ land.
26. Learned Senior Counsel for the Petitioners invited
our attention to the affidavit filed by the Petitioners in earlier
Writ Petition No. 970 of 2010 clearly stating that the
Petitioners were the owners of the writ property and were
always ready and willing to redevelop the writ property under
the amended D.C. Regulations 33(10) of the DCPR 2034. The
Petitioners also stated that they were trying to get consent of
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all the dwellers residing on the said property. The Petitioner
No.1 undertook before this Court that if the said Scheme is
sanctioned in favour of the Petitioners, they would rehabilitate
all the eligible slum dwellers residing on the suit property
under DC Regulation 33(10) of the DCPR 2034.
27. The Architect of the Petitioners had already
prepared the plans for redevelopment of the said property.
The Petitioners accordingly contended that if it was necessary
to acquire the properties of the Petitioners under Section
14(1) of the Slums Act, the Petitioners being the owners were
ready to redevelop the writ property. A copy of this affidavit
was served on the Respondents in the said Writ Petition. It is
submitted by the learned Senior Counsel that under D.C.
Regulation 33(10) of the DCPR, the first preference for
redevelopment of the property even if declared as slum has to
be given to the owners.
28. Learned Senior Counsel invited out attention to the
order dated 10 February, 2011 passed by the Division Bench
of this Court in Writ Petition No. 970 of 2010 impugning the
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notification dated 15 October, 1977 issued under Section 4(1)
of the Slums Act. This Court recorded the contention of the
Petitioners that in view of the Judgment of the Division Bench
of this Court in case of Anil Gulabdas Shah Vs. State of
Maharashtra (2011) 1 Mh.L.J. 797, the Petitioners as the
land owners should be furnished an opportunity to submit a
scheme for redevelopment which would obviate the necessity
for the acquisition of the land. This Court accordingly directed
the Competent Authority to consider the proposal in light of
those objections including on the basis of the law as laid down
by the Division Bench of this Court in case of Anil Gulabdas
Shah (supra).
29. This Court made it clear that upon a report being
submitted to the State Government by the Authority and in
the event that the State Government decides to acquire the
land, intimation of that decision shall be furnished to the
Petitioners so as to enable the Petitioners to take recourse to
such remedies as are available in law. This Court observed
that at that stage, the Respondent No.2 was only seized with
the proposal submitted by the Respondent No.4 Society for
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the acquisition of the lands and as mandated by the proviso to
sub section (1) of Section 14 on a notice to show cause being
issued to the landowners, it is to open to the landowners to
show cause in writing as to why the land should not be
acquired. The objections of the Petitioners would be
considered at that stage and, the Competent Authority would
need to have due regard to the judgment of the Division
Bench in Anil Gulabdas Shah (supra).
30. Learned Senior Counsel for the Petitioner
submitted that though the said order was passed by this Court
on 10 February, 2011 in the earlier writ petition filed by the
Petitioners, no such notice was served upon the Petitioners as
directed by the Division Bench of this Court. It is submitted
that on 4 January, 2012, the SRA issued notice under Section
37(1)(B) of the MRTP Act in respect of the modification of the
designation of "Recreation Ground" to "Residential Zone" and
informing objections from the Petitioners. It is submitted that
the Petitioners vide Advocate letter dated 31 January, 2012
made it clear that that the Petitioners did not have any
objection to the said change however subject to an
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opportunity being given to the Petitioners for development of
the writ property under slum scheme and not to Respondent
No.6 who had fraudulently procured signatures of slum
dwellers stating that they were the owners of the land.
31. The Petitioners also forwarded various documents
relating to title of the Petitioners in respect of the writ lands.
Learned Counsel placed reliance on the letter dated 3
February, 2012 addressed to the SRA raising objections and
the public notice dated 4 January, 2012 issued under Section
37(1)(B) of the MRTP Act raising similar objections which
were raised earlier. He relied upon the letter dated 3 March,
2012 from the Petitioners to the CEO once again giving their
no objection for the change however subject to an opportunity
of implementing Slum Rehabilitation Scheme to be given to
the Petitioner and not to Respondent No.6. Learned Senior
Counsel for the Petitioner submitted that the Petitioners were
called upon to the office of the Chief Executive Officer in
respect of change in reservation. The Petitioner appeared on 8
May, 2012 for such purpose.
32. Learned Senior Counsel for the Petitioners invited
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our attention to the public notice issued by the SRA on 21
November, 2013 under Section 14(1) of the Slum Act to the
Petitioners and Respondent No.4 Society in respect of land
bearing C.T.S.No. 31 admeasuring 3911.6 sq.mtrs. He
submitted that on 2 December, 2014, the CEO of the SRA
submitted a report to the Chief Secretary, Housing
Department. He submitted that in the said report, the CEO
deliberately did not refer to the injunction order passed by
this Court and also by the City Civil Court in favour of the
Petitioners in respect of the writ lands. He submitted that in
para 4 of the said report, admittedly the names of the
Petitioners were referred to as the owners of the writ
property. No notice or hearing was granted by the CEO or by
the Chief Secretary. He invited out attention to the prayers in
the Notice of Motion filed by the Petitioners before the City
Civil Court in S.C. Suit No. 127 of 2016 for injunction and the
ad-interim order passed by the City Civil Court in favour of
the Petitioners and against the Defendants therein.
33. Learned Senior Counsel invited our attention to
letter dated 28 November, 2016 from the Advocates of the
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Petitioners to the Principal Secretary, Housing Department,
CEO of the SRA, Additional Collector, Deputy Collector and
the Legal Adviser of SRA informing about the orders passed
by this Court and the City Civil Court granting injunction. By
the said notice also, the Petitioners had requested all of them
not to accept the proposal submitted by Respondent Nos. 4
and 6 and any other person in respect of the writ property
without the express consent of the Petitioners.
34. Learned Senior Counsel invited our attention to the
notification dated 31 August, 2015 issued by the SRA under
Section 3(c)(1) of the Slums Act declaring the writ property in
addition to other lands "slum area". He invited our attention
to the notice dated 2nd December, 2014 from the SRA to the
Chief Secretary informing that the Petitioners were the
owners of the writ property and had raised objection in
respect of any redevelopment by the 3 rd party. He relied upon
Section 3(B)(5) of the Slums Act and submitted the area has to
be first declared as Slum Rehabilitation Area for permitting
any scheme on the said land. He relied upon Section 2(h-b) of
the Slums Act defining the Slum Rehabilitation Area.
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35. Learned Senior Counsel submitted that notice was
required to be issued under Section 3(c) of the Slums Act to
the Petitioners. He relied upon Section 12(A)(B) of the Slums
Act duly amended. He relied upon Section 17 of the Slums
Act and submitted that notice under Section 17 for
determination of compensation was issued directly on 20
March, 2017. He submitted that on 11 April, 2017, the
Petitioners had already issued a reply to the said notice to the
CEO of the SRA again expressing their readiness and
willingness to the redevelopment of the said property and
raising various objections to the said notice under Section 17
of the Slums Act.
36. It is submitted that the Petitioners came to know
about the notice under Section 14(1) only when the notice
under Section 17 for determination of compensation was
issued. Learned Senior Counsel invited our attention to the
notice dated 15 June, 2017 and submitted that by the said
notice purported to have been issued, the CEO preponed the
date of hearing from 27 June, 2017 to 19 June, 2017. The CEO
of the SRA preponed the hearing slated for 27 June, 2017 to
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19 June, 2017. The Petitioners were not given any notice for
preponement of the date of hearing. He invited our attention
to the Roznama of the hearing alleged to have been held on 19
June, 2017 recording that the Petitioners had remained absent
and accordingly meeting was adjourned to 27 June, 2017.
37. It is submitted that in the said Roznama, though
the meeting was adjourned to 27 June, 2017, it was stated
that the said meeting was preponed and since the Petitioners
were present on 11 April, 2017, 25 April, 2017, 26 April,
2017, 5 June, 2017 and 13 June, 2017, fresh notice was not
issued to the Petitioners. It was stated in the said Roznama
that the Petitioner was trying to postpone the hearing by
approaching the High Court in Writ Petition No. 1121 of 2017,
however, the High Court had not issued any stay order. The
CEO closed the hearing on 19 June, 2017 and passed an
Award on 20 June, 2017. He submitted that this action on the
part of the CEO in pre-poning the date of the hearing is in
gross violation of the orders passed by this Court. He
submitted that the CEO has favoured the Respondent No.4
and the Developer by anti-dating the order and the date of
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hearing.
38. Learned Senior Counsel for the Petitioner invited
our attention to some of the averments made in the affidavit
dated 20 June, 2017 filed by the Petitioners pointing out that
the Petitioners along with the family were out station from 16
June, 2017 to 19 June, 2017. He submitted that though this
Court had directed the CEO of the SRA to issue notice under
Section 14(1) of the Slums Act to the Petitioners, the order
passed by this Court has not been complied with by the CEO
by issuing notice. He submitted that the order passed by the
CEO disclosed total non application of mind. He submits that
in the affidavit filed by the State Government, it is not
mentioned that the personal notice to the Petitioner was
issued. It is submitted that the impugned award thus passed
by the CEO deserves to be quashed and set aside.
39. Mr. Cherag Balsara, learned counsel for
Respondent No.4 Society, on the other hand, submitted
synopsis, written arguments and tendered a compilation of
judgments for consideration of this Court and made the
following submissions Writ Petition No.2338 of 2017
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40. It is submitted that on 15 October, 1977, writ
property along with the adjoining areas have been declared
as Slum by issuing of Notification under Section 4 of the
Slum Act. On 26 August, 2015, the writ property
admeasuring 12511 sq. mtrs. has been declared as Slum
under Section 3(c) (1) of the Slum Act. Respondent No.4 is a
Slum Society comprising 719 Slum Dwellers residing on the
CTS No. 28,29 (1 to 3), 30 and 32 at Village Dindoshi which
includes the writ property. On 19 September, 1985, the
Petitioners had purchased the suit property vide registered
agreement of sale. Accordingly, name of the Petitionerd was
entered into the record of writ property.
41. It is submitted that in the year 2006, the
Respondent No.4 Society came to be formed by the Slum
Dwellers who were residing on the writ property in
unhygienic condition and without basic amenities. The land
owner/s did not show any intention of implementing the said
scheme over writ property. It is submitted that on 6 March,
2007, Respondent No.4 Society made an application under
Section 14 of the Slum Act with the Controller of Slum. The
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said application was forwarded to the Slum Rehabilitation
Authority on 4 April, 2013 for further inquiry.
42. It is submitted by the learned counsel for
Respondent No.4 Society that Respondent No. 4 Society
appointed Respondent No.6 Atlantic Construction Company
as their Developer. The Developer filed a S.C. Suit No.
1124/2007 in the City Civil Court , Dindoshi for seeking
injunction against the Respondent No.4 Society from
transferring and assigning the Development rights. He relied
upon the consent terms dated 21 January, 2009 in the said suit
between the developer and the society and also the decree
dated 6 April, 2009 obtained in the said S.C. Suit No. 1124 of
2007.
43. It is submitted that the land owners thereafter on
3 February, 2014 made representation to the Respondent
No.2 CEO- Chief Executive Officer, SRA intimating their
intention to implement the said scheme on the subject
property. He invited our attention to the letter dated 12
March, 2010 addressed by the Petitioners to the Senior
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Inspector of Police, Goregaon Police Station, stating that the
Respondent No.4 Society has put up a board of Respondent
No.6 for implementing the Slum Scheme. However, the
Petitioner have no intention to implement the said slum
scheme.
44. It is submitted that Respondent No.3 SRA pasted a
public notice on the subject property for the proposed
acquisition of the subject property on 20 March, 2010. The
Petitioners filed his Written Objection on 3 April, 2010 to the
process of survey for acquisition to the Respondent No.3 and
the Senior Inspector, Goregaon Police Station. It is submitted
that Respondent No.2 issued public notice in daily
newspapers - Free Press Journal and Navakal to show cause
as to why the subject property shall not be acquired for the
public purpose within 15 days from the date of issuance of the
public notice. Respondent No.2 issued another notice under
Section 14(1) of the Slum Act on 24 December, 2013 thereby
fixing the schedule of hearing in the office of the Respondent
No.2 in respect of the writ property.
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45. Learned counsel for Respondent No. 4 Society also
relied upon the show cause notice under Section 14(1) of the
Slum Act dated 22 January, 2014 and submitted that the said
notice was pasted on the subject property. He submitted that
on 3 February, 2014, 10 March, 2014 and 11 April, 2014
Petitioners failed to appear for hearing held before
Respondent No.2 CEO in respect of acquisition of the
subject property under section 14(1) of the Slum Act. The
Petitioners had chosen to remain absent despite notice. The
Petitioners never put forth the scheme for implementing slum
scheme on the subject property.
46. The learned counsel placed reliance on the order
passed by this Court in Writ Petition No. 1152 of 2002 and
submitted that Slum Rehabilitation scheme can be
implemented even on the open spaces which are reserved for
gardens, parks, playgrounds, recreational spaces, maidans, no
development zones, pavements, roads and carriageways with
the permission of the Court. The Petitioner, however, neither
submitted any proposal with the Slum Rehabilitation Authority
nor filed any petition to seek permission for implementing
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slum scheme on the subject property.
47. It is submitted by the learned counsel that only
after receiving a report recommendation and representation
from the Respondent No.2, CEO SRA, the State Government
published a Notification on 17 November, 2016 and acquired
the subject property by issuing a Notification under Section
14(1) of the Slums Act. The property, accordingly stood
vested absolutely on the State Government free from all
encumbrances.
48. Learned counsel placed reliance on Notice dated
20 March, 2017 issued by Respondent No.2 CEO to the
Petitioners and other interested persons for determining the
compensation for acquisition. On 11 April, 2017, Petitioners
appeared before Respondent No.2 and objected to the entire
process of acquisition. The Petitioners also intimated their
intention to implement the slum scheme. It is submitted that
several hearings were held in the office of Respondent No.2
for fixing the compensation.
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49. It is submitted that on 20 June, 2017, Respondent
No.2 rightly passed an Award under the provisions of the
Slum Act for determining the compensation. He relied upon
the order dated 24th June, 2017 passed by this Court stating
about holding inquiry by disbursement of the compensation
pursuant to the letter dated 17 June, 2016. It is submitted
that the inquiry was already pending at that relevant time for
determining the compensation. The Petitioner could have not
raised any objection to the validity of Section 14(1) of the
Slum Act.
50. Learned counsel placed reliance on the Roznama of
the proceedings and submitted that the officer who passed the
order, was different. Only issue of compensation was pending.
Mr. Nirmal Deshmukh had already retired. This Court while
granting the impugned stay by ad-interim order vesting of
property in Government, the compensation was ultimately
decided by Mr. Vishwas Patil, CEO, SRA on 20 June, 2017. It
is submitted by the learned counsel that public notice dated
20 March, 2010 was pasted at the subject property by the
SRA for the proposed acquisition. The Petitioner submitted
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their written objection on 3 April, 2010 to the process of
survey of the acquisition to Respondent No.3.
51. The Petitioners had challenged the said process
by filing Writ Petition No. 970 of 2010 and for the first time
pointed out that they were always ready and willing to
implement the scheme. However, the Petitioners never
submitted any proposal for implementation of the said
scheme. The writ petition came to be disposed of on 10
February, 2011 by directing the landowner to show cause in
writing as to why the land should not be acquired.
52. It is submitted that only thereafter the Petitioner
submitted five representations to the SRA, however,
miserably failed to put any bonafide efforts by submitting a
proposal for implementation of the scheme. The Petitioners
have never genuinely intended to implement the said scheme,
though several opportunities were available to the Petitioners.
Since notice had already been pasted on the subject property,
the Petitioners cannot be allowed to urge that no notice was
served upon the Petitioners. The pasting of notice at site is
sufficient mode of service under Section 36 of the Slum Act.
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He submitted that in any event there is no statutory provision
under the Slum Act, which provides that, by want of notice,
the acquisition proceeding can be vitiated.
53. It is submitted that the other land owners who are
also the interested parties were already present on the basis
of the said public notice published before the CEO of SRA on
various dates. If the Petitioners were not diligent in attending
the hearing and to submit a scheme in spite of sufficient
opportunity, entire acquisition proceedings cannot be vitiated
on the ground of want of service. The Slum Rehabilitation
Scheme is approved for benefit of larger masses.
54. It is submitted by the learned counsel that the
principles of natural justice are not to be put in a straight
jacket formula. The scope of hearing to satisfy the principles
of natural justice would vary depending on the legislative
provisions and object of the inquiry In support of the
submissions, he placed reliance on case of Sara Harry
D'Mello Vs The State of Maharashtra and Ors. [2013(4)
Mh. L.J. 348] (Page 211 and 242 of Compilation of
Judgment and notification). The learned counsel also
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placed reliance on the judgment of this Court in case of
Deena Pramod Baldota Vs State of Maharashtra and
Ors. passed in Wrti Petition (L) No.19626 of 2022 (page
24 to 55 of Compilation of Judgment and notification)
and made an attempt to distinguish the judgment of this
Court in case of Indian Cork Mills Pvt. Ltd. Vs State of
Maharashtra and Ors. [(2018) 4 Bom CR 618]. He
submitted that the decision of Indian Cork Mills Pvt. Ltd.
(supra.) does not lay down any proposition that for want of
notice to owner, whatsoever may be the fact situation,
sequitur would be quashing of the acquisition proceedings.
55. The learned counsel for Respondent No.4 placed
reliance on the judgment of this Court in case of A.H. Wadia
Trust and others Vs. The State of Maharashtra and Ors.
passed in Writ Petition No. 1347 of 2019 (page 146-168
of Compilation of Judgment and Notification ) in support
of the submissions that, there is no straight jacket formula
applicable while following the principles of natural justice.
He also relied upon the the judgment of the Supreme Court in
case of Dharampal Satyapal Ltd.Vs Deputy Commissioner
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of Central Excise, Gauhati & Ors. [(2015) 8 SCC 519]
(page 263-287 of Compilation of Judgment and
Notification). In support of the submission that there is no
violation of principles of natural justice and in any event, the
Petitioner was responsible for not appearing before the Chief
Executive Officer of SRA for hearing.
56. It is submitted by the learned counsel that the SRD
Scheme being implemented through out the city in the year
1997 upon issuance of Notification under the provisions of
Section 47 of Slum Act. The Petitioners could have
implemented the SRD Scheme. Municipal Corporation of
Greater Bombay was the Planning Authority for implementing
the SRD Scheme. The SRA had issued Notification dated 16
October, 1997 for conversion of Old Approved SRD Scheme
to New SRA Scheme under the provisions of Rule 8.6 of
Amended Draft DCR 33(10).
57. It is submitted that since the Petitioners did not
implement the Slum Scheme for more than 30 years, the slum
dwellers lost confidence in the Petitioners on account of
inability/ failure to implement the Slum Scheme. The
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representations made by the Petitioners at least seven times,
were without submission of the Scheme for Redevelopment.
Learned counsel for the Society relied upon the judgment of
this Court in case of F.E. Dinshaw Charities and Ors. Vs.
State of Maharashtra and Ors. passed in Writ Petition
No. 1171 of 2019 (page 1 to 23 of the Compilation of
Judgment and Notification) and also relied upon the
judgment of this Court in case of Marathwada Society
Chawl Committee & Ors. Vs. State of Maharashtra &
Ors. passed in Writ Petition No. 1036 of 2017 decided on
26 Septemer, 2017 [page 114 to 118 of Compilation of
Judgment and Notification].
58. It is submitted by the learned counsel for the
Society that this Slum Scheme is already accepted on 24
June, 2020. Several NOCs in favour of Respondent No.4
Society have been processed. However, at the last quarter of
2020, the SRA stopped processing the Scheme of
Respondent No.4 and Respondent No.6 upon the complaint
made by the adjoining owner. It is submitted that in view of
this situation, this Court may not interfere by exercising its
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discretionary power with the order of acquisition passed by
the Slum Rehabilitation Authority and sanction of the scheme.
59. It is submitted by the learned counsel for the
Developer that the provisions of Section 14 of the Slum Act
are independent under which the lands are being acquired by
the State subject to the hearing of the objection pursuant a
show cause, and a decision has to be taken thereafter. He
submitted that the Petition cannot be allowed to stall the
redevelopment after the property is entirely acquired by the
State Government under Section 14 of the Slum Act. At this
stage, this Court cannot interfere with the sanctioned slum
scheme and the acquisition of the writ property as the
objection of enacting the Slum Act would be frustrated.
60. It is submitted by the learned counsel that the
provisions of Section 14 of the Slum Act is an exception. He
relied upon the judgment of the Supreme Court in case of
Murlidhar Teckchand Gandhi & Ors. Vs. State of
Maharashtra and Ors. passed in Civil Appeal No. 11077
of 2017.
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Submissions of Mr. Damle, learned Senior Counsel for
the Petitioner in Writ Petition No. 2338 in rejoinder
61. Learned Senior Counsel for the Petitioners in
Rejoinder, invited our attention to the order passed by this
Court dated 10 February, 2011 passed by the Division Bench
of this Court in Writ Petition No. 970 of 2010 in case of
Yogesh Chandulal Mehta and Anr. annexed at Exhibit 'M'
(Page 111-128 of the Writ Petition) and submitted that the
said order clearly observed that the Tahasildar in the Affidavit
in Reply filed in the said Writ Petition had clearly stated that
the Petitioners would be given notice and the objections of the
Petitioners with regard to the acquisition of the lands together
with the report of the Deputy Collector would be forwarded
to the State Government as required under Section 14 before
notifying the land for acquisition.
62. It is submitted that no such averment was made in
the said writ petition by the Tahasildar and no notice was
served upon the Petitioners. He submitted that though by the
said order dated 10 February, 2011, the Authority was
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directed to consider the objection, the Competent Authority
did not give opportunity to the Petitioners and did not
consider the proposal of scheme submitted by the Petitioners.
63. Learned counsel for the Petitioners firstly invited
our attention to the averments made by Ajinkya Padwal,
working as Deputy Collector-WS for SRA on behalf of
Respondent No.2 notarized on 23 June, 2017 and more
particularly paragraph Nos.13, 17 and 18. In paragraphs 13,
17 and 18, it is contended by the Respondent No.2 that the
public notice under Section 14(1) of Slum Act was also
published in the newspaper i.e. Free Press Journal on 21
November, 2013 and Navakal dated 21 November, 2023. He
submitted that the said notice published in the newspaper was
contrary to the order passed by the Division Bench of this
Court on 10 February, 2011.
64. Learned Senior Counsel for the Petitioners
vehemently urged that the Petitioners had placed reliance on
several representations made by the Petitioners and admitted
by the Respondents that the Petitioners had shown readiness
and willingness to redevelop the writ property. The
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Respondent-Authority, however, has totally overlooked the
initial aspects and the documents produced by the Petitioners.
65. Insofar as the submission regarding malice and
fraud, canvassed by Mr. Singh, learned counsel in Writ
Petition No. 2283 of 2017 is concerned, Mr. Damle, learned
Senior Counsel in this writ petition reiterated the said
arguments. He submitted that under Section 14 of the Slum
Act, the Authority has to call upon the owner before
publishing of notice to show cause as to why the land in
question shall not be acquired with reasons. The State
Government has to take its decision after application of mind
which in this case has not been applied.
Submissions of the Learned Additional Government
Pleader for State
66. Mr. Patki, learned Additional Government Pleader
for the State in both the matters tenders a Compilation of
documents and also Synopsis for consideration of this Court.
He supported the impugned order passed by the CEO of SRA
and submitted that no interference is warranted with the
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impugned order passed by the CEO of SRA.
Submission on behalf of Mr. Desai, learned Counsel for
the Respondents- SRA - Developer Authority
67. Learned counsel for the Developer adopted the
submissions made by Learned Counsel Mr. Balsara, learned
counsel for the Society and tendered the proposal approved
by the Slum Rehabilitation Authority on 22nd June, 2020. He
also relied upon the judgment of this Court in case
Marathwada Society Chawl Committee and Ors. Vs.
State of Maharashtra and Ors. [2017 SCC Online B
8547), more particularly paragraph Nos. 11,18, 20 and
submitted that any interference with the Scheme would cause
serious prejudice not only to the members of the Respondent
No.4 Society, but also to the developer.
REASONS AND CONCLUSIONS IN WRIT PETITION
No.2338 OF 2017
68 . We shall first decide the issue raised by the
Petitioners, as to whether the order passed by the Respondent
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No.2, the then Chief Executive Officer, Shri Vishwas Patil is
anti-dated and the order purported to have been passed on
20 June, 2017 by preponing the hearing fixed on 27 June,
2017 to 19 June, 2017 has committed violation of principles of
natural justice and acted with malafide intention or not?
69. It is not in dispute that the Petitioners had filed
this Writ Petition on 18 April, 2017, inter alia, praying for a
Writ of Certiorari for quashing and setting aside the
impugned notification dated 17 November, 2016 under
Section 14(1) of the Slum Act. Papers and proceedings along
with notice were served on the office of Respondent No.2 by
the Petitioners. On 21 April, 2017, this Court issued notice
on the Respondents and on the learned Additional
Government Pleader for Respondent Nos. 1 and 3. The matter
was adjourned to 23 June, 2017.
70. On 23 June, 2017, this Court noticed the order
dated 10 February, 2011 passed by this Court in Writ Petition
No. 970 of 2010 filed by the Petitioners challenging the
Notification dated 15 October, 1997 under Section 14(1) of
the Slum Act. This Court has held as per the provision of
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Sectin 14(1) of the Slum Act, it is mandatory to give a notice
of hearing before issuing Notification under Section 14(1) of
the Slum Act, however, in the present case, the Notification of
acquisition is issued on 17 November, 2016 without any
Notice to the Petitioner being the owner of the proeprty and
hence the said notification is nullity and without following the
due process of law. It is open to land owner to claim as to
why the land should not be acquired. The objections of the
Petitioners would be considered at that stage and the
Competent Authority would have to held due regard to the
judgment of the Division Bench in the case of Anil Gulabdas
Shah Vs. State of Maharashtra [2011(1) M.LJ.797].
71. This Court directed the Competent Authority to
consider the proposal in the light of those objections including
on the basis of the law as laid down by the Division Bench of
this Court in case of Anil Shah (Supra). This Court further
held that upon a report being submitted to the State
Government by the competent authority, and in the event that
the State Government decided to acquire the land, intimation
of that decision shall be furnished to the Petitioner so as to
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enable the Petitioner to take recourse to such remedies as
are available in law. It is clear that though Respondent
No.2 SRA was served with the papers and proceedings for
appearing in Court on 21 April, 2017, Respondent No. 2 did
not bother to appear.
72. On 23 June, 2017, this Court noticed that the
Chief Executive Officer of the Respondent No.2-SRA was
retiring on 30 June, 2017. This Court noticed that the
Petitioners had reliably learnt that the said Chief Executive
Officer of SRA had assured to pass favourable orders for
development and, therefore, the hearing was initially pre-
poned to 19 June, 2017 instead of 27 June, 2017. Respondent
No.2 was represented by an Advocate before this Court on 23
June, 2017.
73. This Court recorded the apprehension of the
Petitioners that since the Chief Executive Officer would be
retiring on 30 June, 2017, even if Petitioners appear before
the Authority , they not be able to place on record the entire
matter, apart from the basic challenge raised in the petition
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that no show cause notice was issued to the owner. This
Court accordingly, directed Respondent No.2 not to proceed
with the inquiry as per the Notification dated 17 December,
2016 which was listed on 27 June, 2017 till next date of
hearing and directed the office to place the matter after two
weeks.
74. It is the case of the Petitioners that the said order
was duly communicated to Respondent No.2 by the
Petitioners. The Petitioners had requested Respondent No.2
to adjourn the proceeding initiated under Section 17 of the
Slum Act beyond 23 June, 2017, on which date, this Writ
Petition was kept for hearing before this Court. However,
despite the same, Respondent No.2 kept the matter only on
13 June, 2017. We have perused the Roznama placed by the
Petitioners. On 13 June, 2017, Advocate for the Petitioners
requested Respondent No.2 that the Writ Petition was kept for
admission and interim relief on 23 June, 2017. Respondent
No.2 accordingly kept the matter on 23 June, 2017 as is
clearly indicated in the Roznama dated 13 June, 2017.
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75. It is placed on record by the Petitioners that in view
of the proceedings already post-poned to 27 June, 2017
initially and that the Petitioners along with their family
members were out of station from 16 June, 2017 to 19 June,
2017, the Petitioners were neither served with any notice nor
they could remain present on 19 June, 2017. It is the case of
the Petitioners that on 19 June, 2017, though the matter was
adjourned to 27 June, 2017 at 11.00 a.m., the Advocate for
Respondent No.4 made request for hearing the matter on the
same day and accordingly when the Petitioners were absent,
Respondent No.2 has alleged to have heard the matter on 19
June, 2017 and close for orders. The Roznama dated 19 June,
2017 would indicate the version of the Petitioners.
76. We have perused the Affidavit in Reply filed by
Respondent No.2 on 23 June, 2017. The said Affidavit does
not indicate that on 20 June, 2017, Respondent No.2 had
already passed an order by pre-poning the date of hearing
though this Court by order dated 23 June, 2017, had directed
the SRA Authority not to proceed with the inquiry pursuant to
the Notification dated 17 November, 2016 and listed the
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matter to 27 June, 2017.
77. A perusal of the record clearly indicates that
though by order dated 23 June, 2017, after hearing the
learned counsel for Respondent No.2, the matter was
adjourned to 27 June, 2017 directing the SRA Authority not to
proceed with the enquiry pursuant to the Notification dated
17th November, 2016 till next date of hearing the Respondent
No.2 purported to have preponed the date of hearing and
circumvented the order passed by this Court and with a view
to favour the Respondent No.4 Society and Respondent No.6
Developer.
78. We have perused the Affidavit in Reply filed by
Respondent No.4 on 27 April, 2018. Even in the said Affidavit,
Respondent No.4 has not explained as to why an application
was made for pre-poning the hearing before Respndent No.2
and how the Respondent No.2 SRA could have preponed the
hearing and circumvented the stay granted by this Court on
27 June, 2017.
79. The Learned Additional Government Pleader also
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did not address this Court on the serious allegations made by
the Petitioners on the aspect of the order passed by
Respondent No.2 thereby preponing the hearing and
circumventing the order passed by this Court on 23 June,
2017.
80. Mr. Balsara, learned counsel for the Society also
could not explain as to how the application was made before
the Respondent No.2 by his client for pre-ponment of the
hearing when the matter was already adjourned by this Court.
81. The Writ Petition appeared from time to time
thereafter on board. Respondent No.2, however, did not
explain before this Court as to why he pre-poned the
hearing after order dated 23 June, 2017 passed by this Court,
granting interim stay against Respondent No.2. If Respondent
No.2 would have passed an order on 20 June, 2017 by pre-
poning the date to 19 June, 2017, the Learned Advocate for
Respondent No. 2 SRA ought to have brought this evidence on
record before this Court on 23 June, 2017. This fact also
clearly indicates that the order dated 20 June, 2017 was anti-
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dated after 27 June, 2017 so as to favour the Respondent No.4
Society and Respondent No.6 Developer.
82. We shall now deal with the issue as to whether the
Respondent No.2 SRA has complied with the order dated 10
February, 2011 passed by this Court. A perusal of the record
indicates that when the Petitioners had filed Writ Petition NO.
970/2010 in this Court, inter alia, challenging the public
notice dated 15 October, 10787 issued by the Respondent
No.2, proposing to acquire the writ property, the Petitioners
had filed an affidavit pointing out that they were ready and
willing to implement the slum scheme on the writ property
and they were eligible to implement the slum development
scheme under Section 33(1) of the Amended Development
Control and Permission Regulation 2004.
83. Though this Court had directed the Respondents to
consider the proposal in light of those objections raised by the
Petitioners and in accordance with the principles laid down
by this Court in case of Anil Gulabdas Shah (supra.), the
Respondent No.2 Authority did not give opportunity to the
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Petitioners to raise their objections, nor considered the
objections raised in Writ Petition No. 970 of 2010 and also did
not consider the principles laid down in the case of Anil
Gulabdas Shah (supra).
84. It is an admitted position that the Petitioners made
representations to Respondent No.2 showing readiness and
willingness to submit a scheme and to develop the property
under the provisions of Development Control Regulations,
Respondent No.2 Authority did not consider those proposals
made by the Petitioners and passed an erroneous order
contrary to the order passed by this Court on 30 March, 2010
and the principles laid down by this Court in case of Anil
Gulabdas Shah (supra).
85. The Petitioners also pointed out the ad-interim
relief granted by the City Civil Court on 10 November, 2016
in the Notice of Motion filed by the Petitioners restraining the
Defendants therein from implementing the Slum
Rehabilitation Scheme on the writ property, without express
consent of the Petitioners, the Respondent No.2 did not
consider the said order also while accepting the proposal
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submitted by the Respondent No.4 Society. It was common
ground that the Respondent No.2 Chief Executive Officer was
going to retire on 30 June, 2017. This apprehension was
brought to the notice of this Court by the Petitioners that it
will not be possible for the Petitioners to represent before the
date of retirement of Respondent No.2 The Respondent No.2
Chief Executive Officer had thus ex-facie anti-dated the order.
86. Respondent No.2 did not consider the fact that the
Petitioners had tendered an undertaking before this Court
that they would develop the writ property. The architects of
the Petitioners had already prepared the plans for
redevelopment of the writ property. The Petitioners were
issued the notice under Section 17 of the Slum Act for
determination of compensation directly on 20 March, 2017.
Event at that stage, the Petitioners expressed their readiness
and willingness to develop the writ property and raised
various objections to the determination of compensation.
87. The Division Bench of this Court in the case of
Indian Cork Mills Pvt. Ltd. Vs. State of Maharashtra and
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Ors. [(2018) 4 Bom CR 618] has construed Section 14(1)
of the Slum Act and has held that under proviso to Section
14(1) , before publishing such notice, the State Government,
or as the case may be the Competent Authority has to 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 reasons
thereof, to the competent authority within the period specified
in the notice; and the competent authority shall, with all
reasonable dispatch, forward any objections which were
raised by the Petitioners to the acquisition and considering
the said exercise, may pass appropriate order as it deems fit.
88. This Court held that under Section 3B(4) (c) and (e)
r/w. Section 13(1) of the Slum Act, the owner of the property
has vested right to have a first choice to undertake a Slum
Rehabilitation Scheme and only on failure to do so, the State
Government can proceed to acquire the land and not
otherwise. Any such violation by the Slum Authority vitiates
the acquisition on that ground as it suffers from lack of
authority and power to acquire. This Court in the said
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judgment adverted to the earlier judgment of this Court in the
case of Anil Gulabdas Shah (supra.) and was pleased to
quash and set aside the order passed by the SRA under
Section 14(1) of the Slum Act.
89. In our view the principles laid down by the Division
Bench of this Court in the case of Indian Cork Mills Pvt.
Ltd. (Supra.) apply to the facts of this case. In this case
though the Petitioners had made various representations
showing the readiness and willingness to carry out
redevelopment of the writ property admittedly, Respondent
No.2 overlooked the preferential rights of the Petitioners
owner to undertake redevelopment of the writ property under
Section 3B(4) (c) and (e) r/w. 13 (1) of the Slum Act and has
sanctioned the proposal submitted by Respondent No.4
Society. The impugned order is contrary to the principles laid
down by the Division Bench of this Court in case of Indian
Cork Mills Pvt. Ltd. (Supra).
90. The Division Bench of this Court in case of Anil
Gulabdas Shah (supra). has held that under Section 13 (1)
of the Slum Act the SRA is obliged to offer the suit land to the
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first to the petitioner or to the occupants thereon to come
forward for redevelopment of the same and only on their
failure, the land could be handed over to a third party. The
statutory scheme cannot be given go-by. Though this Court
had specifically directed Respondent No.2 to consider the
principles of law in the case of Anil Gulabdas Shah
(supra)., by order dated 10 February, 2011, the Respondent
No.2 decided contrary to the principles of law laid down by
this Court in case of Anil Gulabdas Shah (supra)., which
clearly apply to the facts of this case.
91. Insofar as the judgment of this Court in case of
Deena Baldota Vs. State of Maharashtra (supra) relied
upon by the learned counsel for Respondent No.4 Society is
concerned, this Court had recorded a finding that there was
bonafide intention on the part of the owner to redevelop the
subject property. Sufficient opportunities were granted to the
owner to submit a proposal for redevelopment. This Court
was satisfied that the pre-requisite of Section 14 of the Slum
Act was complied by the Authorities. The said judgment of
this Court in case of Deena Baldota Vs. State of
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Maharashtra (supra) is clearly distinguishable on the facts.
In this case none of the pre-requisite of Section 14 are
complied with by the Respondent No.2.
92. Insofar as judgment of this Court in the case of
A.H. Wadia Trust & Ors. Vs. State of Maharashtra
(supra) relied upon by the learned counsel for Respondent
No.4 of the Society is concerned, this Court had recorded a
finding that the Petitioners in that case had made it clear that
Petitioners owners in that case could not have redeveloped
the property itself since the said issue was pending in the
originating summons filed by owners. In the facts of that
case, this Court did not interfere with the order passed by the
SRA under Section 14(1) of the Slum Act. The said judgment
is clearly distinguishable on the facts.
93. Insofar as the judgment of the Learned Single
Judge of this Court in case of Jagnnath Sonawane and Ors.
Vs. Slum Rehabilitation Authority & Ors. (supra). relied
upon by the Learned counsel for the Respondent no.2 is
concerned, this Court held that Section 3C(1) of the Slum Act
does not in terms either grant or exclude an opportunity of
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hearing. The said judgment did not deal with the issue
whether order under Section 14(1) may be passed by the SRA
without complying with the principles of natural justice or not
without giving an opportunity to the owners to exercise
preference rights to redevelop the land under acquisition.
94. Insofar as the judgment of this Court in case of
Nusli N. Wadia Vs. State of Maharashtra (supra). is
concerned, this Court recorded a finding that the impugned
award was declared after following the principles of the
natural justice. The Award had been challenged only on the
ground of inadequacy of compensation. This Court
accordingly held that the Petitioners aggrieved by the
quantum of compensation granted under the Award would
have to resort to the remedy of filing an Appeal under Section
17(6) of the Slum Act. In our view the said judgment would
not apply to the facts of this case.
95. So far as the judgment of this Court in case of this
Court in case of F.F. Dinshaw Charities & Ors. (supra) is
concerned, this Court has recorded a finding that the Chief
Executive Officer of SRA had complied with the principles of
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natural justice under Section 14(1) of the Slum Act. In our
view, the said judgment is clearly distinguishable on the facts
and thus would not advance the case of the Respondents.
96. Insofar as the submission of Mr. Balsara, learned
counsel for the Respondent No.4 Society that the slum
scheme was already submitted on 24 th June, 2020 and various
NOCs have already been granted in favour of Respondent
No.4 and thus at this stage shall not interfere with the order
passed by the SRA under Section 14(1) of the Slum Act is
concerned, in our view, since the order passed by Respondent
No.2 was ex-facie anti-dated, in violation of the principles of
natural justice, in violation of the stay order granted by this
Court and also against the principles laid down by this Court
in case of Anil Gulabdas Shah (supra.) and in case of
Indian Cork Mills Pvt. Ltd. (Supra.), the subsequent steps
taken by Respondent No.2 or by Respondent Nos.4 and 6
would be of no consequence.
97. The subsequent steps taken by Respondent Nos. 2,
4 and 6 in furtherance of this illegal order passed by
respondent No.2 would not legalize the illegal order passed
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by Respondent No.2. In our view, the Petitioners have thus
made out a case for quashing and setting aside the impugned
Award dated 20 June, 2017 passed by Respondent No.2 in
respect of the writ property, for quashing and setting aside
the Notification dated 17 December, 2020 and impugned
Notice dated 20 March,2017 issued under Section 14(1) of the
Maharashtra Slum Areas (Improvement, Clearance, Re-
development) Act, 1971, to the extent of the acquisition of the
Petitioner on land bearing CTS No. 31(Part) admeasuring
3705.2 square meters of Village Dindoshi, Taluka Borivali,
Mumbai herein deserves to be quashed and set aside.
98. We, accordingly pass the following order:
(i) Writ Petition No. 2338 of 2017 is allowed in terms
of prayer clauses (b) (c), (d) and (d-i).
(ii) The application filed by Respondent No.4 Society
before Respondent No.3- Chief Executive Officer,
Slum Rehabilitation Authority for acquisition of the
writ property is dismissed.
(iii) Rule is made absolute in the aforesaid terms.
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(iv) There shall be no order as to costs.
(M.M. SATHAYE. J.) ( R. D. DHANUKA, J. )
99. Mr. Balsara, learned counsel for the Respondent
No.4 - Society applies for stay of the operation of the order
passed by this Court today, which is vehemently opposed by
the learned counsel for the Petitioner. Application for stay is
rejected.
(M.M. SATHAYE. J.) ( R. D. DHANUKA, J. )
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