Bombay High Court
Subhash Velji Chawda vs The State Of Maharashtra And 6 Ors on 1 December, 2023
Author: B. P. Colabawalla
Bench: B. P. Colabawalla, M. M. Sathaye
2023:BHC-OS:14072-DB
WPL.5467.22.DOCX
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION(L) NO.5467 OF 2022
Subhash V.Chawda & Anr ..Petitioners
Mumbai
Versus
The State of Maharashtra & Ors ..Respondents
ANJALI Digitally signed by
TUSHAR
ANJALI TUSHAR
ASWALE
Date: 2023.12.01
WITH
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WRIT PETITION NO.418 OF 2019
Jai Ganesh Co-operative Housing
Society
Vile Parle (E), Mumbai & Others ..Petitioners
Versus
The District Collector, Mumbai
& Others ..Respondents
WITH
WRIT PETITION NO.368 OF 2020
Sanjay Vasudev Dhage ..Petitioner
Vile Parle (E), Mumbai
Versus
The District Collector, Mumbai
& Others ..Respondents
WITH
WRIT PETITION NO.4721 OF 2022
Mahanagar Telephone Nigam Ltd ..Petitioner
Versus
The State of Maharashtra & Ors ..Respondents
Mr.Vishal Kanade, with Vincent D'silva, Advocates for
the Petitioner in WPL.5467/22.
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Mr. Manish V. Khadakban i/b Anilkumar Patil,
Advocates for the Petitioner in WP.418/19 & WP.368/20
Ms.Dikshita Gupte with Prasanna Gupte, Advocates for
the Petitioner in WP.4721/22.
Mr.Sunit A. Mane, Advocates for the Applicant in
IA.1230/23.
Mr.Karan Bhosale i/b NCB Law, Advocates for the
MTNL in WP.418/19, WPL.5467/22 & WP.368/20.
Ms.Neha Bhosale i/b NDB Law, for the MTNL in
WP.418/19, WPL.5467/22 & WP.368/20.
Mr.Ashish S. Gaikwad, for the SRA in WP.4721/22.
Mr.P. N. Diwan, Advocates for the SRA in WPL.5467/22.
Mr. Girish Utangale with Rohan Sawant, Advocates for
the SRA in WP.418/19.
Ms.Sayali Apte with Shreya Shah i/b P. G. Lad,
Advocates for the MHADA In WP.368/20.
Ms.Sukanta Karmkar, AGP, for the Respondent State
in WP.5467/22.
Mr.Hemant Haryan, AGP, for the Respondent State in
WP.418/19.
Mr.S. B. Gore, AGP, for the Respondent State in
WP.4721/22.
Mr. Ashok R. Varma with Y. S. Bhate, Vineet Jain, for
the UOI in WPL.5467/22.
CORAM : B. P. COLABAWALLA, J &
M. M. SATHAYE, JJ.
RESERVED ON : 21st July, 2023
PRONOUNCED ON : 1st December, 2023
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WPL.5467.22.DOCX
JUDGMENT:
[ Per B. P. Colabawalla, J.]
At the outset, we must state we heard the above Writ
Petitions on 21st July 2023 and reserved it for judgment.
Thereafter, on 7th August, 2023 the matter was moved before us by
the Petitioners in Writ Petition No.4721 of 2022 [Maharashtra
Telephone Nigam Ltd] requesting that judgment may not be
pronounced for a period of four weeks as MTNL has received some
proposal from the Developers [the Petitioners in Writ Petition (L)
No.5467 of 2022] and which is under consideration by MTNL.
Considering this request, on 7th August 2023, we recorded that we
shall not pronounce our judgment till 4 th September 2023.
Thereafter, on 4th September 2023, we were informed that the
proposal given by the Developers is rejected by MTNL. We
accordingly recorded in our order dated 4th September 2023 that
we shall now proceed to pronounce the judgment in due course.
This is how we have pronounced the judgment today.
2 The subject matter of the present Petitions is the
acquisition of 531.9 Sq. Mtrs of CTS No.1800 of village Ville Parle,
Tal. Andheri, Mumbai Suburban District (hereinafter referred to
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as the "said land"). The total area of CTS No.1800 is 607.40. Sq.
Mtrs.
3 Writ Petition No.4721 of 2022 is filed by Mahanagar
Telephone Nigam Ltd (for short "MTNL") inter alia challenging
the Notification dated 10th June 2004, and which was published in
the Government Gazette dated 30th June 2004, declaring the said
land [which forms the subject matter of the Petition] as a "slum
area" under Section 4(1) of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971 (for short
"the Slum Act"). Consequently, MTNL also challenges the
Notification dated 25th April 2006 for acquisition of the said land
under Section 14 (1) of the Slum Act.
4 Writ Petition (L) No.5467 of 2022 has been filed by
one Mr. Subhash Velji Chawda and Anupam Realities Pvt Ltd
(hereinafter referred to as "the Developers") inter alia seeking a
writ, order or direction to Respondent Nos.1 to 3 to process the
application of the Petitioners for development of the said land
without insisting upon the NOC of MTNL and directing
Respondent Nos.2 & 3 to forthwith issue a revised LOI without
any condition of consent or NOC of MTNL for the purposes of
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development of the said land. At the outset, Mr. Kanade, the
learned counsel appearing on behalf of the Developers, submitted
that the dispensation of the NOC of MTNL is sought only to the
extent as owners of the said land. In other words, Mr. Kanade
submitted that since MTNL is no longer the owner of the said
land, the condition imposed that their NOC is required [in their
capacity as owners] ought to be dispensed with. He has not asked
for dispensation of MTNL's NOC, if it is sought in any other
capacity, other than as the owner.
5 Writ Petition Nos.418 of 2019 and 368 of 2020 have
been filed by the Slum Dwellers as well as the Slum Society
seeking necessary directions to the authorities as well as the
Developers to stay the proposed slum rehabilitation under the
provisions of the Slum Act till necessary and appropriate
clearances, sanctions, No Objection Certificates are granted by the
concerned Respondents as well as MTNL. A direction is also
sought that MTNL grant the necessary and requisite clearances
and NOCs for the proposed rehabilitation scheme, and which is
being undertaken by the Developers.
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6 When all these Petitions came up before us, we found
that the result of Writ Petition No.4721 of 2022 (filed by MTNL)
will more or less decide the result in the other Writ Petitions also.
We say this because if MTNL's Petition succeeds, and we hold that
the acquisition of 531.9 Sq. Mtrs of CTS No.1800 is bad in law,
then no slum rehabilitation project can proceed especially without
the NOC of MTNL. If, on the other hand, we find that the
challenge to the acquisition is unjustified, then MTNL cannot be
held to be the owner of the said land and consequently, requiring
their NOC for the slum rehabilitation project [as owners of the
said land], cannot and would not arise. In these circumstances,
we heard the parties first on Writ Petition No.4721 of 2022.
WRIT PETITION NO.4721 OF 2022
7 As mentioned earlier, this Writ Petition is filed by
MTNL inter alia challenging two things. Firstly, they challenge the
declaration of the said land as a "slum area" under Section 4(1) of
the Slum Act. Consequently, they also challenge the acquisition of
the said land under Section 14(1) of the said Act.
8 Before we deal with the arguments canvassed in Writ
Petition No.4721 of 2022, it would be necessary to set out some
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very brief facts. It is the case of MTNL that land bearing CTS
Nos.1718, 1719 & 1800 of village Vile Parle, Tal. Andheri, Mumbai
Suburban District (hereinafter referred to as the "Larger Land")
was acquired for the construction of a Telephone Exchange
Building and staff quarters of the Bombay Telephone, Post and
Telegram Department. This acquisition was done on 20 th March
1981 from the original owners by following the proper procedure
as laid down in the Land Acquisition Act, 1894. According to
MTNL, possession of the Larger Land [and which includes 531.9
Sq. Mtrs. of CTS No.1800 (the said land)] was handed over to the
Bombay Telephone, Post and Telegram Department. Thereafter,
by a Deed of Sale between MTNL and the President of India dated
30th March 1987 all the assets acquired and owned by/through the
Bombay Telephone Service and Delhi Telephone District, was sold,
transferred and conveyed to MTNL. This is how MTNL claims to
be the owner of the Larger Land, including the said land [ i.e. 531.9
Sq. Mtrs. of CTS No.1800].
9 Since there were slums on the said land [531.9
Sq.Mtrs of CTS 1800], the same was declared as a "slum area" vide
a Notification issued under Section 4(1) of the Slum Act. Finally,
since the said "slum area" was not being developed, a proposal
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was sent by the Slum Society for acquisition of the said land, and
which was done under Section 14(1) of the Slum Act.
10 In this factual backdrop, Ms. Dikshita Gupte, the
learned advocate appearing on behalf of MTNL, submitted that
Section 3C of the Slum Act contemplates declaration of a Slum
Rehabilitation Area. She submitted that under Section 3C(1), after
publication of any Slum Rehabilitation Scheme, if the Chief
Executive Officer, on being satisfied about the circumstances in
respect of any land, whether or not previously declared as a slum
area, justifying its declaration as the Slum Rehabilitation Area for
implementing the Slum Rehabilitation Scheme, shall, after giving
the land owners 30 days notice, and after giving a reasonable
opportunity of being heard, by an order published in the Official
Gazette, declare such land to be a Slum Rehabilitation Area. She
submitted that in the facts of the present case, admittedly no
notice has been given to the landowner and which is MTNL. This
apart, she relied upon Section 3Z-6 of the Slum Act to contend that
notwithstanding anything contained in the Slum Act, nothing in
Chapter I-C shall apply to inter alia lands belonging to the Central
Government or any entity thereof unless the same is voluntarily
offered for the housing scheme. She submitted that MTNL, being
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a Company owned and controlled by the Central Government, is
an entity thereof and any lands belonging to this entity cannot be
utilized for any housing scheme unless voluntarily offered by
MTNL. If this be the case, then, the entire acquisition proceedings
are bad, was the submission.
11 We have heard Ms. Gupte at some length on this
contention. After going through the relevant provisions of the
Slum Act, we find absolutely no merit in the contention canvassed
by Ms. Gupte as it proceeds on an entirely wrong premise. The
question of Section 3C coming into the picture would arise only
when, after the publication of a Slum Rehabilitation Scheme
[under Section 3B], there is a declaration of a Slum Rehabilitation
Area. In the present case, no land belonging to MTNL is declared
as a Slum Rehabilitation Area as contemplated under Section 3C.
Once this is the case, there is no question of giving any notice to
MTNL as contemplated under the said Section. To put it in a
nutshell, if there is no declaration under Section 3C, there is no
question of giving any notice. As far as the reliance placed on
Section 3Z-6 is concerned, we find that even this provision relied
upon is of no consequence to the acquisition at hand. Section 3Z-6
specifically stipulates that the provisions of Chapter I-C shall not
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apply in certain cases. Section 3Z-6 then stipulates that nothing in
Chapter I-C shall apply to lands belonging to the Central
Government or any entity thereof unless the same is voluntarily
offered in the housing scheme. The declaration of the said land as
a "slum area" [under Section 4(1)] is not under Chapter I-C but
under Chapter-II of the Slum Act and even the acquisition of the
said land is under Chapter-V of the said Act. In these
circumstances, we fail to understand, how reliance can be placed
on the provisions of Section 3Z-6 to nullify the entire acquisition.
In these circumstances, we find that this argument/contention is
wholly misconceived and misplaced.
12 Faced with this situation, Ms. Gupte then contended
that no notice was given to the landowner even before the said
land was declared as a "slum area" under Section 4(1) of the Slum
Act. If this be the case, there was no question of there being any
acquisition of the said land for rehabilitating the slum dwellers
squatting thereon. This apart, once again reliance was placed on
Section 3Z-6 to contend that since the said land belonged to the
Central Government or any entity thereof, it could not have been
declared as a "slum area" under Section 4(1) of the Slum Act.
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13 We have heard Ms. Gupte at quite some length on the
issue of whether any notice is required to be issued MTNL [the
landowner at the time] before the said land was declared as a
"slum area" [under Section 4(1) of the Slum Act]. Since a
declaration of a particular land as a "slum area" is to be issued
under Section 4 of the Slum Act, it would be apposite to reproduce
the same:-
"4. Declaration of slum areas
(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 -
(i) in any respect, unfit for human habitation; or
(ii) by reasons of dilapidation, overcrowding, faulty
arrangement and design of such buildings,
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,-
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(a) cessed buildings in the island City of Mumbai
as defined in clause (7) of section 2 of the
Maharashtra Housing and Area Development
Act, 1976, or old buildings belonging to the
Corporation;
(b) building 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 for 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;
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 area in which
the slum area is situated and also displayed at some
conspicuous place in the 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
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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 purpose 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)."
14 We find that under the scheme of Section 4, and
which deals with a declaration of a particular land as a "slum
area", does not contemplate any notice being issued to the
landowner. A declaration under Section 4(1) is given by the
Competent Authority only once it's satisfied that a particular 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 that
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area having inadequate or no basic amenities, or being insanitary,
squalid, overcrowded or otherwise. The Competent Authority can
also declare a particular area as a "slum area" when buildings in
that area, used or intended to be used for human habitation are in
any respect unfit for human habitation, or by reasons of
dilapidation, overcrowding, faulty arrangement and design of such
buildings, narrowness or faulty arrangement of streets, lack of
ventilation, light or sanitation facilities or any combination of
these factors, is detrimental to the health, safety or convenience of
the public of that area. Sub-section (3) of Section 4 clearly gives a
right of appeal to any person aggrieved by such declaration to
approach the Slum Tribunal [under the Slum Act] within a period
of 30 days from the date of the said declaration. In fact, the
statute also stipulates that no such appeal filed after the expiry of
30 days shall be entertained. At least under Section 4, it is clear
that at the time of declaring a particular land as a "slum area", no
notice is required to be given to the landowner. Further no other
provision under the Slum Act or the Rules framed thereunder have
been brought to our attention which stipulate that before a
particular land is declared as a "slum area" [under Section 4(1)],
notice has to be issued to the landowner. Further, the landowner,
who is aggrieved by such declaration, and which would then be in
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the public domain [as the same is notified in Official Gazette],
would have to challenge such declaration before the Slum Tribunal
within 30 days of such declaration. We therefore find the
argument canvassed by Ms. Gupte that non issuance of notice to
the landowner before issuing a declaration under Section 4(1) is
fatal to the acquisition, is wholly unfounded. At least Section 4
does not anywhere contemplate that notice has to be given to the
landowner before his land is notified as a "slum area". This is
apart from the fact that in the present case a public notice dated
22nd December 2003 was published in the newspaper before the
said land was declared as a "slum area" under section 4(1) of the
Slum Act. In fact, the entire procedure followed by the authorities
before declaring the said land as a "slum area" is set out in
paragraphs 6 to 11 of the Affidavit dated 12 th June 2023 filed by
Respondent Nos. 2 & 3.
15 As far as the reliance placed on Section 3Z-6 (g) is
concerned, as stated earlier, Section 3Z-6 categorically
contemplates that notwithstanding anything contained in the
Slum Act, nothing in Chapter I-C shall apply inter alia to the lands
belonging to the Central Government or any entity thereof unless
the same is offered voluntarily for the housing scheme. In fact, the
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heading of the sub-section itself says that the provisions of
Chapter I-C are not to apply in certain areas. The declaration of
the MTNL's land as a "slum area" is not under Chapter I-C but
under Chapter II of the Slum Act. In these circumstances, we find
that the reliance placed on Section 3Z-6 (g) to buttress the
argument that no land belonging to the Central Government
and/or entity thereof can be declared as a "slum area" is wholly
misconceived. This is apart from the fact that the Central
Government has filed an Interim Application in Writ Petition (L)
No.5467 of 2022 wherein, it has stated that the Union of
India/Department of Telecommunication has not retained the said
land for any purpose, and therefore, MTNL is a proper and
necessary party to safeguard its interest in its asset and that the
Union of India/department of Telecommunication has no role to
play in the matter. In fact, in this Interim Application, Union of
India has also categorically stated that MTNL is a board driven
public Sector Undertaking and MTNL's management is completely
free to decide and finalize its commercial business and
administrative policies. The Government does not interfere in its
day-to-day affairs, including administrative matters. We,
therefore, find no merit in the argument canvassed by Ms. Gupte
that the declaration of the said land as a "slum area" under
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Section 4 (1) of the Slum Act, is contrary to law or suffers from any
legal infirmity.
16 This now leaves us to deal with the argument of Ms.
Gupte that the acquisition of the said land under Section 14 (1) is
bad because no notice was served on the landowner (MTNL) as
contemplated under the proviso to the said Section. Before we
deal with this argument, it would be apposite to set out the
provisions of Section 14 of the Slum Act which read thus:-
"14. Power of State Government to acquire land"
(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 reasons 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.
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(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."
17 Section 14 comes under Chapter V of the Slum Act
and which Chapter basically deals with the procedure for
acquisition. Section 14 (1) contemplates that 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 the 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. Sub-section (2) of Section 14 contemplates that 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. However, there is a caveat to this. The proviso to
Section 14(1) stipulates that before publishing such notice, the
State Government, or as the case may be, the Competent
Authority, may call upon by notice, the owner or any other person
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who, in its opinion may be interested in such land, to show cause
in writing why the land should not be acquired. If there is any
objection/s received, the Competent Authority then, with all
reasonable despatch, forward the objection/s so submitted
together with its report in respect thereof to the State
Government. Thereafter, the State Government, on considering
the report and the objections, if any, may pass such order as it
deems fit.
18 There is no doubt that before any acquisition takes
place under Section 14(1), notice has to be issued to the landowner
to show cause why the said land ought not be acquired. In the
facts of the present case, the Slum Authority (SRA) has filed an
affidavit dated 12th June, 2023 in which it is categorically stated
that a public notice for raising objections, if any, was published in
the newspaper and specific notice for raising objections, if any,
was also issued to the landlords of the said land as well as the
Divisional Engineer (L. A.) Land Acquisition, Mahanagar
Telephone Nigam Ltd, Telephone House (East Wing), V. S. Marg,
Dadar (W), Mumbai 400 028, on 2nd July, 2005. It is further
stated in the said affidavit that the said notice issued to MTNL was
duly received by the Incharge Central Registry, MTNL, Telephone
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House, Prabhadevi Bombay 400 028 on 8th July 2005. Its
acknowledgment is also annexed to the affidavit as Annexure-3.
19 In answer to this, Ms. Gupte drew our attention to the
affidavit in rejoinder filed by the Petitioner wherein the Petitioner
has stated that the alleged acknowledgment of MTNL, cannot be
authenticated and the Petitioner had verified the records of the
Central Registry Unit and confirms that no such notice has been
received by the Petitioner. In this affidavit, it is also stated that
the notice number seems to have been appended later on as an
afterthought to the envelope allegedly addressed to MTNL and the
authenticity of which is questionable.
20 We find that the statements made in this affidavit (in
rejoinder) are very carefully worded. The acknowledgment has
been produced by the SRA to establish the notice being served on
MTNL. MTNL does not in its affidavit allege that the endorsement
of MTNL on the said acknowledgment is either forged or
fabricated. What they allege is that, on the envelope, something
has been appended later to somehow link that envelope to the
letter addressed by the SRA to MTNL establishing that the said
notice has been duly served. We are afraid that in light of the
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acknowledgment produced by the SRA and when there is no
allegation that the acknowledgment produced is forged or
fabricated, we are unable to accept this submission. This
contention anyway, is in the realm of disputed questions of fact
and therefore can not be gone into in Writ jurisdiction of this
Court. Even otherwise, we find that this argument is made too late
in the day. The property of MTNL was admittedly acquired under
Section 14(1) by publication in the Official Gazette on 25 th April
2006. Hence, the fact that the MTNL's property was acquired was
in the public domain in the year 2006 itself. Yet, the present
Petition is filed in the year 2022. Faced with this, Ms. Gupte
contended that MTNL came to know of this acquisition only when
the name of the Government of Maharashtra was recorded in
Mutation Entry No.1782 of 2019 in relation to the said land. We
are afraid we are unable to accept this argument for such a long
delay. The fact of the matter is that the acquisition of the said land
was published in the Official Gazette on 25 th April 2006. Hence, it
was in the public domain. MTNL, therefore, cannot be heard to
say that they were unaware of the acquisition till the year 2019.
This argument is stated only to be rejected. Further, we find that
MTNL has, as far back as on 31st December 2012, issued a
provisional NOC to the Developers for the proposed Slum
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Rehabilitation Scheme on the said land. Their letter in fact says
that final NOC will be issued on the fulfillment of the conditions
mentioned in the provisional NOC. For the sake of ready
reference, the said letter is reproduced hereunder:-
Mahanagar Telephone Nigam Limited, Mumbai
(A Government Of India Enterprise)
% Senior Manager (IGS), 6th Floor, Telephone House,
V.S. Marg, Prabhadevi, Mumbai-400 028
To: M/s. C. Subhash and Associates
2, Ganesh Bhuvan,
Daftary Road,
Malad (E) Mumbai-400 097.
No.Sr.Manager (IGS)/NOC BLDG/W-I/149/2012-13 Date 31/12/2012
PROVISIONAL NO OBJECTION CERTIFICATE; VALID FOR ONE
YEAR FROM THE DATE OF ISSUE.
Sub: Issue of Provisional NOC for Proposed S.R. Scheme on plot bearing C.T.S.
No.1800, 1801, and 1801/1 to 13, of Village Vile Parle (E) F.P. No.307
(pt),308(pt), 309(pt) and 310(pt) TPS Vile Parle No.V of Nanada Patkar Road,
Vile Parle (East), Mumbai
Ref:No.SRA/ENG/910/KE/STGL/LOI Dated:22/10/2012.
Kindly refer to your letter No.nil Dated 06/11/2012 on the above subject.
The matter was examined with respect to the drawings and questionnaire
submitted by you. This is to intimate you that "PROVISIONAL NO OBJECTION
CERTIFICATE" is hereby accorded on behalf of MTNL Mumbai for carrying out
building construction work subject to the fulfillment of following conditions
w.r.t. the Floor Plan attached:-
1. One hand hole is to be provided at the entrance of the compound of building
(location A in floor plan) of size 1 x 1 x 0.6 m Other hand holes at entrance of the
building (location E in floor plan), and at location B, C & E in floor plan attached
herewith.
2. 110 m.m. HDPE pipes marked as "MTNL Duct" on Floor Plan, are to be laid
between hand holes.
3. 63 m.m. PVC pipes has to be laid from last hand hole to the D.P. Box.
4. Space for D.P. Box is to be provided in each wing.
5. U/G cable will be laid by MTNL in each wing.
6. Separate pipe exclusively for Telecom facilities is to be provided in the
building to ensure proper maintenance without affected other services like cable
TV, Internet etc.
The above works may be carried out in consultation with Deputy General
Manager External of Vile Parle Telephone Exchange area. On fulfillment of the
above mentioned conditions the same is be intimated to this office.
Final NOC will be issued on fulfillment of the above conditions.
For any further clarification you may contact the u/s personally or on
telephone Nos.24362165 or 24310444 or Fax 24311002.
Thanking you,
sd/-
1st December, 2023
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WPL.5467.22.DOCX
Senior Manager (IGS)
MTNL, Mumbai.
Encl.As mentioned above.
21 Thereafter, another letter dated 16 th June 2014 is
addressed by MTNL to the Chief Executive Officer-Slum
Rehabilitation Authority, wherein MTNL has issued a NOC for
cable laying and wiring of telecom facility in the proposed
building. At least these two letters prima facie show that MTNL
was very much aware that the Slum Scheme was being
implemented by the Developers on the said land. We, therefore,
find no merit in the contention of Ms. Gupte that MTNL became
aware of the acquisition only in the year 2019. Hence, even on the
ground of delay and laches, we do not think that MTNL is in a
position to challenge the acquisition on the specious ground that
no notice was served on them under the proviso to Section 14 (1)
before their land was acquired. For all these reasons, we find no
merit in Writ Petition No.4721 of 2022 and the same is hereby
dismissed. However, there shall be no order as to costs.
WRIT PETITION (L) NO.5467/2022
22 As mentioned earlier, this Writ Petition is filed by the
Developers seeking a dispensation of the NOC of MTNL. Mr.
Kanade has restricted himself to Condition No.36 of the LOI dated
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22nd October 2012 which contemplates that No Objection
Certificate from the respective land owning authority shall be
obtained within one month from approval of S.R. Scheme as per
clause No.2.8 of DCR 33 (10), if any.
23 It was Mr. Kanade's contention that relying upon this
Clause, the authorities are insisting on the NOC of MTNL. Since
we have held that MTNL is no-longer the owner of the said land,
and the same vest in the Government of Maharashtra, there is no
requirement of MTNL giving their NOC as contemplated under
Condition No. 36 of the LOI dated 22nd October 2012.
24 We however, make it clear that this does not mean
that if MTNL's NOC is required under any other clauses of the
LOI, the same are dispensed with. It only means that NOC of
MTNL is not required as the land owner, since it was divested of
its ownership on the acquisition of the said land by the State of
Maharashtra.
25 Writ Petition (L) No. 5467 of 2022 is accordingly
disposed of in the aforesaid terms. No order as to costs.
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WRIT PETITION NO. 418 OF 2019 AND WRIT PETITION
368 OF 2020
26 As far as these two Petitions are concerned, Mr.
Manish V. Khadakban, the learned Counsel appearing on behalf of
the Petitioners, submitted that if MTNL's NOC is not required as a
land owner, then, nothing would really survive in these Writ
Petitions because in these Writ Petitions the apprehension was
that the slum dwellers would be dis-housed and the project would
not go forward because of MTNL refusing to give its NOC. Since
now this Court has held that MTNL is not required to give its NOC
[as the landowner], these Writ Petitions can be disposed of in
terms of this order. It is accordingly so ordered.
27 In these circumstances, all the above Writ Petitions
are disposed of. No order as to costs.
28 This order will be digitally signed by the Private
Secretary/ Personal Assistant of this Court. All concerned will act
on production by fax or email of a digitally signed copy of this
order.
[M. M. SATHAYE, J.] [ B. P. COLABAWALLA, J ].
1st December, 2023
Aswale
