A. H. Wadia Trust And 4 Ors vs State Of Maharashtra And 7 Ors
2023 Latest Caselaw 2908 Bom

                                             WP 2284 of 2018.doc


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           ORDINARY ORIGINAL CIVIL JURISDICTION
                     WRIT PETITION NO. 2284 OF 2018
1.       A.H. Wadia Trust                         )
2.       Jehangir Wadia                           )
3.       Muncherji Nusserwanji Munchrji           )
         Cama                                     )
4.       Adil Wadia                               )
5.       Sheroo Wadia                             )
         All of Mumbai, Adult Indian              )
         Inhabitants Trustees of the              )
         "A.H. Wadia Trust", a Public Trust       )
         duly registered under the provisions )
         of the Bombay Public Trusts Act,1950)
         and having their office address at       )
         70, Dr.V.B. Gandhi Marg,                 )
         Mumbai - 400 023                         )...Petitioners
                          Versus
1.       State of Maharashtra                     )
         through the Govt. Pleader, High Court)
         having his office at PWD Building        )
         High Court, Bombay                       )
2.       Housing Department                       )
         Government of Maharashtra                )
         through its Secretary, having its        )
         office address at Mantralaya,            )
         Mumbai - 400 032                         )
3.       Additional Collector (ENC) Reml          )


Tikam                                                        page 1 of 21




        ::: Uploaded on - 24/03/2023              ::: Downloaded on - 25/03/2023 13:50:38 :::
                                             WP 2284 of 2018.doc


         Eastern Suburban District,              )
         having his office address at            )
         Industrial Assurance Building,          )
         1st Floor, Opp. Churchgate Station      )
         Mumbai - 400 020                        )
4.       Raza Ekta Cooperative Housing           )
         Society (Proposed)                      )
         Through Chief Promoter Mr. Adib-Ur )
         Rahaman Shaikh having their             )
         Address at Kallu Compound 258           )
         Bazar Ward, Near Mehboob Suhani         )
         Masjid, Kurla (W), Mumbai - 400 070)
5.       Gulam Mohd. Yunus Allarakha             )
         Maulabux of Mumbai,Adult Indian         )
         Inhabitant, having his office at        )
         Kurla Compound, Bazar Ward,             )
         258/2, New Mill Road, Kurla (W),        )
         Mumbai - 400 070                        )
6.       Slum Rehabilitation Authority           )
         Adminstrative Building,                 )
         Anant Kanekar Marg, Bandra (E),         )
         Mumbai - 400 051                        )
7.       Chief Executive Officer, S.R.A.         )
         Administrative Building,                )
         Anant Kanekar Marg, Bandra (E)          )
         Mumbai - 400 051                        )
8.       Deputy Collector, Eastern Suburbs       )
         SRA, Administration Building            )


Tikam                                                       page 2 of 21




        ::: Uploaded on - 24/03/2023             ::: Downloaded on - 25/03/2023 13:50:38 :::
                                                       WP 2284 of 2018.doc


         Anant Kanekar Marg, Bandra (East) )
         Mumbai - 400 051                                  )...Respondents



Mr. Atul Damle, Senior Advocate a/w. Mr. Chaitanya Chavan, Mr.
Nil Patel, Mr. Samir Panwalkar and Mr. Amit Joshi i/by M/s. L.R. &
Associates, Advocates for the Petitioners.
Mr. Kedar Dighe, AGP, State, Advocate for Respondent Nos. 1 to 3
and 8
Mr. V.T. Dubey, Advocate for Respondent No.4
Mr. Vijay Patil, Advocate for the Respondent Nos.6 to 8

                                   CORAM:- R.D. DHANUKA &
                                          M.M. SATHAYE, JJ.
                                   RESERVED ON: 20TH FEBRUARY, 2023.
                                   PRONOUNCED ON: 24 MARCH, 2023


JUDGMENT (PER R.D. DHANUKA J.)

1. By this Petition filed under Article 226 of the

Constitution of India, the Petitioners have prayed for a Writ of

Certiorari for quashing and setting aside the Notification

dated 18th September, 2017 issued by Respondent Nos. 1 and

2 under the proviso to Section 14(1) read with paragraph A of

sub-clause (i) of clause (c) of Section 3D of Chapter 1A of the

Maharashtra Slum Areas (Improvement, Clearance and

Redevelopment) Act, 1971 (for short 'the Slum Act'), and

subsequent Report dated 28 th August, 2013 submitted by

Tikam page 3 of 21

WP 2284 of 2018.doc

Respondent No.7 along with the purportedly issued the

subsequent Show Cause Notice No. SRA/DC/T/D-4/Raza Ekta/

Hearing/ 2013/6 dated 22nd April, 2013.

2. The Petitioners have also prayed for a writ of

Certiorari for quashing and setting aside the Report dated

27th December, 2010 submitted by Respondent No.3 in

respect of the said Show Cause Notice dated 22 nd April, 2010

issued under the proviso to the Slum Act and the Notification

dated 28th August, 2015 issued by Respondent No.7.

3. The Petitioners also seek a declaration that the

above referred documents are in contravention of law and in

breach of principles of natural justice.

4. By way of amendment, the Petitioners seek an

alternate relief that in the event of this Court

upholding/refusing to decide/adjudicate upon the validity of

the said 3C Notification, this Court shall issue necessary

directions, order, writ to Respondent Nos. 6 and 7 to call upon

the Petitioners to submit a Slum Rehabilitation Scheme in

respect of the Trust Land in accordance with the law by

recognizing the Petitioners' preferential right.

Tikam                                                               page 4 of 21





                                                WP 2284 of 2018.doc

5. Some of the relevant facts for the purpose of

deciding the Petition, are as under:

6. The Petitioners are the owners of the Land bearing

CTS No.387, 387/1 to 34 admeasuring 1177.40 sq.mtrs. lying

and situated at Village Kurla, Taluka Kurla, Mumbai Suburban

District. (for short "the said writ land".)

7. On 22nd January, 1976 the said area was declared as

a slum area by a Notification issued by the Authority. On 22 nd

April, 2010, a Show Cause Notice was issued by Respondent

No.3 to Petitioners to show cause as to why proposal for

acquisition should not be submitted to the Respondent No.1

for approval. The Petitioners were granted hearing by the

Authority in pursuance to the said Show Cause Notice dated

22nd April, 2010.

8. On 9th June, 2011, the Petitioners filed Writ Petition

bearing Writ Petition No. 583/2011 challenging the show

cause notice dated 22nd April, 2010 and also the report.

Initially, this Court directed the parties to maintain status quo.

On 13th October, 2011,the said Writ Petition came to be

withdrawn with liberty to file a fresh one as and when

Tikam page 5 of 21

WP 2284 of 2018.doc

notification of acquisition would be published. It is the case of

the Petitioners that on 20th October, 2013, the Respondent

No.4 through is Chief Promoter filed application before

Respondent No.3 for acquiring the writ property.

9. It is the case of the Petitioners that on 9 th April,

2013, the hearing conducted by Respondent No.7 wherein

the Petitioners were not present as no notice was served upon

them. The said notice was served upon the erstwhile

Advocates of the Petitioners, who according to the Petitioners

had returned papers. It is the case of the Petitioners that on

22nd April, 2013, Respondent No.8 purportedly issued another

notice, calling upon the Petitioners and their erstwhile

Advocates to remain present for hearing to be held on 7 th May,

2013.

10. On 7th May, 2013, the hearing was held before

Respondent No.7. In the Roznama it was recorded that a

notice was issued at the Petitioners' Fort address as well as

their erstwhile Advocates yet none remained present. On 28 th

August, 2013, Respondent No.7 forwarded a subsequent

report recommending acquisition of the writ property. On

30th April,2014, Respondent No.1 issued a letter to the

Tikam page 6 of 21

WP 2284 of 2018.doc

Respondent No.7 demanding explanation on Notices

purportedly served on Petitioner Trust. On 5 th November,

2014 and 18th November, 2014, Respondent No.8 issued a

letter informing Respondent No.4 that survey of the Trust

Land would be conducted on 10 th November, 2014. No notice

was given to the Petitioners. The survey of the writ property

was conducted.

11. On 15th December, 2014, Respondent No.1 issued

an internal letter stating that the Trust Land can be acquired

and the Slum Rehabilitation Scheme of 33(10) of DCR can be

implemented.

12. On 18th September, 2017 and 25th January, 2018,

the Petitioners were served with a Compensation Notice,

calling upon the Petitioners to submit relevant documents to

Respondent No.8 to enable him to calculate the quantum of

compensation to be awarded in lieu of acquisition of the writ

property.

13. It is the case of the Petitioners that only through

the Compensation Notice, the Petitioners became aware of

the impugned Notification dated 18 th September, 2017 under

Tikam page 7 of 21

WP 2284 of 2018.doc

which the writ property came to be acquired under the

provisions of the Slums Act. The Petitioners accordingly filed

this petition for various reliefs. The Petitioners applied for

leave to carry out various amendments in the Writ Petition,

which was granted by this Court. Writ Petition is opposed

by the Respondents by filing an Affidavit in Reply.

14. Mr. Damle, learned Senior Counsel for the

Petitioners invited our attention to various documents

annexed to the Petition and also the pleadings filed by the

Respondents and submitted that the impugned Notification

dated 18th September, 2017 is in breach of the principles of

natural justice and in violation of the Petitioners' preferential

right to redevelop the said land. The said Notification was

issued on 18th September, 2017 by the Slum Rehabilitation

Authority (hereinafter referred to as "SRA"), to implement the

Slum Rehabilitation Scheme in regard to the Slum

Rehabilitation Area as described therein. It is submitted that

the said impugned Notification is issued without following the

legislative intent as enshrined in Section 13 r/w. 3B(2) r/w.

Section 3D (b)(iii) of Chapter 1A of the Slum Act. Respondent

Nos. 6 to 8 were under the mandatory obligation to call upon

Tikam page 8 of 21

WP 2284 of 2018.doc

the Petitioners to submit a scheme of rehabilitation with

regards to the writ property before proceeding with

acquisition thereof.

15. It is submitted by the learned Senior Counsel that

SRA has failed to give an opportunity to the Petitioners for

submitting a scheme as stipulated under Section 13 r/w 3B

(2) r/w. Section 3D (b) (iii) of Chapter 1A of the Slum Act

which is required to be given after a piece of land is declared

as Slum Rehabilitation Area. The Petitioners were called upon

to submit a Scheme in accordance with the provisions.

16. It is submitted by the learned Senior Counsel that

the SRA did not pass any order determining the rights of the

Petitioners to redevelop the writ property and did not pass

any order communicating to the Petitioners under proviso to

Section 13(i) of the Slum Act. The SRA was bound to

scrupulously follow the provisions of the Slum Act before

taking any steps for acquiring the writ property. He

submitted that Section 3D of Chapter 1A of Slum Act is

applicable only upon the area declared as Slum

Rehabilitation Area. In this case, the Notification under

Section 3C came to be issued only on 31 st August, 2015 which

Tikam page 9 of 21

WP 2284 of 2018.doc

was much prior to passing of the impugned Award dated 31 st

August, 2015.

17. It is submitted by the learned Senior Counsel that

the action of the SRA of treating Section 3C of Slum Act as

mere formality is illegal, perverse and is liable to be quashed

and set aside. Failure of issuance of Notices on the Petitioners

before formulating the impugned report dated 28 th August,

2013 (recommending acquisition) and impugned acquisition

notification under section 14(1) of Chapter 1A of the Slum Act

has vitiated the entire acquisition proceeding.

18. The impugned Notification dated 31 st August, 2015

declaring the writ property as slum rehabilitation area was

issued without issuing any notice to the Petitioners in any

manner whatsoever.

19. Learned Senior Counsel placed reliance on the

judgment of the Supreme Court in case of Prabin Ram

Phukan and Another Vs. State of Assam and Others

(2015) 3 Supreme Court Cases 605 [Paragraph Nos. 24 to

27], and Municipal Corporation of Greater Mumbai Vs.

Abhilash Lal and Others (2020) 13 Supreme Court Cases

234 [Paragraph 35]. Learned Senior Counsel also placed

Tikam page 10 of 21

WP 2284 of 2018.doc

reliance on the order dated 9 th June, 2011 passed by the this

Court in Writ Petition No. 583 of 2011 in case of Jehangir

Wadia & Ors. Vs. The State of Maharashtra and Ors. in

support of the submission that before a valid order under

Section 14 of the Maharashtra Slum Areas (Improvement,

Clearance and redevelopment) Act, 1971 can be passed the

requirement of Section 5 has to be complied with, failing

which the notification under Section 14 would not be valid.

20. It is submitted by the Learned Senior Counsel that

the Learned Advocate, who was representing the Petitioners

while the first notice was issued to the Petitioners, had

returned the papers and not communicated the Petitioners

while the second notice was issued. He submitted that the

learned Advocate representing the Petitioners, as a matter of

fact, was not even served the second notice. He submitted

that the Panchnama would indicate that so far as other parties

were concerned, notices were served upon them personally.

Whereas, in case of Petitioners, the notice was alleged to have

been pasted on site.

21. It is submitted that the SRA had wrongly informed

the State Government on 3rd July, 2014 that the notice was

Tikam page 11 of 21

WP 2284 of 2018.doc

served upon the Petitioners as per Section 13D of the Slum

Act. He submitted that no documents were produced by the

SRA regarding pasting of notice at the Slum Site. It is

submitted that the service of notice was required to be

effected in a particular manner. This service could not be

effected in any other manner.

22. Mr. Patil, learned counsel for the SRA, on the other

hand, invited our attention to various documents annexed by

the SRA in its affidavit. He also invited our attention to the

averments made by the Petitioners in paragraph Nos. 5 and 6

of the Affidavit in Rejoinder. It is submitted that even pursuant

to three notifications issued by the Collector to the

Petitioners, the Petitioners never submitted any scheme for

redevelopment of the writ property. The Petitioners wanted

to sell the writ property in favour of the third party and did

not want to redevelop the writ property. He submitted that

on 27th December, 2010, admittedly the Petitioners were

heard by the SRA. Even at that stage, the Petitioners did not

submit any scheme for redevelopment of the writ property.

No proposals were given by the Petitioners.

23. It is submitted by the learned counsel for the SRA

Tikam page 12 of 21

WP 2284 of 2018.doc

that the notice was sent by post upon Petitioner No.1 as well

as Petitioner No.2. The notice was pasted on the Slum site.

He submitted that there is no straight jacket formula

applicable while following the principles of natural justice. He

relied upon the judgment of the Supreme Court in case of

M/s. Dharampal Satyapal Ltd. Vs. Deputy Commissioner

of Central Excise, Gauhati and Ors.[2015 AIR SCW3884]

(Paragraph Nos. 29, 30 and 36). He submitted that award has

already been made by the Authority in respect of the writ

property.

24. Learned counsel for the SRA invited our attention

to the stand taken by the Petitioners themselves in the notice

dated 28th November, 2018 addressed to their advocate

through the Deputy Collector, SRA informing that the Trust

who is involved in charitable activities, has filed Originating

Suit No.379 of 2016 for seeking appropriate direction and

opinion of this Court in respect of interpretation of such

clauses of the last Will and Testament of Ardeseer Hormusjee

Wadia (which is a private instrument, defining functions of

Trust) so as to enable the Trust to construct its land by

redevelopment. He submitted that the said Originating

Tikam page 13 of 21

WP 2284 of 2018.doc

Summons filed by the Petitioners for seeking an appropriate

directions/opinion and advise on the construction of the such

clauses of the last Will and Testament of Ardeseer Hormusjee

Wadia has still pending before this Court. He submitted that

this aspect has already been considered by this Court in

paragraph 20 of the judgment delivered by this Court in the

case of the Petitioners themselves, raising identical issue in

Writ Petition (L) No. 19626 of 2022.

25. Learned counsel also invited our attention to the

averments made by the Petitioners in paragraph 6 of the Writ

Petition stating that the Will is silent on the aspect of

developing the Trust lands on profit making basis and in

particular does not authorize the Trustees to carry out

construction on its lands. In view of such exigency and

ambiguity emanating from the said Will , the Trustees of the

said Trust has approached this Court by filing an Originating

Summons being Suit No. 379/2016, inter alia seeking

direction/opinion of this Court in respect of interpretation of

such clauses of the Will, which would permit the Trustees to

redevelop the Trust lands on profit making basis.

26. It is submitted that, even otherwise, the Petitioners

Tikam page 14 of 21

WP 2284 of 2018.doc

could not have submitted a scheme, in view of the pendency

of the said Originating Summons before this Court. The

learned counsel for the SRA also placed reliance on the letter

dated 18th May, 2022 addressed by the Advocates,

representing the Petitioners to the Chief Executive Officer,

SRA and Tahasildar, SRA stating that the Petitioner Trust has

filed Originating Summons before this Court which is pending

and once the Trust is permitted by this Court, the Trust would

redevelop the said property by submitting a scheme for

rehabilitation under the Slum Act.

27. Mr. Damle, learned Senior Counsel does not

dispute that the said Originating Summons filed by the

Petitioners is still pending.

REASONS AND CONCLUSIONS:

28. It is not in dispute that this Court has already

considered the factum of the pendency of the said Originating

Summons in the order passed by this Court and judgment

delivered in Writ Petition (L) No. 19626 of 2022.

29. Learned counsel for the SRA also placed reliance

on the judgment of this Court in the case of Deena Pramod

Baldota Vs. State of Maharashtra and Ors. in W.P. (L)

Tikam page 15 of 21

WP 2284 of 2018.doc

No. 19626 of 2022 delivered on 17th November, 2022.

30. The Petitioners have challenged the Notification

issued by the SRA for acquiring the writ property of the

Petitioners on the ground that no notice was served upon the

Petitioners when the second report was submitted and before

passing the impugned notification. The grievance of the

Petitioners is that in view of the no notice being served by the

SRA upon the Petitioners, the Petitioners could not get an

opportunity of submitting a scheme for redevelopment of the

writ property by exercising preferential rights of the

Petitioners to submit a scheme under the provisions of the

Slum Act.

31. The question that arises for consideration of this

Court is to whether the rights of Petitioners are prejudiced if

this Court comes to the conclusion that notice and second

report were not served upon the Petitioners.

32. The purpose of issuance of notice upon the

Petitioners was to give an opportunity to the Petitioners to

submit a scheme for redevelopment by exercising the

preferential rights.

33. This Court has to consider that even if notice would

Tikam page 16 of 21

WP 2284 of 2018.doc

have been served by the Respondents, as sought to be

canvassed by the Petitioners, whether the Petitioners could

have submitted a scheme for redevelopment of the writ

property in view of the pendency of the Originating Summons

for interpretation / guidance of this Court in respect of the

Will and Testament which would deal with all the properties

of the Trust including the writ property. Admittedly, the

averments made in the petition and also the correspondence

placed on record by SRA and also by the Petitioners itself

would clearly indicate that the Petitioners have submitted a

Scheme for redevelopment only upon disposal of the said

Originating Summons and upon a guidance in respect of

interpretation of such clauses of the said Will and Testament

which is a subject matter of the said Originating Summons.

34. Till the Petitioners would have been allowed to

carry out any development or to sell the said property

including the writ property by adjudicating upon in the said

Originating Summon, the Petitioner admittedly could not have

submitted any scheme for redevelopment. We have perused

the order passed in WP (L) No. 19626 of 2022.

35.               This Court delivered a judgment       on 9th January,


Tikam                                                      page 17 of 21





                                                     WP 2284 of 2018.doc

2023 in Writ Petition No. 1347 of 2019 in case of A.H. Wadia

Trust and Ors. Vs. State of Maharashtra and Others,

inter alia, praying for a writ of certiorari for quashing and

setting aside the similar order and the notification issued by

SRA on similar grounds. This Court in the said judgment has

held that there is no straight jacket formula applicable while

following the principles of natural justice. The Court has to

consider whether the party who has alleged violation of

principles of natural justice was at all affected or any

prejudice is caused to him in view of the allegation of

violation of principles of natural justice or not.

36. This Court considered the pendency of the

Originating Summons filed by the Petitioners in this Court

which is also relied upon by the Petitioners in this Court. This

Court, accordingly, held that the Petitioners are not in a

position to take any decision whether to redevelop the writ

property or not, in view of the pendency of Originating

Summons for seeking direction/opinion of this Court in

respect of interpretation of such clauses of the said Will

before this Court. This Court in the said judgment held that

since the Petitioners did not show whether they were entitled

Tikam page 18 of 21

WP 2284 of 2018.doc

to redevelop the writ property till date, the petitioners cannot

be allowed to take a stand that they were not granted any

reasonable time to submit a proposal for redevelopment.

37. Mr. Damle, learned Senior Counsel for the

Petitioners, has not distinguished the said judgment delivered

by this Court in case of Petitioners themselves dismissing the

said Writ Petition on the similar contents raised in the said

writ petition. In our view, the judgment of this Court in case

of A.H. Wadia Trust (supra) passed in Writ Petition No.

1347 of 2019 is clearly applicable to the facts of this Case. We

do not propose to take any different view in the present

matter.

38. The Supreme Court in the case of M/s. Dharampal

Satyapal Ltd. (supra) has held that principles of natural

justice are very flexible principles and canot be applied in

any straight-jacket formula. It all depends upon the kind of

functions performed and to the extent which a person is

likely to be affected. The principles laid down by the Supreme

Court in case of M/s. Dharampal Satyapal Ltd. (supra)

would not apply to the facts of the present case.

39. In paragraph 36 of the said judgment it is held by

Tikam page 19 of 21

WP 2284 of 2018.doc

the Supreme Court that even when we find that there is an

infraction of principles of natural justice, the Court has to

address a further question as to whether any purpose would

be served in remitting the case to the authority to make

fresh demand of amount recoverable, only after issuing notice

to show cause to the appellant. The Supreme Court held

that such an exercise would be totally futile .

40. In so far as the judgment of the Supreme Court in

case of Prabin Ram Phukan and Anr. (supra.), relied by

Mr. Damale, Learned Senior Counsel for the Petitioners is

concerned, it is held by the Supreme Court that no person

can be deprived by State without strictly following procedure

laid down by the Hon'ble Supreme Court. Since the Petitioner

are not in position of submitting any scheme even at this stage

for redevelopment, the said judgment would not assist the

case of the Petitioners.

41. In so far as the judgment of the Supreme Court in

the case of Municipal Corporation of Greater Mumbai

(supra) is concerned, there is no dispute upon preposition of

law that if a statute requires a thing to be done in a particular

manner, it should be done in that manner or not at all. The

Tikam page 20 of 21

WP 2284 of 2018.doc

said judgment would not advance the case of the Petitioners

on the ground that even if this Court accepted the

submissions of the Petitioners that notice was not issued

upon the Petitioners as prescribed in law, since Petitioners

could not have submitted a scheme for redevelopment, the

judgment of the Supreme Court in the case of Municipal

Corporation of Greater Mumbai Vs. Abhilash Lal and

Ors. (supra) would not assist the case of the Petitioners in

this petition.

42. In our view, no case is made out for interference to

quash and set aside the Impugned Notification and for

quashing and setting aside the impugned orders. We,

accordingly, pass the following order.

ORDER

(i) Writ Petition No. 2284 of 2018 is dismissed.

(ii) There shall be no order as to the costs.

(M.M. SATHAYE, J.)                                 ( R.D.DHANUKA, J. )




Tikam                                                              page 21 of 21