Bombay High Court
Ramesh Swaminath Singh vs The Slum Rehabilitation Authority And 6 ... on 9 August, 2024
Author: M S Sonak
Bench: M. S. Sonak
Digitally signed Ramesh Swaminath Singh v The Slum
by LAXMIKANT
2024:BHC-OS:12009-DB
LAXMIKANT GOPAL Rehabilitation Authority and ors. & Babu Mumtazali
GOPAL CHANDAN Choudhary Vs The State of Maharashtra & ors.
CHANDAN Date: (Judgment) WP-1060.24 &1127.24.docx
2024.08.09
17:06:27 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1060 OF 2024
1. Ramesh Swaminath Singh,
Age 45 years, Occupation Service
Hindu adult, Indian Inhabitant of
Mumbai
Residing at Singh Niwas, Kokani Pada,
Kurar Village, Malad (E),
Mumbai-400 097.
Mobile No.9920200126.
Email [email protected] ...Petitioner
~ versus ~
1. The Slum Rehabilitation
Authority,
Having address at SRA Building,
Anant Kanekar Marg, Bandra (East),
Mumbai 400 051.
2. The Chief Executive
Officer,
Slum Rehabilitation Authority,
S.R.A. Building, Anant Kanekar Marg,
Bandra (E), Mumbai-400 051.
3. The Executive Engineer
(SRA),
Having address at SRA Building,
Anant Kanekar Marg, Bandra (East),
Mumbai 400051.
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Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
4. City Survey Office, Malad
Through State Government
of Maharashtra,
Address at Administrative Building
5th floor, Dr. N.R. Karode Marg
Natakwala Lane, S. V. Road, Borivali
(West), Mumbai-400 092
5. The Mumbai Municipal
Corporation,
Having address at Mahapalika Bhawan
Mahapalika Marg, Fort,
Mumbai 400001
6. The Municipal
Commissioner,
Mumbai Municipal Corporation
Having address at Mahapalika Bhawan
Mahapalika Marg, Fort,
Mumbai 400001
7. M/s. Cosmic Developers,
A Partnership firm registered under the
Indian Partnership Act, 1932 through
Its partner Mr. Mr. Musa M. Shaikh &
Mr. Naeem N. Shamsi, having address
Ground Floor, A-002, Hill Park, Kurar
Village, Kokanipada, Malad (East),
Mumbai - 400 097.
8. Kokanipada Sra Chs,
CTS No.738/B/1/A, 741 and 746
opp. Triveni Nagar Malad (East)
Mumbai - 400 097 through Mr. Ratik
Mamdani. ...Respondents
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Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
WITH
INTERIM APPLICATION NO. 984 OF 2023
IN
WRIT PETITION NO. 1060 OF 2024
1. Kokanipada Sra Co-
operative Housing Society,
Having its address at, CTS
No.738/B/1/A, 741 and 746, Opp.
Triveni Nagar, Malad (East),
Mumbai - 400097
Through Authorised person ...Applicant/
Mr. Ratik Mohammed Mamdani Intervenor
~ in the matter between ~
1. Ramesh Swaminath Singh,
Age 65 years, Occupation Service
Hindu Adult Indian Inhabitant of
Mumbai
Residing at Singh Niwas, Kokani Pada,
Kurar Village, Malad (E),
Mumbai 400097 ...Petitioner
~ versus ~
1. The Slum Rehabilitation
Authority,
Having address at SRA Building
Anant Kanekar Marg, Bandra East
Mumbai 4000 51
2. The Chief Executive
Officer,
Slum Rehabilitation Authority,
S.R.A. Building, Anant Kanekar Marg,
Bandra East, Mumbai 4000 51
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Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
3. The Executive Engineer
(SRA),
Having its address at S.R.A. Building
Anant Kanekar Marg, Bandra East
Mumbai 4000 51
4. City Survey Office, Malad
Through State Government
of Maharashtra,
Address at Administrative Building
5th Floor, Dr. N.R. Karode Marg
Natakwala Lane, S. V. Road, Borivali
(West), Mumbai 4000 92
5. Mumbai Municipal
Corporation,
Having its address at Mahapalika
Bhawan
Mahapalika Marg, Fort,
Mumbai 40000 1
6. The Municipal
Commissioner,
Mumbai Municipal Corporation
Having its address at Mahapalika
Bhawan
Mahapalika Marg, Fort,
Mumbai 40000 1
7. M/s. Cosmic Developers,
A Partnership firm registered under the
Indian Partnership Act, 1932 through
Its partner Mr. Musa M. Shaikh and
Mr. Naeem N. Shamsi having its
address at Ground floor, A-002, Hill
Park, Kurar Village, Konkanipada,
Malad (East),
Mumbai 4000 97 ...Respondents
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Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
WITH
WRIT PETITION NO. 1127 OF 2024
1. Babu Mumtazali Choudhary,
Aged 79 years, Occ. : Business,
Adult, Mumbai Inhabitant, Residing at
Flat No.105, first floor,
Noor Castle Apartments, Noorani
Masjid, Pathanwadi, Malad (East),
Mumbai - 400097. ...Petitioner
~ versus ~
1. The State Of Maharashtra,
Through the Secretary, Housing
Department, Hutatma Rajguru Chowk,
Madam Kama Marg, Mantralaya,
Mumbai - 400 032.
2. The Chief Executive
Officer,
Slum Rehabilitation Authority,
Having office at S.R.A. Building, Anant
Kanekar Marg, Bandra (East),
Mumbai-400 051.
3. Kokanipada Sra Co-op
Housing Society Ltd.,
Reg No.M.U.M./S.R.A./H.S.G./(T.C.)
/13347/2022, Office at C.T.S.
No.738B/1A, 741, & 746 of Village-
Malad (E), Taluka Borivali MSD
Mumbai situated at Kokani Pada, Kurar
Village, Malad (E),
Mumbai - 400 097.
Correspondence address at 002,
Ground Floor, Hill Park Apartment,
Omkar Co-op HGS Ltd, Kokanipada,
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Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
Kurar Village, Malad (East),
Mumbai-400097, ...Respondents
A PPEARANCES
for the petitioner Mr Pradeep Thorat, a/w Mr Aniesh
in wp/1060/2024 Jadhav i/b Mr Pushparaj Singh.
for the petitioner Mr Yashodeep Deshmukh, i/b Mr
in wp/1127/2024 Akhilesh M Yadav.
for respondent Dr Milind Sathe, Senior Advocate
nos.1 to 3-sra in a/w Mrs P H Kantharia.
wp/1060/2024
for respondent Mr Jagdish G Reddy.
no.2-sra in
wp/1127/2024
for respondent- Ms Sheetal Malvankar, AGP.
state in wp/1060/2024
for respondent- Mr Suraj Gupte, AGP.
state in wp/1127/2024
for respondent-bmc Ms Komal Kandharkar (through
in both writ VC), a/w Mrs S Tondwalkar.
petitions
for respondent no.7 Mr Mayur Khandeparkar, i/b Mr
in wp/1060/2024 Aadil Mirza.
for respondent no.8 Mr Amogh Singh, a/w Mr Jeet
in wp/1060/2024 Gandhi, Mr Rahul Arora, Mr
Akash Gupta i/b Mr Uttam
Rane.
Present Mr Swapnil Gund, Sub-Engineer,
P/North ward.
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Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
CORAM : M. S. Sonak &
Kamal Khata, JJ.
RESERVED ON : 31 July 2024
PRONOUNCED ON : 09 August 2024
JUDGMENT (Per M S Sonak J):
-
1. Rule in both these Petitions. The Rule is made returnable
immediately with the consent of the learned counsel for the parties.
2. Heard learned counsel for the parties. Learned counsel for
the parties agree that both these Petitions can be disposed of by a
common judgment and order.
3. Writ Petition No.1060 of 2024 concerns Petitioner's
property measuring 440 sq. mtrs, surveyed under No.273, Hissa
No.1 (Part), CTS No.738B/1A of village Malad (E), Taluka
Borivali, Mumbai Suburban District, Mumbai along with ten
assessed structures at Singh Niwas, Kokani Pada, Kurar Village,
Malad (E), Mumbai 400097. Writ Petition No.1127 of 2024
concerns Petitioner's property measuring 279 sq. mtrs surveyed
under No.273, Hissa No.1 (Part), CTS No.738-B/1A Part of village
Malada, Taluka Borivali, Mumbai Suburban District, Mumbai,
locally known as Kokanipada, Kurar Village, Malad (East), Mumbai
400097 (Collectively referred as "the said property")
4. The Petitioner in Writ Petition No.1060 of 2024 challenges
Order dated 13 April 2016 made under Section 3C(1) of the
Maharashtra Slum Areas (Improvements, Clearance and
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
Redevelopment) Act, 1971 ("the Slum Act"); Order dated 30
August 2019 made under Section 14(1) of the Slum Act;
Notification dated 30 June 2020 and Order dated 26 July 2022
made under Section 17 of the Slum Act, to the extent these orders
affect the Petitioner's said property. Similarly, the Petitioner, in
Writ Petition No.1127 of 2024, challenges the Notification dated 30
June 2020 published in the official gazette dated 09 July 2020
under Section 14 of the Slum Act to the extent it affects the
Petitioner's said property.
5. Mr Pradeep Thorat, learned counsel for the Petitioner in
Writ Petition No.1060 of 2024, submitted that neither the
Petitioner's name nor the description of the said property was
included in the notices issued under Section 3C or Section 14 of
the Slum Act. However, for the first time, the Petitioner's name
and the Petitioner's said property were included in the notice dated
26 July 2022 issued under Section 17 of the Slum Act calling upon
the Petitioner to accept compensation towards the acquisition of
the Petitioner's said property.
6. Mr. Thorat submitted that the Petitioner's said property, up
to this stage, was never a part of the acquisition proceedings
undertaken by the Slum Rehabilitation Authority ("the SRA") or
the State Government. He submitted that without following the
acquisition process or without including the Petitioner's name or
the said property in the acquisition process, neither can any
compensation be forced upon the Petitioner nor can the
Petitioner's said property be treated as acquired under the
provisions of Section 14 of the Slum Act. He, therefore, submitted
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
that the impugned orders and the notification made under Sections
14 and 17 of the Slum Act are arbitrary, ultra vires, null and void.
7. Mr Thorat submitted that such a completely flawed
acquisition or attempted acquisition was, at the instance of the
developer, developing a slum rehabilitation scheme. He submitted
this acquisition had no real nexus with the construction of the slum
redevelopment buildings but this so-called acquisition was only to
widen the DP Road. However, instead of resorting to provisions of
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013. ("2013
Acquisition Act") or applying the provisions of Development
Control Regulations for the acquisition of the Petitioner's said
property, an attempt was made to unlawfully acquire the
Petitioner's said property by resorting to the provisions of the Slum
Act. Mr. Thorat submitted that even this attempt was contrary to
law inasmuch as there were no acquisition proceedings initiated
against the Petitioner's said property, but the Petitioner's said
property was sought to be included in the notice under Section 17
of the Slum Act for the first time when the previous notices under
Section 3(C) or Section 14 of the Slum Act neither referred to the
Petitioner nor the Petitioner's said property.
8. Mr. Thorat submitted that the BMC, in its Affidavit in Reply,
has pleaded that the Petitioner's five structures had to be
demolished to widen the DP Road. Therefore, by a subterfuge, the
Petitioner's said property was sought to be included in the
acquisition proceedings at the stage of issuance of notice under
Section 17 of the Slum Act to determine the quantum of
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
compensation. He submitted that for all the crucial stages before
this stage, admittedly, neither was the Petitioner's name nor the
Petitioner's said property even referred to in the notices and the
notification issued under the Slum Act. He, therefore, submitted
that the action was affected by legal malafides and warrants
interference with the impugned orders and notifications.
9. Mr Thorat submitted that the provisions for the acquisition
of property have to be strictly construed. He submitted that notice
to a land owner or a person interested is mandatory, and any
attempted acquisition without such notice is unfair and violative of
Article 300A of the Constitution of India. He submitted that under
the scheme of the Slum Act, the first opportunity to undertake a
slum redevelopment scheme has to be offered to the landlord. Only
upon failure to do so can the State Government proceed to acquire
the property on the recommendation of the SRA. He submitted
that the procedure adopted by the Respondents in the present case
blatantly violates the law in the Indian Cork Mills Private
Limited, A limited company Vs. State of Maharashtra through
its Housing Department and others 1 and Yogesh Chandulal
Mehta and anr. Vs The State of Maharashtra and ors 2.
10. Mr. Yashodeep Deshmukh, learned counsel for the
Petitioner in Writ Petition No.1127 of 2024, adopted Mr. Thorat's
submissions. He also submitted that the Petitioner's property was
not even affected by the DP Road, and therefore, the attempted
flawed acquisition was affected by legal malafides.
(2018) 4 Bom CR 618
2023 SCC OnLine Bom 822
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
11. Mr. Deshmukh submitted that until the last moment, neither
the Petitioner's name nor the Petitioner's said property was
included in any of the notices or notifications during the acquisition
process. Only in the final notification, or rather the notice under
Section 17 of the Slum Act, some paltry compensation was offered
to the Petitioner, and an attempt was made to acquire the
Petitioner's said property.
12. Mr Deshmukh submitted that this Court granted interim
relief in both the Petitions and that the Respondents were
restrained from taking possession of the said properties from the
Petitioners. He submitted that neither the procedure prescribed
under the Slum Act nor the rulings of this Court were followed in
the attempt to acquire the Petitioner's said property. He, therefore,
submitted that the impugned notices/notifications/orders should
be set aside.
13. Mr Thorat and Mr Deshmukh submitted that the impugned
notices/notifications/orders should be set aside for all the above
reasons.
14. Dr Milind Sathe learned Senior Counsel for the Respondent
- SRA in both these Petitions, submitted that the notices and the
survey plans had included the Petitioners' properties in the notices
and notification concerning the acquisition. He, however,
submitted that the Petitioners' names could not be reflected in the
initial notices and notification because the Petitioners' names were
included in the property card on 01 December 2016 and 09 January
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
2017, respectively, which was much after the notices dated 12
February 2016 or 18 May 2016 were issued under the provisions of
the Slum Act. He submitted that since the Petitioners had not
bothered to get their names included in the property cards, neither
the SRA nor the State Government could be faulted for not
including the Petitioners names in the impugned notices or
notification for acquisition of their properties under the Slum Act.
15. Dr Sathe submitted that after the Petitioners' names were
entered into the property cards on 01 December 2016 and 09
January 2017, respectively, the authorities deemed it appropriate to
pay/offer compensation to the Petitioners because it is the
Petitioners' properties that were being acquired under the Slum
Act. He submitted that the Petitioners, who failed to take any steps
to get their names included in the property cards within a
reasonable period, cannot now complain about their non-inclusion
in the notices and notifications leading to the acquisition of their
properties. Dr. Sathe submitted that there was no breach of the
procedure under the Slum Act or of Article 300A of the
Constitution of India because the authorities had fairly offered and
were willing to pay compensation to both the Petitioners towards
acquiring their properties.
16. Dr. Sathe relied on the judgment of this Court in Sakinaben
Fakir Mohammed Sayani and others Vs. State of Maharashtra
and others3 to submit that under almost similar circumstances, no
relief was granted to the land owners who had failed to take steps to
2015 SCC OnLine Bom 6591
09 August 2024
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Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
get their names included in the property cards within a reasonable
period.
17. Dr Sathe submitted that Section 3C of the Slum Act, as it
stood before the 2018 Amendment, did not even contemplate the
issue of any notice to the landowners. Such a requirement was
introduced only after 2018. Therefore, the orders issued in 2016
under Section 3C of the Slum Act cannot be faulted for want of
notices to the Petitioners. He relied on the judgment of the
Supreme Court in Kantabai Vasant Ahir and others Vs. Slum
Rehabilitation Authority and others4 to support this contention.
He also submitted that the decisions Mr Thorat relied upon were
distinguishable on facts, and based on those facts, no relief was due
to the Petitioners.
18. For all the above reasons, Dr. Sathe submitted that these
Petitions may be dismissed and interim relief may be vacated.
19. Mr. Khandeparkar, learned counsel for the Respondent-
Developer, submitted that the redevelopment project had advanced
substantially. If the acquisition of 1050 sq. mtrs. is interfered with
at this stage, the same will affect the further progress of the
redevelopment scheme. He submitted that by setting aside the
acquisition, it was not as if the Petitioners would get any additional
compensation by insisting upon resorting to acquisition under the
2013 Acquisition Act or the DP Regulations. He submitted that the
Slum Act was a self-contained code, and its provisions would
(2019 10 SCC 194
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
always override the provisions of the 2013 Acquisition Act or the
DP Regulations.
20. Mr. Khandeparkar submitted that these Petitions were
barred by laches because at least the Petitioner in Writ Petition
No.1060 of 2024 was challenging the declaration under Section 3C
of the Slum Act issued on 13 April 2014 by instituting this Petition
on 04 November 2022. He submitted that there was no explanation
for this inordinate delay, and therefore, this Petition should be
dismissed on the grounds of unexplained and inordinate delay and
laches.
21. Mr. Khandeparkar submitted that, in any event, the
Petitioners had the remedy of Appeal under Section 3C(2) of the
Slum Act to question an order under Section 3C(1) of the Slum
Act. He submitted that even factually, the circumstances sufficient
to declare the area a slum rehabilitation area clearly existed at the
site. He pointed out that in 1986, this area was declared a slum
area, and there was never any challenge to all this.
22. Mr. Khandeparkar submitted that there was no infirmity in
the acquisition. Assuming there were any slight irregularities
involved, the writ jurisdiction ought not to be exercised considering
that the redevelopment scheme had advanced substantially and
Petitioners' gains were not comparable to the prejudice the
developer and, consequently, the slum dwellers would face, in case
the orders under Section 3C or the acquisition was set aside.
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
23. Mr Amogh Singh, learned counsel for the Respondent--
Society of Slum Dwellers--adopted Dr Sathe's and Mr
Khandeparkar's arguments. He submitted that the slum dwellers
would be prejudiced if the acquisition was interfered with at this
stage.
24. In rejoinder, Mr. Thorat and Mr. Deshmukh submitted why
the decisions relied upon by the learned counsel for the
Respondents were distinguishable. Mr Thorat relied on IDBI
Trusteeship Services Limited vs District Collector, Pune and
ors.5 to submit that since the Petitioners had purchased the
properties by registered documents, the law cast no further
obligation on them to correct the property cards.
25. Mr Thorat submitted that the notices and the notification
referred to 4 property holders owning distinct plots from the total
property measuring over 46000 sq. mtrs. He submitted that under
such circumstances, the Petitioners had no reason to suspect that
their properties were included within the area of 1050 sq. mtrs,
even though the names of 4 other persons were set out in the
notices and the notification.
26. Mr Thorat submitted that ultimately, the properties of the
persons whose names were included in the impugned
notices/notification were not acquired, and only the Petitioners'
said properties are sought to be acquired by forcing some
compensation on them, even though they were neither notified nor
granted any opportunity as contemplated by law before any
AIR 2021 Bombay 318
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
purported acquisition. He submitted that until the issuance of
impugned notice under Section 17 of the Slum Act determining and
offering compensation, even the Respondents had not
contemplated the acquisition of the Petitioners' properties. Only
because the BMC pointed out that the Petitioner's five structures
would require demolition for the widening of DP Road that at the
last movement, the notices were issued to the Petitioners offering
compensation even without acquiring the Petitioners' properties
following the law.
27. Mr Thorat and Mr Deshmukh submitted that this
acquisition had nothing to do with the slum redevelopment scheme
and that this was an attempt to deny the petitioners compensation
under the 2013 Act or DP regulations. They submitted that the
project would not be delayed if this acquisition was struck down.
On the above grounds, they submitted that the Rule is liable to be
made absolute in both these Petitions.
28. The rival contentions now fall for our determination.
29. The property bearing CTS No.738 is a large property
measuring 46868.50 sq. mtrs. ("the larger property"). The
impugned and alleged acquisition concerns only 1050 sq. mtrs.
from this larger property. This being so, the SRA had to identify
the acquired portion with some reasonable precision so that the
persons interested would have a fair idea that it was their portion
that was contemplated to be acquired. In these matters, the records
show that there was no reference to the petitioners or their
properties in the impugned notices and orders by which their
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
properties are supposed to have been acquired. Only at the final
stage were the petitioners issued notices offering them
compensation and threatening to take over their properties. By
interim orders made on 24 January 2023 and 1 February 2023 inter
alia restraining the petitioners' dispossession.
30. At one point, this larger property, measuring 46868.50 sq.
mtrs, was entirely owned by F. E. Dinshaw and Nusli Wadia.
However, portions of this property were transferred and re-
transferred from time to time. This is evident from the various
entries in the property cards placed by the Petitioners on record
(See Exhibit-A on pages 51 to 54 in Writ Petition No.1060 of 2024).
31. The record in Writ Petition No.1060 of 2024 shows that the
Petitioner's father, Swaminath Singh, purchased a portion of the
larger property admeasuring 440 sq. mtrs along with the structures
therein from Noormohammed Shaikh vide a registered sale deed
dated 15 January 1974. Similarly, in Writ Petition No.1127 of 2024,
the Petitioner purchased a portion of the larger property measuring
279 sq. mtrs from Noormohammed Shaikh vide a registered sale
deed dated 04 May 1974. Thus, there is no dispute about the
Petitioners owning the distinct portions of 440 sq. mtrs and 279 sq.
mtrs. from out of the larger property measuring 46868.50 sq. mtrs.
based on registered conveyances.
32. On 12 February 2016, the SRA issued a public notice
declaring the properties described in the notice as slum
rehabilitation areas under Section 3C of the Slum Act. This public
notice is on page 394 of the paper book in Writ Petition No.1060 of
09 August 2024
Ramesh Swaminath Singh v The Slum
Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
(Judgment) WP-1060.24 &1127.24.docx
2024. The SRA's public notice dated 12 February 2016 states that
the application was received from the Chairman of Kokani Pada
Co-op Housing Society (Proposed) requesting to declare the area
of land bearing C.T.S. No.738/B/1A (Pt.) of Village - Malad,
Taluka-Borivali for Slum Rehabilitation Scheme of the said Society
as "Slum Rehabilitation Area" under Section 3C (1) of the Slum
Act.
33. The public notice also states that "the applicant, along with its
application, has submitted the document in respect of the property as
mentioned below, the particulars whereof are as under :-
Sr. No. C.T.S. No. As per Property Card Owner
1 738/B/1A (pt) Holder :-
1) Miss. Bachubai Voronzov Dashukov
2) Mr. Nasali Nevil Vadiya
3) Administrator of Hadalji Dinshaw
Holder :-
Miss. Chandrakala Dayashankar Singh
Holder :-
Sapna Trading Corporation
Holder :-
M/s. New Ajmera Construction And
Developers
The particulars of area proposed to be declared as Slum Rehabilitation Area.
Sr. Village & Area as per Area to be Boundaries of S.R.
No. C.T.S. No. property declared as
card "Slum
(sq.mtr.) Rehabilitation
Area" East West North South
(sq.mtr.)
(1) (2) (3) (4) (5) (6) (7) (8)
1. Village- 46868.5 950.50 C.T.S. C.T.S. C.T.S. C.T.S.
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Rehabilitation Authority and ors. & Babu Mumtazali
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Malad 738/B/1A 741 738(B) 738/B1
Taluka- (pt) 3 A/4C
Borivali
738/B/1/A
Total Area 46868.5 950.50 Sq.Mt.
Sq.Mt.
34. The public notice dated 12 February 2016 informs the land
owners or any others who claim to have any right, title, and interest
(if any) that they could object to the declaration of the property
measuring 950.50 sq. mtrs as a slum rehabilitation area within ten
days from the publication of this notice.
35. The public notice dated 12 February 2016 nowhere refers to
the properties held by the two Petitioners. Instead, it refers to the
properties held by Miss Bachubai Voronzov Dashukov, Mr. Nasali
Nevil Vadiya, and the Administrator of Hadalji Dinshaw. The
public notice also refers to the properties distinctly held by Ms
Chandrakala Dayashankar Singh, Sapna Trading Corporation, and
M/s. New Ajmera Construction and Developers. From the recitals
in the public notice, it appears that the SRA has gone by the
information furnished by the "applicant", i.e. Chairman of Kokani
Pada Co-op Housing Society (Proposed), without any independent
application of mind.
36. The property card on pages 51 to 54 of the paper book in
Writ Petition No.1060 of 2024 is extremely relevant and was relied
on by the learned counsel for the Petitioners and the Respondents
exhaustively. This property card refers to the property/portion
measuring 460 sq. mtrs held by Smt. Chandrakala Dayashankar
Singh, the property/portion measuring 1225 sq. mtrs. held by
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Sapna Trading Corporation and the property/portion measuring
3387.5 sq. mtrs. held by New Ajmera Construction and Developers.
37. Given the above position, the contention that as of 12
February 2016, only the four names referred to in the notice dated
12 February 2016 were reflected in the property card is incorrect.
Several names are included in the property card, indicating the
extent of holdings of such holders. Still, the public notice dated 12
February 2016 refers only to the above names of holders having
distinct portions of the larger property. From the notice, there was
no reason for the two Petitioners even to suspect that the portions
of the larger property held by them or acquired by them through
the registered conveyances were sought to be included in the
acquisition process. Very clearly, therefore, the public notice dated
12 February 2016 did not refer to the Petitioners or the Petitioners'
said properties. Instead, the public notice referred to the
properties/portions held by the persons named in the said public
notice and not the others like the petitioners.
38. Dr. Sathe tried to contend that such public notices are
usually based on survey or acquisition plans. He referred to one
plan to contend that the public notice should be read along with
such a plan, and when so read, the Petitioners' said properties
could also be seen as included. This is, with respect, a tenuous
contention backed by no credible material on record. Neither any
pleadings nor any documents back such a contention.
39. The public notice dated 12 February 2016 refers to no survey
or acquisition plans. The pleadings on behalf of the SRA also refer
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Choudhary Vs The State of Maharashtra & ors.
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to no such plans in clear terms. Even the plan shown to us does not
clearly refer to the Petitioners' said properties. Therefore, the
SRA's insistence that the public notice dated 12 February 2016
included the Petitioners' said properties but not the Petitioners'
names because the Petitioners' names were not entered on the
property cards by 12 February 2016 is a defence that cannot be so
easily accepted in the facts of the present case. Rather, the SRA
appears to be taking advantage of the fact that the Petitioners'
names were entered into the property cards on 01 December 2016
and 09 January 2017, respectively, i.e. within a few days of the
SRA's public notice dated 12 February 2016 even though the major
portion of the acquisition process was after the inclusion of
petitioners' names.
40. The SRA published yet another public notice on 18 May
2016 to enhance the area of 950 sq. mtrs, which was earlier sought
to be declared as a slum rehabilitation area, to 1050 sq. mtrs. The
contents of the notices dated 12 February 2016 and 18 May 2016
are substantially the same, except that the notice dated 18 May
2016 refers to the area of 1050 sq. mtrs. In the column concerning
the names of the owners/Imala Malak, the same names as appeared
in the public notice dated 12 February 2016 have been shown.
Again, from the notice dated 18 May 2016, it is impossible to
conclude that the Petitioners' said properties were included or
even intended to be included for acquisition under Section 14 of the
Slum Act. The petitioners' names are admittedly not included even
in this notice.
09 August 2024
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Rehabilitation Authority and ors. & Babu Mumtazali
Choudhary Vs The State of Maharashtra & ors.
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41. The Petitioners have placed on record a report made by the
Chief Executive Officer, SRA, on 30 August 2019 dealing with
objections raised by some of the parties shown in the public notices
dated 12 February 2016 and 18 May 2016. The report shows that
one of the objectors withdrew the objection, and the other objector,
i.e. New Ajmera Constructions and Developers, pressed the
objection. However, such objections were rejected by the vague
reasoning that the property held by New Ajmera Constructions and
Developers was not the subject matter of acquisition. Even this
report does not say that it was the petitioners' said properties that
were the subject matter of acquisition. By this time, admittedly, the
petitioners' names were very much recorded on the property card.
The excuse about the late recording of the petitioners' names in the
property card was clearly unavailable when this report was made on
30 August 2019.
42. By the time the Chief Executive Officer of SRA made his
report dated 30 August 2019, the Petitioners' names had been
included in the property cards. The Petitioners' names were, in
fact, included in the property cards on 01 December 2016 and 09
January 2017. After observing that the property held by New
Ajmera Constructions and Developers was not being acquired, the
Chief Executive Officer, SRA, did not take cognisance of the
Petitioners' names in the property cards and did not bother to issue
any notices to the Petitioners, if the Petitioners' said properties
were really included or intended to be included in the property
described in the public notices dated 12 February 2016 and 18 May
2016. This would have been the most natural and reasonable
manner of proceeding with the acquisition.
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43. Based on the Chief Executive Officer, SRA's report dated 30
August 2019, the State Government made the order dated 30 June
2020 published in the official gazette dated 09 July 2020 under
Section 14 of the Slum Act for acquiring the property which was
the subject matter of the notices dated 12 February 2016 and 18
May 2016. Even this notification, dated 30 June 2020, refers to the
same names as appeared in the two notices dated 12 February 2016
and 18 May 2016. This was after the CEO, SRA's report dated 30
August 2019, had recorded the properties of Chandrakala
Dayashankar Singh, Sapna Trading Corporation or M/s. New
Ajmera Construction and Developers were not included in the
acquisition. This was also admittedly after the petitioners' names
were included in the property cards, and this excuse was no longer
available to the authorities.
44. Again, if the two notices had indeed referred to the
Petitioners' said properties, then most reasonably and naturally,
one would have expected this position to be cleared in the Chief
Executive Officer, SRA's report dated 30 August 2019, by which
time the names of both the Petitioners had been entered into the
property cards. Similarly, the Chief Executive Officer of SRA
would have recommended to the State Government to include the
Petitioners' names in the final acquisition notification dated 30
June 2020 so that there would be no confusion or lack of clarity
about which land or whose land was being acquired. Surprisingly,
even the government's acquisition order dated 30 June 2020 does
not refer to the Petitioners' names and, consequently, the
Petitioners' said properties as the subject matter of the acquisition.
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Rehabilitation Authority and ors. & Babu Mumtazali
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45. After almost two years, the Chief Executive Officer, SRA,
again, without even bothering to hear any of the Petitioners by
presuming that the Petitioners' said properties were included in the
notices dated 12 February 2016 and 18 May 2016, order dated 30
August 2019 and the Government's Notification dated 30 June
2020 (even though none of these documents referred to either the
Petitioners or their said properties) has proceeded to determine the
compensation of Rs.14,26,794/- as payable to the Petitioner in Writ
Petition No.1060 of 2024 and compensation of Rs.9,04,717/- as
payable to the Petitioner in Writ Petition No.1127 of 2024. Based
on this notice dated 26 July 2022, the Respondents contend that
the Petitioners' properties were acquired in pursuance of the
notices dated 12 February 2016, 18 May 2016, and the orders dated
30 August 2019 and 30 June 2020, even though none of these
documents refer to the Petitioner or Petitioners' properties.
46. The Petitioner in Writ Petition No.1127 of 2024 rushed to
the Civil Court when based upon the Chief Executive Officer,
SRA's order dated 26 July 2022, he apprehended immediate
dispossession. Mr. Deshmukh, the learned counsel for the
Petitioner, submitted that this fact was pleaded in the Writ petition.
He explained that at that stage, the Petitioner in Writ Petition
No.1127 of 2024 had no inkling about the notices dated 12 February
2016, 18 May 2016 or the orders dated 30 August 2019 and 30 June
2020, which did not even refer to the Petitioner' names or their
said properties. After the Petitioners were apprised of these
documents, the present Petition was instituted after making full
disclosure.
09 August 2024
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Rehabilitation Authority and ors. & Babu Mumtazali
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47. The Petitioner in Writ Petition No.1127 of 2024 cannot be
faulted for rushing to the Civil Court based on the limited
information available to the Petitioner. This Petitioner has not
suppressed any facts but made full disclosure in the present
Petition. Therefore, the half-hearted contention that Writ petition
No.1127 of 2024 should not be entertained because of the suit
instituted by the Petitioner therein cannot be accepted in the facts
or present case.
48. Similarly, the developer's contention about delay or laches is
also misconceived. Only after the petitioners received the notice
dated 26 July 2022 could they be attributed with some knowledge
that their properties were sought to be acquired. The Petitioners
instituted their petitions on 28 September 2022 and 16 November
2022. As observed earlier, the notices neither referred to the
petitioners nor their properties. Therefore, there was no question
of delay or laches involved. Besides, this Court granted interim
relief on 24 January 2023 and 1 February 2023 inter alia,
restraining the authorities from taking over the possession of the
petitioners' properties. So, it was not as if the authorities
undertook any works pursuant to the impugned orders or changed
their position substantially or otherwise. There is no material to
suggest that the slum redevelopment scheme is suffering due to the
interim order made by this Court. The Petitioners have contended
that this exercise was nothing but an attempt to acquire Petitioners'
properties to widen the DP road. This attempted acquisition was
only to avoid payment of compensation under the 2013 Act or the
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DP regulations. Therefore, the objection based on any alleged delay
or laches cannot be sustained.
49. Dr Sathe explained that at the stage of determining the
compensation, it was realised that the Petitioners were the owners
of the properties, which were the subject matter of the acquisition
under notices dated 12 February 2016 and 18 May 2016. Therefore,
the compensation was determined and awarded favouring the two
Petitioners. He submitted that by 26 July 2022, the Petitioners'
names were already included in the property cards. As noted
earlier, the Petitioners' names were included in the property cards
on 01 December 2016 and 09 January 2017. After this, the Chief
Executive Officer of SRA made his report dated 30 August 2019
without taking any cognisance of the Petitioners' names on the
property cards. Similarly, based upon the Chief Executive Officer,
SRA's report dated 30 August 2019, the State Government made
its order dated 30 June 2020, again, without taking any cognisance
of the Petitioners' names in the property cards. Surprisingly, the
Chief Executive Officer, SRA, takes cognisance of the Petitioners'
names in the property cards only on 26 July 2022 and determines
compensation.
50. Mr Thorat and Mr Deshmukh are justified in submitting that
this last-minute switch was because the BMC informed the SRA
that demolishing the Petitioner's structures might be necessary for
widening the DP Road. Therefore, the entire procedure, which had
neither involved the Petitioners nor the Petitioners' said properties,
was sought to be downplayed. The order dated 26 July 2022
purports to create an impression that the Petitioners' said
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properties were the subject matter of the acquisition proceedings.
However, neither the Petitioners' names nor their properties were
referred to in the notices dated 12 February 2016 and 18 May 2016
or the Chief Executive Officer, SRA's report dated 30 August 2019,
and the State Government's order dated 30 June 2020.
51. The BMC has filed an Affidavit in this matter on 03 March
2023. Paragraph 7 of this Affidavit reads as follows:-
7) I say that in order to facilitate the sewer line
laying work in the Kurar Village the same work is
also undertaken and for the same work the S. P.
construction department of the MCGM is working.
In view of above it is very much essential to
shift/rehabilitation demolish the affected said 5
structures falling in the alignment of 18.30 m DP
Road, in order, to clear the bottleneck & missing
link of vital Road connectivity of Kurar area as
explained above. There is a time bound program for
the said work proposed by MCGM in large public
interest.
52. There was no coordination between the BMC and the SRA.
Therefore, the properties held by the persons whose names were
reflected in almost all the acquisition documents except the final
document dated 26 July 2022 were proposed to be acquired.
Possibly, at the last stage, a crude attempt was made to include the
Petitioners' said properties by determining the compensation
payable to the two Petitioners. The Respondents have adopted a
procedure not known to law. By adopting this procedure, the
Respondents, particularly the SRA and the State Government,
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have breached the principles of natural justice and fair play. They
have also breached the statutory requirement of issuing notices to
the landowners before acquiring their properties.
53. Several decisions have underscored the importance of
granting a land owner an opportunity to show cause why his or her
land should not be acquired. These are some of the few safeguards
a land owner has been provided under the various compulsory
acquisition legislations. The property right may no longer be a
fundamental right, but it is still accepted as a constitutional or
human right. Such right cannot be taken away by deviating from the
prescribed procedure or adopting an arbitrary procedure that
almost borders on subterfuge.
54. In N. Padmamma vs S. Ramkrishna Reddy6, the Hon'ble
Supreme Court held that property rights are human rights and
constitutional rights, and they cannot be taken away except in
accordance with the law. Article 300-A of the Constitution protects
such a right. The provisions of the Act seeking to divest such a
right, keeping in view the provisions of Article 300-A of the
Constitution of India, must be strictly construed.
55. The explanation about the Petitioners' names being included
in the property cards only on 01 December 2016 or 09 January 2017
would be understandable, provided the notices had referred to the
names of the predecessor-in-title of the Petitioners. Most of the
procedures undertaken by the Chief Executive Officer, SRA or the
State Government were after 01 December 2016 or 09 January
2008 SCC OnLine SC 953 : (2008) 15 SCC 517
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2017, when the Petitioners' names were already included in the
property cards. Still, the Petitioners and even their properties were
excluded from the acquisition procedure. Only when it came to
determining the compensation did the Chief Executive Officer of
SRA suddenly take cognisance of the property cards' entries and
declare that the Petitioners' said properties stand acquired and
offered to pay compensation for such alleged acquisition. Such a
procedure is contrary to the provisions of the Slum Act. Such a
procedure is contrary to the basic principles of natural justice and
fair play, which ought to inhere such a compulsory acquisition
process.
56. The decision of the Coordinate Bench in Sakinaben (supra)
is distinguishable because the fact situation in the said decision is
not comparable to the situation in the present case. Firstly, unlike
in the present case, it was only after the final notification under
Section 14 of the Slum Act issued on 01 September 2010 that the
Petitioners in Sakinaben (supra) got their names included in the
property card in December 2011. In the present case, the
Petitioners' names were included in the property card on 01
December 2016 and 09 January 2017, respectively. The impugned
order under Section 14(1) of the Slum Act was issued on 30 August
2019. The final notification was on 30 June 2020, i.e. almost three
years after the Petitioners' names were entered in the property
cards.
57. Secondly, unlike in the present case, the predecessor-in-title
of the Petitioners in Sakinaben (supra) was issued notices and
heard before the issuance of the impugned notification dated 01
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September 2010. There was no dispute that the Petitioners were
claiming title through M/s. Fazalbhoy Construction Co. and M/s.
Morinaga Traders. Both these parties were duly noticed and heard
before the impugned notification dated 01 September 2010 was
issued. All this is evident from a letter dated 20 June 2007
addressed by M/s. J. S. Anand and Associates on behalf of the
predecessor-in-title of the Petitioners referred to in paragraph 17 of
the judgment.
58. Similarly, the discussion in paragraph 18 shows that the
predecessor-in-title of the Petitioners filed their response to the
notices issued to them, filed written arguments opposing
acquisition proceedings and were heard before the impugned
notification dated 01 September 2010 was issued. In these
circumstances, the Coordinate Bench held that the Petitioners,
who had not bothered to correct the property records at any stage
before the notification dated 01 September 2010 was issued, could
have no grievance against the acquisition proceedings on the
ground of want of notice. Admittedly, the Petitioners do not claim
through Miss Chandrakala Dayashankar Singh, Sapna Trading
Corporation, and M/s New Ajmera Construction And Developers.
In the present case, the predecessor-in-title of the petitioners were
never noticed or heard in these acquisition proceedings. Therefore,
the decision in Sakinaben (supra) is clearly distinguishable on
facts.
59. Kantabai Ahir (supra) holds that prior notice under Section
3-C was not required before declaring any area as a slum
rehabilitation area in terms of the law as it stood before 26 April
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2018. However, the order declaring a slum rehabilitation area, i.e.
the slum rehabilitation order, had to be given "wide publicity in such
manner as may be specified by the slum rehabilitation authority". In
this case, the order under Section 3(C)(1) was made on 13 April
2016. This order did not refer to the Petitioners' names or the
Petitioners' said properties. In any event, in these Petitions, we do
not propose to entertain the Petitioners challenge to the slum
rehabilitation order dated 13 April 2016 made under Section 3(C)
(1) of the Slum Act because Section 3(C)(2) of the Slum Act had
provided that any person aggrieved by the slum rehabilitation order
may, within four weeks from the publication of such order, prefer
an appeal to the Special Tribunal and the decision of the Special
Tribunal shall be final. Therefore, we decline to set aside the slum
rehabilitation order dated 13 April 2016 in these Petitions, leaving it
open to the Petitioners to explore the possibility of challenging it.
60. However, our non-interference with the slum rehabilitation
order dated 13 April 2016 on the above ground is no bar to
interfering with the notification dated 30 June 2020 purporting to
acquire the Petitioners' said properties under Section 14 of the
Slum Act. Even after issuing the valid order under Section 3(C)(1)
of the Slum Act, legal and proper proceedings must be taken to
acquire the property, which is the subject matter of a slum
rehabilitation order. This procedure clearly contemplates notice to
the owners, particularly because the owners are to be granted the
opportunity to develop such property in the first instance.
61. Apart from the question of notice, the authorities must
properly identify and describe the property sought to be acquired
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under Section 14 of the Slum Act. In the present case, a perusal of
the notices dated 12 February 2016, 13 April 2016, and 18 May
2016, the CEO, SRA's order dated 30 August 2019, and the
notification dated 30 June 2020 neither refer to the Petitioners'
names nor the Petitioners' said properties. Only the notice dated
26 July 2022 determining the compensation refers to the
Petitioners' names. This is despite the Petitioners' names being
included in the property cards on 01 December 2016 and 09
January 2017, respectively. Based upon such serious omissions,
there is no question of acquiring the Petitioner's said properties or
proceeding on the premise that the Petitioner's said properties had
been acquired under the notification dated 30 June 2020.
62. Admittedly, in this case, the Petitioners purchased the said
properties under the registered conveyances. In IDBI Trusteeship
Services Limited (supra) the Coordinate Bench held that when a
transfer of immovable property is effected by way of a registered
instrument, a subsequent purchaser is said to have implied notice
of the same. Section 3 of the Transfer of Property Act of 1882
considers not only the actual notice but also implied notice by way
of a registered instrument, provided that the instrument is required
by law to be registered. Therefore, mere non-entering of the
encumbrances in the revenue records cannot be an excuse.
Moreover, the second proviso to Section 149 of the MLRC exempts
the obligation of reporting the acquisition of rights by a registered
instrument to the revenue authorities.
63. But even if the principle in the above ruling is not applied,
still, for the several reasons discussed above, the excuse about the
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absence of petitioners' names in the property card when the initial
or preliminary acquisition notices were issued cannot be accepted.
This is a case where most of the crucial processes were after the
inclusion. Even the preliminary notices did not refer to petitioners'
properties but some other properties. The names of other property
owners (but not the petitioners' names) were included in such
preliminary and final notices. The petitioners' names were only
included for the very first time in the notice determining
compensation.
64. This is not how the authorities can attempt to acquire its
citizens' properties compulsorily. The compulsory acquisition of
properties, even under the Slum Act, is a serious matter,
particularly since property owners are made to part with their
properties for compensation, which is much less than the
compensation offered under the 2013 Act or DP Regulations.
Besides, in such a case, the property owners are to be divested of
their property to facilitate a slum redevelopment allegedly.
Therefore, compulsory acquisition, in such cases, cannot be lightly
resorted to, and certainly not by disregarding the safeguards that
the law prescribes.
65. In Bishop John Rodrigues Vs. State of Maharashtra
Through its Principal Secretary and others7 the Coordinate
Bench of this Court has held that when valuable private rights as
guaranteed under Article 300A of the Constitution to an owner of
the land are being deprived under the garb of slum rehabilitation,
there has to be an insurmountable situation on record of the SRA
2024 SCC OnLine Bom 1632
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or for any reasonable body of persons to come to an unimpeachable
conclusion that the only and only remedy and/or avenue in a given
case is to acquire the private land and not to permit the owner of
the land to undertake the development. The CEO of SRA has an
onerous obligation to reasonably, non-arbitrarily, and objectively
deal with the valuable property rights of private citizens who are
dragged into such a situation that the monsters of encroachment
and persons supporting them take the rule of law in their hands in
depriving the land owner of his property right. They forget that
there is a rule of law and there are courts and any such attempt to
dent the rule of law can be dealt with iron hands.
66. For all the above reasons, we quash and set aside the orders
dated 30 August 2019, the notification dated 30 June 2020 made
under Section 14 of the Slum Act and the order dated 26 July 2022
made under Section 17 of the Slum Act to the extent these orders
affect the Petitioners and the Petitioners' said properties (as
described in paragraph 4 of this Judgment and Order).
67. The rule is made absolute in the above terms, and the interim
orders are hereby confirmed. There shall be no orders for costs.
68. In view of disposal of Writ Petitions, Interim Application
No.984 of 2023 does not survive and the same is accordingly
disposed of.
(Kamal Khata, J) (M. S. Sonak, J)
09 August 2024
