Bombay High Court
The Juhu Vile Parle Development ... vs Bombay Slum Redevelopment Corporaton ... on 7 March, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-OS:3903-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2016 OF 2024
Bombay Slum Redevelopment Corporation ]
Pvt. Ltd., A Company incorporated under the ]
Provisions of Companies Act, 1956 ]
Having its Registered Office at 707, ]
Trade Centre, Bandra Kurla Complex, ]
Bandra, Mumbai. ] ... Petitioners
V/s.
1. Mumbai Housing & Area Development ]
Board, a unit of MHADA, ]
Gruhnirman Bhavan, Kalanagar, ]
Bandra (E), Mumbai - 400 051. ]
2. Slum Rehabilitation Authority, ]
An Authority constituted under the ]
provisions of Maharashtra Slum Areas ]
(I.C. & R) Act, 1971, having its Office ]
at Administrative Building, Prof. A.K. Marg, ]
Bandra (E), Mumbai 400051 ] ... Respondents
WITH
INTERIM APPLICATION NO.4663 OF 2022
The Juhu Vile Parle Development ]
Co-operative Housing Association Ltd. ]
A Co-operative Society registered ]
under the Maharashtra Co-operative ]
Societies Act, 1960, having its office at ]
Jai Hind Club, 51, Jai Hind Society, ]
N.S. Road No.11, JVPD Scheme ]
Mumbai 400 049. ] ... Applicant/
Intervenor
IN THE MATTER BETWEEN
Digitally
Bombay Slum Redevelopment Corporation ]
signed by
ASHWINI
ASHWINI
GAJAKOSH
Pvt. Ltd., A Company incorporated under the ]
GAJAKOSH Date:
2025.03.10 Provisions of Companies Act, 1956 ]
18:18:06
+0530
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Having its Registered Office at 707, ]
Trade Centre, Bandra Kurla Complex, ]
Bandra, Mumbai. ] ... Petitioner
Versus
1. Mumbai Housing & Area Development ]
Board, a unit of MHADA, ]
Gruhnirman Bhavan, Kalanagar, ]
Bandra (E), Mumbai - 400 051. ]
2. Slum Rehabilitation Authority, ]
An Authority constituted under the ]
provisions of Maharashtra Slum Areas ]
(I.C. & R) Act, 1971, having its Office ]
at Administrative Building, Prof. A.K. Marg, ]
Bandra (E), Mumbai 400051 ] ... Respondents
WITH
INTERIM APPLICATION (L) NO.37489 OF 2022
Bombay Slum Redevelopment Corporation ]
Pvt. Ltd., A Company incorporated under the ]
Provisions of Companies Act, 1956 ]
Having its Registered Office at 707, ]
Trade Centre, Bandra Kurla Complex, ]
Bandra, Mumbai. ] ... Applicant
IN THE MATTER BETWEEN
Bombay Slum Redevelopment Corporation ]
Pvt. Ltd., A Company incorporated under the ]
Provisions of Companies Act, 1956 ]
Having its Registered Office at 707, ]
Trade Centre, Bandra Kurla Complex, ]
Bandra, Mumbai. ] ... Petitioner
Versus
1. Mumbai Housing & Area Development ]
Board, a unit of MHADA, ]
Gruhnirman Bhavan, Kalanagar, ]
Bandra (E), Mumbai - 400 051. ]
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2. Slum Rehabilitation Authority, ]
An Authority constituted under the ]
provisions of Maharashtra Slum Areas ]
(I.C. & R) Act, 1971, having its Office ]
at Administrative Building, Prof. A.K. Marg, ]
Bandra (E), Mumbai 400051 ] ... Respondents
WITH
INTERIM APPLICATION (L) NO.38304 OF 2022
D.G. Power & Infrastructure Pvt. Ltd. ]
Through its Director Mr. Rajkumar Dharu, ]
Having its Registered Office at 103/104 ]
Nancy Lake Home Katraj, Pune-Satara Road, ]
Pune- 411 046. ] ... Applicant
IN THE MATTER BETWEEN
Bombay Slum Redevelopment Corporation ]
Pvt. Ltd., A Company incorporated under the ]
Provisions of Companies Act, 1956 ]
Having its Registered Office at 707, ]
Trade Centre, Bandra Kurla Complex, ]
Bandra, Mumbai. ] ... Petitioner
Versus
1. Mumbai Housing & Area Development ]
Board, a unit of MHADA, ]
Gruhnirman Bhavan, Kalanagar, ]
Bandra (E), Mumbai - 400 051. ]
2. Slum Rehabilitation Authority, ]
An Authority constituted under the ]
provisions of Maharashtra Slum Areas ]
(I.C. & R) Act, 1971, having its Office ]
at Administrative Building, Prof. A.K. Marg, ]
Bandra (E), Mumbai 400051 ] ... Respondents
Mr. Ankit Lohia, a/w Mr. Nishant Chothani, Mr. Atman Mehta, Mr. Vipul
Patel and Mr. Rachit Bharwada, i/by Haresh Mehta and Co. for the
Petitioner and for the Applicant in IAL/37489/2022.
Mr. Kunal Dwarkadas, i/by Dastur Kalambi and Associates for the Applicant
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in IA/4663/2022.
Mr. Mayur Khandeparkar, a/w Adv. Ashish Vernekar, i/by Mr. Sumit Kothari
for the Intervenor in IAL/38304/2022.
Mr. V.P. Sawant, Senior Advocate, a/w Ms. Aparna Kalathi, Ms. Shreya Shah,
i/by Adv. P.G. Lad for Respondent No.1-MHADA.
Ms. Geeta R. Shastri for Respondent No.2-SRA.
CORAM :
A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 12th February, 2025.
PRONOUNCED ON : 7th March, 2025.
JUDGMENT (Per Kamal Khata, J.):
-
1) By this Writ Petition the Petitioner seeks the following relief:
"A. This Hon'ble Court be pleased to issue a writ of
certiorari or a writ in the nature of certiorari or any other
writ, order or direction, calling upon the records and
proceedings from the file of the Respondent No.1 and
after going through the legality, propriety and validity of
the Impugned Notices, both dated 22/8/2022 (being
Exhibits 'A' & 'B' hereto), be pleased to quash and set aside
the same."
BRIEF FACTS :
2) The Petitioner is a developer appointed to develop a MHADA
owned property bearing CTS No.195 (part) at village Andheri and CTS
Nos.30 and 31 (part) along with Nalla land of Village Juhu. The MHADA
property was occupied by about 1010 slum dwellers. These slum dwellers
formed their respective societies with the following names:
1. Andheri West Loknayak Nagar Co-operative Housing Society
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Limited
2. Andheri West Shivaji Nagar Co-operative Housing Society Limited
and
3. The New Kapaswadi Co-operative Housing Society.
2.1) These societies approached the Petitioner to implement the slum
scheme and rehabilitate the members of these societies. The New
Kapaswadi Co-operative Housing Society was merged with Andheri West
Shivaji Nagar Co-operative Housing Society Limited and registered as one
society subsequently. The Societies executed various documents (mentioned
in the Petition) to appoint the Petitioner as their developer.
2.2) Being appointed as a developer, the Petitioner obtained NOC
dated 1st October, 1996. The NOC stated that there were three slum
societies, 1010 slum dwellers and covered an area of 40,165.96 sq. mtrs. It
excluded the area under Nala, proposed DP road and garden reservations.
The MCGM being the planning Authority had also issued D.P. remarks on
1st January, 1997 and subsequently on 1st October, 2005.
2.3) As per condition No.7 stated in the Letter of Intent ("LOI") dated
8th January 1997 a joint demarcation of the boundary of the SR scheme
was carried out by CTSO, Vile Parle, CTSO, Andheri and Respondent No.1
on 12th December, 2002 and the area of the land under the slum structures
was revised to 59,086.30 sq. mtrs. The CTSO, Andheri issued a demarcation
plan dated 31st March, 2003 for a total area of 59,086.30 sq. mtrs. Based
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on this demarcation plan, the Respondent No.2 revised the NOC dated 6th
August, 2003 and issued a revised LOI on 15th October, 2003. The slum
scheme was revised from time to time and the last revised LOI was issued
on 26th November, 2012. Based on these approvals and Commencement
Certificates, the Petitioner completed 6 rehab buildings and obtained
Occupation Certificates for the same.
2.4) The Petition narrates the efforts taken by the Petitioner in vacating
the slum structures which were spread over the entire property and its
claims of having incurred huge costs for securing various approvals from
the concerned authorities. The Petitioner also claims to have rehabilitated
around 777 eligible occupants occupying slums on the land out of the 1010
eligible occupants in the 6 rehab buildings.
2.5) Aggrieved by the Notices dated 22nd August, 2022 which claim to
recover possession of the land within the approved slum rehabilitation
scheme, the Petitioner was compelled to file the Petition. The Petitioner
claims to have spent a sizeable amount of money for realignment and
development of DP Road and realignment of the Nala and draining of the
Nala as per the BRIMSTOWAD remarks.
2.6) The Petition also states that despite carrying out substantial
construction of rehab component, the Petitioner was not allowed to start
construction of the sale building due to a Stop Work Notice issued by
Respondent No.2 on 11th November 2011 under instructions of MCGM.
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The Petition alleges that, the Respondent No.1 granted a stay to the NOC
dated 6th August 2003 which it discovered through a newspaper article on
13th May 2022. It also claims that, the Respondent No.1 had granted no
opportunity to submit its say before such stay was granted after 19 years of
issuance of NOC. Petitioner is also aggrieved by the fact that the
Respondent No.1 has not even issued a copy of the stay Order to the
Petitioner although it is the affected party in this decision.
2.7) It is therefore, averred in the Petition that, the Notices issued are
bad in law, illegal and mala fide. The Petition also avers that, the unilateral
reduction of the area of the land approved under some rehabilitation
scheme without giving an opportunity to the Petitioner to submit its say in
the matter, is clearly violation of principles of natural justice. The Petition
further avers that neither there were nor there are any set of guidelines for
measurement of the land and that the Respondent No.1 has failed to refer
to the earlier NOCs while conducting the site inspection and measurements
of the land on 1st August 2022 and have unilaterally reduced the land to
26,173.66 square meters as against the area of 40,165.96 square meters. It
also claims that, under various Affidavits filed in Writ Petitions and PILs
filed in this Court, the Respondent No.1's stand has been that, the entire
property was encroached by slum structures. The 1st Respondent has now
taken a completely contradictory stand in the Notices dated 22nd August
2022 to its own Affidavits filed in various Writ Petitions and PILs.
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2.8) The Petition also states that, the Petitioner's termination as
developer at this stage of the project would result in the Petitioner incurring
huge financial losses as it has invested more than 190 crores in the
development and construction of the rehab buildings. According to the
Petitioner, such an action, at this belated stage would tantamount to land
grabbing by the land owning authority itself.
2.9) The Petition also states that the funds have been raised by seeking
loans from IIFL Limited and have also mortgaged the free-sale portion of
the project. In these circumstances, the Petitioner claims equities in seeking
the reliefs stated hereinabove.
3) In this background and aggrieved by the said actions, present
Petition is filed. Mr. Lohia representing the Petitioner-developer argued that,
the two notices dated 22nd August, 2022 were issued ex parte. Therefore,
the principle of natural justice i.e. 'audi alteram partem' was violated. He
argued that, the Respondent No.1 has sought to unilaterally revise the area
under the scheme that was propounded in 1996 and revised in 2003
without considering that, the Petitioners had completed almost 80% of the
rehabilitation work of the project. He further argued that, the steps of
inspecting the site on 1st August, 2022, without notice to the Petitioners,
was itself erroneous. He asserted that the Respondent No.1 had failed to
take into account their own admission that the property was encroached
upon by slum dwellers earlier and therefore their subsequent claim that it
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was vacant land was itself erroneous. He asserted that, the Petitioners had
rehabilitated 777 tenements out of 1010 tenements in the scheme at an
expense of around Rupees One Hundred and Ninety crores (Rs.190 Crores).
He therefore submits that the impugned notices dated 22nd August, 2022
deserved to be quashed and set aside. In support of the aforesaid
contentions he relied upon the judgements in the case of Ayaaubkhan
Noorkhan Pathan vs State of Maharashtra & Ors reported in (2013) 4 SCC
465 and Pant Nagar Mahatma Phule Co-op Hsg. Society Ltd. & Ors vs State
of Maharashtra and Others reported in 2016 SCC OnLine Bom 1784.
4) Per Contra Mr. Sawant, learned senior counsel representing
Respondent No.1-MHADA opposed this Petition relying on the Affidavit of
Apurva N. Chavan, Deputy Engineer, dated 21st November, 2022. He relied
on the Annexure-II to support the decision and their contention that the
slum was spread over only 26,173.66 sq mtrs. and not an area of 59,086.30
sq mtrs. He further relies upon a categorical statement made in paragraph 8
of the said Affidavit that the Assistant Land Manager had no authority to
give an NOC for the area of 59,086.30 sq mtrs. He argued that, the only
thing that was sought to be done by the impugned notice/letter dated 22nd
August, 2022 was to take back the possession of the open land where there
is no slum next to open land (admeasuring 32913 sq mtrs). He further
contended that Respondent No.1 was required to dispose of their lands as
per Maharashtra Housing and Development (Disposal of Land) Regulations,
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1982, inviting tender by publishing advertisement as per Regulations 3 and
6 for persons classified based upon the income group namely, Economically
Weaker Section, Low Income Group, Middle Income Group and Higher
Income Group.
4.1) He further asserted that the Respondent No.1-MHADA was not
entitled to dispose of any land in manner other than under the provisions
made under Maharashtra Housing and Development (Disposal of Land)
Regulations, 1982. He therefore contended that, the land sought to be
taken over by the Petitioners was wrongly taken over and by these letters
they simply repossessed these lands. He further submitted that Respondent
No.1 has already taken possession of the land on 30th August, 2022 and
thus the Petition deserved to be dismissed.
5) Ms. Geeta Shastri for Respondent No.2-SRA also opposed the
Petition and relied on the Affidavit of Mr. Rajaram Patil, an Executive
Engineer of SRA dated 25th January, 2023 in support thereof. She argued
that, the Petition does not disclose any cause of action against Respondent
No.2-SRA. She argued that the notices dated 22nd August, 2022 have been
issued by MHADA and the relief sought in the Petition is also only against
MHADA.
5.1) Ms. Shastri argued that, the Petitioners had suppressed material
facts. She submits that, the Slum Rehabilitation Scheme proposed 9
rehabilitation buildings of which 6 buildings were completed and
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Occupation Certificates (OC) to the same had been issued way back in the
year 2009 and 2010. However, out of total 1010 eligible slum dwellers only
777 were apparently accommodated. Moreover, as a matter of fact,
although the Commencement Certificate (CC) to the other three buildings
were issued on 13th August, 2004, 30th May, 2003 and on 5th September,
2015 the buildings were not completed. She argued that even an IOA for
the 3rd building - viz. Building No.9, was not issued yet. Significantly, the
Petitioner's appointment as a developer was terminated by an Order dated
25th January, 2016.
5.2) She submits that, by letter dated 11th May, 2022, the Executive
Engineer, Bandra Division of Respondent No.1-MHADA had informed the
Executive Engineer of the Respondent No.2-SRA that the additional area
communicated vide NOC dated 6th August, 2003 was not a part of the
original Slum Rehabilitation Scheme as the same pertained to Nalla and DP
Road area and was thus required to be deleted from the Slum
Rehabilitation Scheme.
5.3) She argued that, Pursuant to Order of termination dated 25th
January, 2016 the Petitioner had filed an Appeal before the High Power
Committee ('HPC') which also was dismissed by an Order dated 29th April,
2017. However, the Order was partially modified on 29th April, 2017. She
further argued that, in the Writ Petition bearing (L) No.2216 of 2019 filed
by the Petitioner, this Court had directed the Respondent No.2-SRA not to
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take any coercive measures and not to take any steps to substitute the
developer.
5.4) However, pursuant to the letters, the MHADA had taken over the
possession on 30th August, 2022 itself, of the excess land which was not a
part of the slum. She therefore submitted that, the Petition deserves to be
dismissed.
6) Mr. Mayur Khandeparkar, learned Advocate appearing for the
Intervenor relied upon his Interim Application No.38304 of 2022, Order
passed by the SRA and the High Power Committee (HPC) to submit that
HPC by the Order dated 29th April, 2017 had permitted termination of the
Petitioner as developer and appointment of a new developer instead.
Following that, by an Order dated 26th July, 2019 passed by the Assistant
Registrar, CS, Western Suburban, SRA, the Intervenor has been appointed
as a new developer.
6.1) He further argued that, the Order dated 25th January, 2016
that was passed under Section 13(2) was in view of the incompetence of
the old developer. The removal was supported by the three societies namely
the Shivaji Nagar Cooperative Housing Society, Loknayak Nagar
Cooperative Housing Society and The New Kapaswadi Cooperative Housing
Society who had made an application dated 13th February, 2020 and had
requested for a change of the developer in view of the inordinate delay of
more than two decades caused in implementation of the Scheme as well as
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promoting erection of further illegal and unauthorised slums.
6.2) He argued that, following these complaints by the three
societies, the concerned Authority had taken action. Therefore, inspite of
knowing that the Intervenor was appointed as the new developer, the
Petitioner had failed to make them a party to the Petition thereby
attempting to snatch an order from the Court. He therefore submitted in the
above circumstances the Petition should be dismissed and in any event, if
Petition was to be entertained, no orders could be passed in the intervenors
absence.
7) We have heard all Advocates for the parties and perused record.
8) Although it seems to be very innocuous Petition, the same is
misleading. We find that there are disputed questions of facts which are
raised by the Respondent No.1. It appears from the records that the
Petitioners were given rights to develop 59,086.30 sq mtrs. The Respondent
No.2-MHADA contends that lands admeasuring 32913 sq. mtrs. are open
lands and includes nala and the D.P. Road. According to them only
26173.66 sq. mtrs. had slums. Thus, the question whether the area was
59,086.30 sq mtrs or 26,173.66 sq mtrs under slums is a dispute that we
cannot entertain in our Writ jurisdiction. The ratio laid down by the
Supreme Court in the case of Shalini Shyam Shetty and Another Vs.
Rajendra Shankar Patil reported in (2010) 8 SCC 329 squarely applies to
the case in hand.
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9) Perusal of the record indicates that the Petitioners have failed to
construct the balance 3 buildings since 2010. This in our view is clearly and
an inordinate delay. We find no satisfactory explanation for this delay in the
Petition. Even otherwise, the Petitioners have constructed only 6 buildings
over a period of 7 years and rehabilitated only 777 slum dwellers out of a
total 1010. This certainly is far too long a period for a slum scheme is
expected to be implemented. It has been more than two decades that this
Scheme is being implemented. As per the Affidavit of Mr. Rajaram Patil
representing Respondent No.2-SRA it appears that, the commencement
certificate to the 2 out of the 3 buildings were issued on 13 th August, 2004
and 30th May, 2003. These buildings are not yet completed. Present is a
clear case of inordinate delay in implementing and completing the SRA
project. In view of the afore-stated facts and circumstances, we do not find
any merit in the Petition.
10) The HPC in its Order dated 29th April 2017, referred to the
Judgment of this Court in the case of Ravi Ashish Land Developers V/s
Prakash Pandurang Kamble & Ors. reported in 2013 SCC OnLine Bom
2331. In para 14 of the Order dated 7 th December, 2013 the learned Single
Judge of this Court has observed as under:
"When the Slum Rehabilitation Projects which are undertaken
by the statutory authority enjoying enormous statutory power,
are incomplete even after twenty years of their
commencement, then it speaks voluminous of the competency
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of this Authority and the officials manning the same. In all
such matters, they must ensure timely completion of the
projects by appropriate intervention and intermittently. They
may not, after issuance of Letter of Intent or renewals thereof,
fold their hands and wait for developer to complete the
project. They are not helpless in either removing the slum
dwellers or the developer. The speed with which they remove
the slum dwellers from site, it is expected from them they must
proceed against errant builders and developers and ensure
their removal and replacement by other competent
agency"...... ." The Slum Rehabilitation Authority has been
conferred with the powers and each one of them coupled with
a duty. If the slum dwellers are eligible to be entitled to be
rehabilitated at site and within a reasonable period, they
cannot be left at the mercy of developer and builders." .... ."
The slum dwellers expect that the authorities like SRA should
take note of their grievances without any fear, favour and
affection towards any set of developer. An independent and
impartial implementation and supervision so also monitoring
of the projects is the purpose for which the Authority has been
set up".
10.1) We are in agreement with the above view and concur with it.
11) Moreover, by an Order dated 11th December 2023 this Court had
refused to entertain the Petition challenging the Order of HPC dated 29 th
April, 2017. In paragraph 46 the Order stated that:
"46. If the court is satisfied with the result of the meeting,
then it goes without saying that the Petitioner will be bound
by the outcome. Equally the 9th Respondent and Respondent
Nos.3 to 5 will also necessarily be bound by the outcome of
the meeting if the report of the SRA is accepted by the court.
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In other words, there is no possibility of this exercise being
undergone and yet leaving the Petitioner an opportunity to
argue the Petition on merits thereafter."
12) We have dismissed the Writ Petition No. 2041 of 2021 by an Order
of even date. In view of the dismissal of Writ Petition No.2041 of 2021, this
Petition would be that of a developer whose appointment has been
terminated and thus has no ground to maintain a Petition, for MHADA
reducing the area under the LOI and recovering vacant lands. Therefore,
the ground that the notices for resumption of land were issued ex parte
does not merit any reason for maintaining this Petition, inasmuch as the
letter was issued post their termination by the SRA and upheld by the
AGRC.
13) The judgements in the case of Ayaaubkhan Noorkhan Pathan
(supra) which explains the words "legal right" being one whose right or
interest has been adversely affected or jeopardized relied upon by Mr. Lohia
is of no avail inasmuch as the "legal right" has been adjudicated by the
AGRC and which Order is not under challenge in the present Petition.
14) The reliance upon the judgement in the case of Pant Nagar
Mahatma Phule Co-op Hsg. Society Ltd & Ors. (supra) to canvas the
proposition that it is not necessary to have a declaration of the particular
parcel of land as a slum rehabilitation area and there can be a scheme for a
viable stretch of pavement also does not assist him as these constitute
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disputed questions of facts which a Court in its jurisdiction under Article
226, ought not to entertain.
15) We therefore dismiss the Petition with no order as to costs.
16) In view of disposal of Writ Petition, Interim Applications filed
therein do not survive and are also disposed off.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
17) At this stage Mr. Lohia, learned counsel for Petitioner requested
this Court to continue the ad-interim relief granted by Order dated 30 th
August 2022.
18) Mr. Khandeparkar, learned counsel for Intervenor opposed the
said request and submitted that, the said request may not be entertained.
19) Mr. Lohia, learned counsel for Petitioner drew our attention to the
Order dated 3rd March 2025 passed in Civil Appeal No. 3533 of 2025 of the
Hon'ble Supreme Court.
20) In view of the observations made by the Hon'ble Supreme Court
vide Order dated 3rd March 2025 passed in Civil Appeal No. 3533 of 2025,
the ad-interim relief granted by Order dated 30th August 2022 is extended
by two weeks from today.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
