Bombay High Court
Suresh Narayan Kakde And 3 Ors vs State Of Maharashtra And 3 Ors on 14 October, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:18998-DB 4.WP.942.2024.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.942 OF 2024
1. Suresh Narayan Kakade, Age 65 years,
2. Chhaya Janu Mandavi, Age 60 years,
3. Sushma Ratnakar Bhandhari, Age 58 years,
4. Pramila Milind Thombre, Age 53 years
All R/o.2/15, Malti Kakade Niwas,
Bhandup Village Road, Opp.Bhatia Hospital,
Bhandup (West), Mumbai-400 078. Petitioners
versus
1. The State of Maharashtra,
through Principal Secretary, Housing Department,
Mantralaya, Mumbai.
2. The Slum Rehabilitation Authority through
Chief Executive Officer, Bandra (East),
Mumbai-400 051.
3. Samata Seva Vikas Co-op. Housing Society (proposed)
through Chairman/Secretary, office at
In front of Bhatia Hospital, Bhandup Village
Road, Bhandup (West), Mumbai-4000 078.
4. M/s.Sankalp Developers, office at
Thakre Estate, Tikujini Wadi Road,
Chitalsar, Manpada, Thane (West) Respondents
WITH
INTERIM APPLICATION NO.2702 OF 2024
IN
WRIT PETITION NO.942 OF 2024
1. Tulsiram Devidayal Charity Trust,
2. Gaurav Balkishan Devidayal,
3. Balkishan A.Devidayal
4. Shashi B.Devidayal Applicants
In the matter between :
Suresh Narayan Kakde and others Petitioners
versus
MANISH Digitally signed by
MANISH SURESHRAO
SURESHRAO THATTE
THATTE Date: 2025.10.15
13:12:53 +0530
The State of Maharashtra and others Respondents
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WITH
WRIT PETITION NO.1923 OF2019
1. Tulsiram Devidayal Charity Trust,
Devidayal AgroChemical, Devidayal Estate,
Rey Road, Mumbai-400 010.
2. Balkishan A.Devidayal,
Trustee of Tulsiram Devidayal Charity Trust,
Devidayal AgroChemical, Devidayal Estate,
Rey Road, Mumbai-400 010.
3. Shashi B.Devidayal,
Trustee of Tulsiram Devidayal Charity Trust,
Devidayal AgroChemical, Devidayal Estate,
Rey Road, Mumbai-400 010. Petitioners
versus
1. The State of Maharashtra,
through Principal Secretary, Housing Department,
Mantralaya, Mumbai.
2. Chief Executive Officer,
The Slum Rehabilitation Authority, Bandra (East),
Mumbai-400 051.
3. Additional Collector (Encroachment/Demolition)
and Competent Authority,
East Suburban Main Office, Industrial Assurance
Building, st Floor, Opp.Churchgate Station,
Mumbai-400 020.
4. Deputy Collector (Encroachment/Demolition)
Competent Authority, Office at Topiwala College
Building, Ground Floor, Sarojani Naidu Road,
Mulund (West), Mumbai-400 080.
5. Samata Seva Vikas Co-op. Housing Society (proposed)
office at Opposite Bhatia Hospital, Bhandup Village
Road, Bhandup (West), Mumbai-4000 078.
6. M/s.Sankalp Developers, office at
5, Thakre Estate, Tikujini Wadi Road,
Chitalsar, Manpada, Thane (West) Respondents
_______
Mr.Ranjit Thorat, Senior Advocate, i/by Mr.Balasaheb Deshmukh,Advocates for
Petitioners in WP.942/2024.
Mr.Shakeeb Shaikh with Mr.Noorain Patel i/by Diamondwala & Co. for Petitioners
in WP.1923/2019 and for applicants in IA.2702/2024.
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4.WP.942.2024.DOC
Smt.Usha Rahi, AGP for State in WP.942/2024.
Ms.Vrushali Kabre, AGP for State in WP.1923/2019.
Mr.Jagdish G.Aradwad (Reddy) for Respondent no.2 SRA in WP.942/2024.
Mr.Abhijit P.Kulkarni with Mr.Abhishek Roy, Ms.Sweta Shah for Respondent no.2
SRA in WP.1923/2019.
Mr.Prerak A. Sharma for Respondents 3 and 5 in WP.942/2024 and
WP.1923/2019.
Mr.A.S.Khandeparkar, Senior Advocate, i/by Mr.Sahil L.Shah for Respondent no.4
in WP.942/2024 and WP.1923/2019.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
Date of Reserving the Judgment : 24th September 2025
Date of Pronouncing the Judgment : 14th October 2025
JUDGMENT (Per : Aarti Sathe, J.) :
-
1. Rule. Rule made returnable forthwith. Heard finally by consent of the
parties.
2. These two Writ Petitions filed under Article 226 of the Constitution of
India challenge the acquisition of the piece and parcel of the land and the structure
thereon bearing Old survey no. 81, Hissa No. (part), CTS No. 270 (part)
admeasuring 1,201 square yards situated at Bhandup Village Road, Opposite
Bhatia Hospital, Mumbai - 78 (subject land). The Petitioners in the first Writ
Petition No.942 of 2024 are the legal heirs of late Shrimati Malti Naryan Kakade
who claim to be the owners of the said land ( hereinafter referred to as the "First
Petition"). The second Writ Petition No.1923 of 2019 is filed by Tulsiram
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Devidayal Charity Trust & Ors, who also claim ownership of the subject land
(hereinafter referred to as the Second Petition). An Interim Application No.2702
of 2024 has been filed in the First Writ Petition praying for impleadment of the
applicants therein i.e. trustees of Tulsiram Devidayal Charity Trust, who have
preferred the Second Writ Petition.
3. Learned counsel on behalf of both the Petitioners have submitted that
although insofar as the ownership of the subject land is concerned, an inter se
dispute exists between the two Petitioners which is not the subject matter of
adjudication, In the present proceedings, as both these petitions are ad-idem on the
challenge to the acquisition of the land in question against which they speak in
common voice. Thus, both the Petitioners challenge the acquisition proceedings
initiated by the Slum Rehabilitation Authority (SRA) under section 14(1) of The
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971
(Slum Act) of the subject land. Both the Petitioners contend that the impugned
acquisition is illegal and not in accordance to the due process of law and is contrary
to the provisions of the Slum Act which require that prior to making an acquisition
under section 14 of the Slum Act, a notice under section 13 of the Slum Act ought
to have been issued.
4. Briefly the facts in both the Petitions are set out as under:-
5. Facts in the Second Petition need to be noted which are as follows:-
5.1 The Petitioner is a public charitable trust registered under the
Bombay Public Trust Act 1956, having registration No. E-670. By virtue of
registered Indenture dated 23rd June, 1959, the Petitioner became the landlord and
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owner of the larger property of which the subject land is a part as described in para
1 of the Writ Petition. The property card and 7/12 extracts reflecting the
ownership of the Petitioner is annexed as Exhibit E to the petition.
5.2 The subject land was notified as a Slum under Section 4(1) of the
Slum Act on 10th December 1998. Thereafter, on 11th April 2008, a proposal was
submitted by respondent No. 5 i.e. Society to the SRA for the purposes of
redevelopment of the subject land. On 1st April 2013, a show cause notice was
issued by the SRA under Section 14 of the Slum Act. This notice was issued to
Prem Amirchand Devi Dayal who was neither the trustee nor had the Petitioner's
authority and therefore the Petitioner never received this notice.
5.3 Thereafter, on 28th June 2013, a change report along with order
passed by the learned Assistant Charity Commissioner accepting the change report
and directing Balkishan Devi Dayal and Shashi Devi Dayal to be recorded as
trustees was accepted. It is also the Petitioner's contention that Prem Amirchand
Devi Dayal who purportedly attended hearings before the CEO, SRA was never a
trustee of the Petitioner trust.
5.4 On 1st October 2013, a report was prepared by Respondent No. 2
recommending the acquisition of the subject land. Thereafter, on 28th August 2015,
the subject land was declared as a Slum under Section 3C of the Slum Act.
Respondent No. 1 State Government issued a notification to acquire the subject
land under the provisions of Section 14(1) of the Slum Act on 13 th October 2015.
5.5 Thereafter, a notice dated 20th February 2017 was issued by the office
of the Respondent No. 2 wherein it was informed to the Petitioner that the date of
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hearing for fixing compensation as regards the acquisition of the subject land was
kept on 20th February 2017. It was also informed to the Petitioner by such notice
that on 24th October 2016, 21st November 2016, 26th December 2016, 27th
December 2016, and 23rd January 2017, notices were sent to the Petitioner. It was
informed that the said notices of a hearing to be granted to the Petitioners were
sent via hand delivery, RPAD and email. It was further informed that public notice
in that regard were published on 8 th December 2016 in Daily Lokmat newspaper.
Such notices were also published on 1 st January 2017 in Marathi Daily Navakal and
English Daily Free Press Journal newspaper.
5.6 It was therefore informed to the Petitioner that since none attended
the hearing on the said date, the next hearing was scheduled on 20 th March 2017
in respect of the acquisition. It is the Petitioner's contention that this notice was
purportedly served by one Mr. Prashant Wagmare on 16 th March 2017, that is after
almost one month from the date of the notice. It is also the Petitioner's contention
that the remark of the said Prashant Wagmare only reflected that the said notice
was not received and further that Tulsiram Devi Dayal (the owner) had passed
away and thus the notice cannot be accepted. It was recorded in the said remark of
Mr. Wagmare that Tulsiram Devi Dayal was the owner of the subject land.
5.7 It is the Petitioner's contention that the remarks are absolutely silent
as to the particulars of person who provided the aforesaid information and also who
refused to take service of the notice. Thereafter on 7 th June 2017, an ex parte award
was passed by Respondent No. 2 under the provisions of section 17 of the Slum
Act, wherein an amount of Rs. 2,70,000 was purportedly awarded to the Petitioner
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in lieu of the acquisition of the subject land. It is the Petitioner's contention that
even this exercise was undertaken without following the provisions as envisaged
under section 17 (5) of the Slum Act.
5.8 Thereafter on 29th August 2017, a receipt was issued by the land
survey officer reflecting the ex parte possession (paper possession) being taken of
the subject land. A letter dated 22 nd February 2018 was also addressed by
Respondent No. 6 i.e. developer to deputy collector SRA intimating that the
proposal for development of Respondent no. 5 society has been submitted along
with the latest property card. This letter was procured by the Petitioner under the
Right to Information Act and that is when, sometime around 2018, the Petitioner
learned about the impugned acquisition.
5.9 On 18th January 2021, a Letter of Intent (LOI) was issued by
Respondent No. 2 to Respondent No. 6 developer. It is on the backdrop of these
facts, that an ex-parte award was passed against the Petitioner without following the
provisions of the Slum Act, that the Petitioner has challenged the land acquisition.
The prayers as made in this petition are as follows :
"a) that this Hon'ble Court be pleased to issue a Writ of Certiorari, or a
Writ in the nature of Certiorari, or any other appropriate Writ, Order or
direction to call for the papers and proceedings relating to the said
Impugned Report dated 1st October 2013 (being Exhibit `A' hereto) with
respect to the impugned Acquisition Proceedings with respect to the
property being Plot of land situated at CTS No.270 (Part), situated at
Mouje Bhandup, Tal.Kurla, admeasuring area 1058.50 sq.mtrs and after
going into the legality and propriety thereof be pleased to quash and set
aside the same as the same is illegal, vitiated and against the principles of
natural justice;
b) that this Hon'ble Court be pleased to issue a Writ of Certiorari, or a
Writ in the nature of Certiorari, or any other appropriate Writ, Order or
direction to call for the papers and proceedings relating to the said
Impugned Notification dated 13th October 2015 (being Exhibit `B' hereto)
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with respect to the impugned Acquisition Proceedings with respect to the
property being Plot of land situated at CTS No.270 (part), situated at
Mouje Bnandup, Tal.Kurla, admeasuring area 1058.50 sq.mtrs and after
going into the legality and propriety thereof be pleased to quash and set
aside the same as the same is illegal, vitiated and against the principles of
natural justice;
c) that this Hon'ble Court be pleased to issue a Writ of Certiorari, or a
Writ in the nature of Certiorari, or any other appropriate Writ, Order or
direction to call for the papers and proceedings relating to the said ex-parte
Impugned Award dated 7th June 2017 (being Exhibit `C' hereto) with
respect to the impugned Acquisition Proceedings with respect to the
property being Plot of land situated at CTS No.270 (part), situated at
Mouje Bhandup, Tal.Kurla admeasuring area 1058.50 sq.metrs and after
going into the legality and propriety thereof be pleased to quash and set
aside the same as the same is illegal, vitiated and against the principles of
natural justice;
d) that pending the hearing and final disposal of the present writ
petition, Respondent no.2 be restrained by an Order and injunction of this
Hon'ble Court from sanctioning any scheme on the said plot being CTS
No.270 (pt) admeasuring 1058.50 sq.mtrs or issuing any redevelopment
permissions with respect to the said plot;
e) for interim and ad-interim reliefs in terms of prayer (a) to (d) above;
f) for costs of this Petition and orders thereon; and
g) for such further and other reliefs, as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the case."
6. Facts in the first petition are as follows:-
6.1 The Petitioners herein are the legal heirs and representatives of late
Smt. Malti Narayan Kakade, original lessee who expired on 9th April 2019. One
Dhanaji Babu Patil was a protected tenant and was cultivating and occupying the
entire subject land till 1968. After the tiller's day under the Bombay Tenancy and
Agricultural Land Act, 1948 the protected tenant became the owner of the said
agricultural land. Thereafter, the said Dhanaji Babu Patil entered into a registered
lease in perpetuity in favour of late Smt. Malti Narayan Kakade, i.e. the mother of
the Petitioners herein, in respect of the open plot of land i.e. subject land for the
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period of 99 years and further extendable up to 99 years. The erstwhile owner
Dhanaji Babu Patil also put the Petitioner's mother i.e. Smt. Malti Narayan Kakade
in possession, occupation and enjoyment of the subject land in terms of a registered
lease dated 12th January 1968.
6.2 The Additional District Deputy Collector, Andheri by an order dated
26th July 1969 granted permission for conversion of agricultural land into non-
agricultural land for the purposes of utilizing the subject land for development of
residential and commercial purposes.
6.3 It is the Petitioner's contention that tenants on the subject land of the
Petitioner's mother i.e. Smt. Malti Narayan Kakade and the builder approached the
Deputy Collector Encroachment and Eviction for acquisition of the subject land
under the provisions of Section 14 of the Slum Act. It is in pursuance thereof that
sometime in 2011, the Petitioners received a notice dated 8 th March 2011 from the
office of the Deputy Collector Encroachment and Eviction Mumbai stating that
the proposal for acquisition of the subject land has been received. The Petitioners'
mother Smt. Malti Narayan Kakade immediately submitted her reply dated 15 th
March 2011 to such notice and opposed the proposed acquisition and also claimed
preferential right to develop the subject land under the Slum Act.
6.4 On 13th February 2013, Respondent no.1 informed that as per the
provisions of Chapter 1A read with Section (3) (D) (C) (i) of the Slum Act, if
private landed property is required to be acquired under the Slum Act, then the
entire process of acquisition has to be from the office of Respondent No. 2 i.e. SRA
and not from the office of the Deputy Collector Encroachment and Eviction. So,
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the proposal submitted by the Deputy Collector Encroachment and Eviction came
to be turned down and the Petitioner was asked to file a fresh acquisition proposal
by making compliance of the Slum Act.
6.5 Thereafter, on 1st April 2013, Respondent No. 2 issued a show cause
notice dated 1st April 2013 and without making any survey, assessment, actual
inspection of the subject land, contented that the subject land needs to be acquired
under section 14(1) of the Slum Act for the implementation of the Slum
Rehabilitation Scheme as per the proposal submitted by the Respondent No. 3
society. The Petitioner submitted a reply to the office of Respondent No. 2 and
opposed the said acquisition and claimed a preferential right to develop the subject
land under the Slum Act.
6.6 However, on 1st October 2013, without following the due process of
law and without complying with the Slum Act, Respondent No. 2 submitted a
proposal of acquisition of the subject land to the State Government i.e. Respondent
No. 1 under section 14(1) of the Slum Act. Respondent No. 1 thereafter sometime
on 11th September 2015 marked the area as a Slum rehabilitation area under section
3C(1) of the Slum Act and the same was published on 31st August 2015.
Thereafter, Respondent No. 1 issued a notification dated 13 th October 2015 by
exercising powers under section 14(1) of the Slum Act without compliance of the
basic ingredients of the sections i.e. a notice under section 13 was not issued which
is mandatory, and declared the said to be a Slum Rehabilitation Project.
6.7 Thereafter, correspondence ensued between the Petitioner and Chief
Secretary of State of Maharashtra and an appeal was also filed to set aside the
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notification dated 13th October 2015 issued by Respondent No. 1. However, the
same was not acted upon and it was forwarded by the Additional Chief Secretary's
office to Respondent No. 2 to take action.
6.8 However, without taking any notice of the objections filed by the
Petitioner to the acquisition made by way of the aforesaid notices, an award came
to be passed on 7th June 2017 to acquire the subject land of the Petitioner. Post
passing of the said award, Respondent No. 2 informed the Petitioner's mother i.e.
Smt. Malti Narayan Kakade that the name of the Petitioners are not reflected on
the 7/12 extract of the subject land, and the same needs to be challenged in appeal
proceedings. Petitioner's mother i.e. Smt. Malti Narayan Kakade followed up at
various levels with the various authorities including Respondent No. 2 in
pursuance of the aforesaid award. However, there was no response from such
authorities. The office of Respondent No. 1 on 2 nd March 2019, informed the
mother of the Petitioner i.e. Smt. Malti Narayan Kakade that the subject land was
acquired for redevelopment of a slum scheme and an award has been published in
respect thereof.
6.9 Various correspondences were entered by the Petitioner's mother i.e.
Smt. Malti Narayan Kakade up until 2020 with various officers for the purposes of
getting the subject land restored in her name and also for getting a Sanad as well as
mutation of the name on the 7/12 extract of the subject land, however, the same
was not done. Thereafter on 18 th January 2021, Respondent No. 2 issued a Letter
of Intent (LOI) for the purposes of development of the subject land. It is on the
backdrop of the aforesaid facts, the Petitioners have filed this petition challenging
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the acquisition of the subject land to contend that the same is being acquired
illegally and/or without following the due process of law as the Slum Act would
stipulate.
6.10 As noted hereinabove, in both the above Petitions, the Petitioners
have primarily submitted that the procedure as contemplated under the provisions
of Slum Act have not been followed prior to acquisition of the subject land
considering the settled principles of law laid down in several decisions of this Court
and the Supreme Court. The Petitioners in the First Petition have submitted that
Respondent No.2 ought not to have issued a notice under section 14(1) of the
Slum Act without exercising the power contemplated under section 13(1), (2) of
the Slum Act. The Petitioners have further contented that Respondent no2 hence
should not have forwarded the proposal dated 1 st October, 2011 to Respondent
No.1 under Section 14(1) of the Act without compliance of section 13(1), (2) of
the Slum Act. Further there was no publication made in the newspaper, nor was
there any notice issued as contemplated under section 13 of the Slum Act. There
was no fair opportunity of a hearing granted to the Petitioner before submitting the
proposal and before issuing a notification under section 14(1) of the Act. Such
actions were against the established principles of natural justice.
6.11 The Petitioners further submitted that Respondent No.1 had acted at
the behest of the proposed society i.e. Respondent No. 3 and 4 and there was no
actual survey, inspection of the site or any declaration that the adjoining plot to the
subject land whether was declared a Slum. It was therefore not the case that the
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adjoining plot was a Slum and for the purpose of redevelopment thereof, the
subject land was being acquired.
7. The Petitioners also submitted that admittedly there was no notice as
contemplated under Section 13(1) of the Slum Act issued to the Petitioners mother
i.e Smt. Malti Narayan Kakade who appeared before the Dy. Collector, SRA. The
mother of the Petitioners i.e. Smt Malti Narayan Kakade had also filed a detailed
reply to the show cause notice issued under section 14(1) of the Slum Act wherein
she had claimed her preferential right to develop the subject land. It is also
submitted by the Petitioner that Respondent No. 1 and 2 ought to have issued a
notice under section 13 of the Slum act before invoking S. 14(1) of the Slum Act
which was a sine qua non. Hence, the acquisition of the subject land was bad in
law. The Petitioner also submits that the facts of the present case are squarely
covered by the judgment rendered by this Court in Writ Petition No.1360 of 2024
(Byramjee Jeejeebhoy Pvt.Ltd and others Vs. State of Maharashtra and others),
Writ Petition No. 1212 of 2022 (Bishop John Rodrigues Vs. State of Maharashtra
and others) and Writ Petition No. 2448 of 2015 (Aakash Dhamista Construction
Pvt.Ltd. Vs. State of Maharashtra and others). The Petitioners also submit that the
said issue now stands covered by the judgment of the Supreme Court in Saldanha
Real Estate Private Limited Versus Bishop John Rodrigues and others 1 . It is also
submitted by the Petitioners that the trust who has preferred Second Petition never
exercised preferential right to develop the subject land. In view thereof the
12025 SCC OnLine SC 1794
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Petitioner submitted that the actions of the Respondents in acquiring the subject
land is contrary to the provisions of Slum act.
8. In the second Writ Petition also the Petitioners have broadly made similar
submissions as made in the first Writ Petition noted hereinabove. The Petitioners
primarily submitted that the landowner has preferential right to develop the land.
They also submitted that notice under section 13(1) of Slum Act is mandatorily
required to be given prior to acquisition to the land owner. Therefore, since in the
facts of the present case, the mandatory condition of giving notice has not been
followed, the entire acquisition proceedings are liable to be quashed and set aside.
9. In the Second Writ Petition, reply affidavit of Respondent No. 2 SRA has
been filed. None of the other Respondents have filed affidavits in the aforesaid
petition. Respondent No. 2, SRA has primarily opposed the admission of the
present Petition on the ground that the same suffers from gross delay and latches of
around 6 years in filing the same. It is Respondent No. 2's contention that the
memo of Petition was sworn on 19th June 2019 and the report under challenge
dated 1st October 2013 has been challenged after a period of 6 years. Also, the
notification dated 13th October 2015 and the award dated 7 th June 2017 has also
been challenged by way of the present petition only in 2019 and therefore, on the
ground of delay and latches itself, the present petition deserves to be dismissed.
Further, Respondent No. 2 has also contended that the Petitioner trust has raised
disputed questions of fact and also contended that one Prem Amarchand Devi
Dayal was never the trustee of the Petitioner trust nor was he authorized to attend
any hearing on behalf of the trust. In view thereof, since these are disputed
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questions of fact, Respondent No. 2 submitted that the present Petition deserves to
be dismissed. Respondent No.2 also further contended that Slums were
constructed on the subject land and the Petitioner trust did not take any action
against them and they had an alternate efficacious remedy available to them for the
purposes of taking the said action. Respondent no. 2 has also contended that the
subject land was declared as a Slum under section 4(1) of the Slum Act and
therefore details of the titled area were given in respect of the proposed acquisition
along with information about notices to the concerned persons. Respondent No. 2
further contends that the State Government by report dated 1 st October 2013
informed the Secretary, Housing Department Mantralaya the details titled area,
survey No. and proposal of the land given by the Respondent No. 4 society who
had submitted the proposal for redevelopment. Respondent No. 2 therefore
submitted that due procedure of law had been followed and notice under section
14(1) of the Slum Act was also published in the newspaper. As seen from the tenor
of the affidavit filed by the SRA i.e. Respondent No. 2, it is its contention that due
procedure of law was followed under the Slum Act, and that the acquisition has
been made as per the mandate of the Slum Act and after affording proper
opportunity to the Petitioner.
10. Written submissions/propositions have been submitted by Respondent
No.6 in the Second Writ Petition, wherein Respondent no.6 has opposed the
admission of the present petition on the ground that the same suffers from delay
and laches. It is further submitted that Respondent No.6 has mobilized the site and
proceeded with the redevelopment of the subject land. It is also submitted that
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Respondent No. 6 has incurred substantial expenses towards transit
accommodations. In view thereof, Respondent No. 6 has opposed the admission of
the aforesaid petition.
11. In the First Writ Petition, Affidavit of Respondent No.2 on behalf of Slum
Rehabilitation Authority has been filed opposing the admission of the present
petition to contend that the Petitioner did not show any willingness to develop the
said property. It is contended that a proper show cause notice under section 14 of
the Slum Act was issued to the Petitioner and an opportunity of a hearing was also
granted given to the Petitioner. However, the Petitioner did not show any
willingness to redevelop the property on his own and hence by a detailed report
dated 01st October 2023, acquisition was recommended under section 14(1) of the
Slum Act. It was further submitted that by notification dated 28 th August 2015,
subject land was declared as "Slum Rehabilitation Area" under Section 3-C of Slum
Act and award dated 07th June 2017 was passed after following due process of law.
It was submitted that compensation was given to the trustees of the trust, but the
same was refused by them. It was therefore submitted that the First Writ Petition
deserves to be dismissed.
12. Affidavit in Reply of Respondent No.1, 3 and 4 is filed in the First Writ
Petition opposing the admission of Writ Petition and submitting that due process
of law has been followed before issuing the notification dated 13 th October, 2015 to
acquire the subject land under section 14 of the Slum Act.
13. Written propositions/submissions of behalf of Respondent No. 4 are also
filed in the First Writ Petition wherein it is submitted that the Petitioners i.e. Smt.
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Malti Narayan Kakade who claims to be the owner of the subject land does not
have a valid legal right and therefore cannot claim preferential right of
redevelopment on the subject land. It is also submitted that notice under section
14(1) of the Slums act was issued to the Petitioner's mother i.e Smt. Malti Narayan
Kakade and she was unable to establish her ownership with proper documents
during hearing. Respondent No.4 has further opposed the admission of the present
petition on the ground that the same suffers from delay and laches. It is further
submitted that Respondent No.4 has mobilized the site and proceeded with the
redevelopment of the subject land and incurred expenses in respect thereof.
ANALYSIS :
14. In the backdrop of the above facts of both the petitions and considering the
submissions made by learned counsel for respective parties, it is an undisputed
position that prior to the acquisition of subject land, no notice was issued to the
Petitioners under section 13 of the Slum Act. Even though all the Respondents in
their various affidavits and written submissions have submitted that a notice was
not issued under section 13(1) of the Slum Act calling upon them to undertake
redevelopment of the slum being their preferential right, as no hearing was granted
to the Petitioners under Section 14(1) of the Slum Act, yet the same doesn't take
away the fact that a notice under section 13 of the Slum Act is a sine qua non for
acquisition under section 14(1) of the Slum Act for acquisition of the subject land.
15. It is also clear from the facts in First Writ Petition No.942 of 2024 that
mother of the Petitioner i.e. Smt. Malti Narayan Kakade had appeared before the
SRA Authorities and claimed preferential rights for redevelopment of the subject
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4.WP.942.2024.DOC
land, however that does not make the acquisition legal and valid in as much as
section 13 notice has not been given to the Petitioners in both the Writ Petitions.
16. In the decision of Indian Cork Mills Private Limited Vs. State of
Maharashtra and others2 a co-ordinate Bench of this Court wherein one of us
(G.S.Kulkarni, J.) was a member, has also taken a view that preferential rights of the
land owner have to be recognized more particularly in respect of any
redevelopment even if a proposal is sent to the SRA for redevelopment by the slum
dwellers. The relevant paragraphs of the aforesaid decision are reproduced below:
"59. That a preferential right for redevelopment is so vested in the
owners/landholders and/or occupants is further clear in view of a
conditional power/authority created with the SRA to undertake
redevelopment of the slum rehabilitation area in a two-fold manner firstly
by exercising power under sub-section (1) or (2) of Section 13 which is to
re-develop the land by entrusting it to any agency on a failure of the
landholder or the occupant in not coming forward within a reasonable time
with a scheme for re development; and when application of Section 13(1)
and (2) do not fetch any result by re-developing or carrying out
development under the slum rehabilitation scheme in any slum
rehabilitation area by resorting to acquisition of the land under section 14 as
applicable with modification under Chapter I-A. It is thus clear that the
object and purpose which the provisions of Section 3B(4)(e), Section 13(1)
and (2), Section 12(10) and Section 14 (as modified by under Chapter I-A)
is to achieve and bring about an effective redevelopment of slum
rehabilitation area.
Thus, from the legislative scheme of the amended provisions it can be
clearly inferred that the rights so conferred under these provisions on the
owner/landholder/occupant cannot be usurped directly by putting into
operation the acquisition machinery simply because such power exist on the
statute book. The exercise of such power within the scheme of Chapter I-A
is required to be resorted by due adherence to the said provisions which
have created and recognized the legitimate rights in the owners, landholders
and occupants to undertake re-development. The power to acquire land is
also required to be exercised in a fair manner and certainly in the context of
the present statutory scheme, when the object and purpose for which
acquisition is to be undertaken can be achieved by other methods and for
which the statute has made the requisite provision for achievement of such
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4.WP.942.2024.DOC
purpose.
89. We also cannot accept the submission as urged on behalf of the society
that since the society has submitted a scheme prior to the petitioner's
scheme, the preferential right in favour of the petitioner does not survive.
This submission pre-supposes that there is a preferential right in the
petitioners to redevelop the said land. ... ... ..."
17. We find that in the facts of the present case, the issue is no longer res integra
considering that this issue has been extensively dealt with and decided in the case
of Bishop John Rodrigues Versus The State of Maharashtra and others 3 , which has
been upheld in the case of Saldanha (supra), wherein it has been held that land
which is admittedly private land on which there were hutments and which came to
be declared as "Slum Rehabilitation Area" under the provisions of section 3C(1) of
the Slum Act, cannot be acquired without recognizing the preferential rights of the
Petitioner as owner of the said land. The State cannot discard the Petitioner's
rights and proceed to acquire the land under section 14 of the Slum Act.
18. At the outset we may observe that it is not in dispute that the land in
question is a private land in respect of which the Petitioner enjoys valuable rights
under Article 300A of the Constitution. Therefore, the acquisition of the subject
land had to be done by following due process of Law. In the decision of Bishop
John Rodrigues Vs. The State of Maharashtra and others (supra) of which one of us
(G.S.Kulkarni, J.) was a member, it was categorically held that the provisions of
Section 13 are sine qua non for any acquisition of property under Section 14 of the
Slum Act. Relevant paragraphs of the said judgment are reproduced below :
3Writ Petition (OS) No.1212 of 2022
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"101. In these circumstances, 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 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 permit the owner of the land to
undertake the development. The CEO-SRA has an onerous obligation to
reasonably, non-arbitrarily, and objectively deal with the valuable property rights
of private citizens who are dragged in such 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 right to property. 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. We may also add that if the official machinery was to act as per
law, today we would not have been confronted with the situation of an
international city like Mumbai being also known for its slums on private and
public lands [See the observation of the Court in High Court on its own motion
(In the matter of Jilani Building at Bhiwandi) vs. Bhiwandi Nizampur Municipal
Corporation & Ors. (supra).
102. Be it so, in our opinion, a cumulative reading of the provisions under
Chapter-I-A does not, in any manner, depict a legislative intent that the moment
the private land is declared as a slum and a cooperative society of slum dwellers is
formed, no opportunity whatsoever is required to be granted to the owner of the
land to undertake development of the land. In fact, primary obligation on the
CEO-SRA as also for the slum rehabilitation society is to issue a notice to the
owners of the land specifying the period/a time bound schedule i.e. 120 days as
contemplated under Section 13(1) of the Slum Act. This would be the basic
necessity before a owner could be deprived of its constitutional rights under
Article 300A before applying the statutory 120 days as contemplated under
Section 13(1) of the Slum Act either from the declaration of the slums as the slum
rehabilitation area or any insistence on the part of the society and which may not
be to the knowledge of the owner. In our opinion, the petitioner would be correct
in its contention that Section 13(1) would be required to be read in the context of
what has been observed by the Division Bench of this Court in Indian Cork Mills
Pvt. Ltd. vs. State of Maharashtra (supra), in as much as, for a valid acquisition
under Section 14, the pre-requisite would be an opportunity to call upon the
owner of the land to come forward with a scheme to undertake the redevelopment
by putting him to a notice that a rehabilitation scheme if not submitted by him,
would be a circumstance which would be taken against him so as to take steps to
acquire the land. The Division Bench had held that such notice to the land owners
was imperative, considering the plain reading of Section 14(1) of the Slum Act.
The observations of the Division Bench in that regard are already noted by us
hereinabove.
103. Moreover, it can be clearly seen that the SRA has accepted the fact that the
owner would have preferential rights to undertake redevelopment of the slums
which has also been noted by the Division Bench in the case of Anil Gulabdas
Shah vs. State of Maharashtra (supra) referring to SRA's circular. Such position was
also considered by the Division Bench of this Court in Indian Cork Mills Pvt. Ltd.
vs. State of Maharashtra (supra) wherein the Court in paragraph 97 observed that
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4.WP.942.2024.DOC
such circular was binding on the SRA. Such observations of the Division Bench
read thus:-
"97. The decision in Om Sai Darshan society (supra) the court
was dealing with the issue as noted by the Court in para 2 of the
decision which reads thus: "This petition under Article 226 of the
Constitution of India inter alia seeks to challenge the orders of
eviction dated 4th March 2005 issued by the respondent no. 3
(Mumbai Housing and Area Development Board) against the
members of the petitioner no. 1 proposed society under sections
33 and 38 of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act 1971 (hereinafter referred to
as "the slum Act"). In the said notices, it is alleged that the
members of the petitioner no. 1 to whom notices have been
addressed have refused to shift to the alternative accommodation
offered by the developer i.e. respondent no. 7. It is stated in the
notices that if the concerned persons failed to show cause, action
of eviction will be taken under sections 33 and 38 of the Slum
Act. The second prayer in this petition is for a writ of mandamus
directing Respondent nos. 2, 3 (Slum Rehabilitation Authority)
and respondent no. 6 (Deputy Collector, SRA) to hear the
applications made by the petitioners for grant of Index-II for
development of the property in favour of the petitioner no. 1
proposed society. The petitioners have taken out a notice of
motion for interim protection against demolition. An order of
status quo has been granted on 12th December 2005 and the
same has been continuing."
111. We may also observe that such contention of the society that the
moment the land in question, which is of private ownership, is declared as a
slum and after coming into force of Regulation 33(10) of the DCR would
mandate steps to be taken to develop the land, would also be required to be
held to be fallacious. As stated hereinabove, it cannot be expected that the
owner of the land would instantly possess the necessary wherewithal, or
would have no opportunity to mobilise/organise himself to undertake a
redevelopment. Thus, it is ill-conceivable that an instant development of
such land from the resources of a private person can automatically be
foisted. Such an argument also lacks discernment to any ground realities in
which the owner of the land in a given situation may find himself, under
the scheme of the things.
118. If this be the position, then certainly, the slum dwellers merely by
forming a society cannot assert that their rights are higher than the rights of
the owners of the land and as successive Division Benches of this Court has
held that the rights of the slum dwellers cannot be elevated (as if they are
the owners of the property), so as to control the rights of the owners of the
land under the garb of rehabilitation and through the resources of a
developer, foist/dictate compulsory acquisition of land against the owner.
The acquisition of the land for rehabilitation of slum dwellers can also
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4.WP.942.2024.DOC
never be on a pedestal and/or of a status of an acquisition of the land for
public purposes in relation to public project to be undertaken by the State
in exercise of its powers of eminent domain. This for two reasons firstly, it is
a private group of persons (slum developers) who would be the beneficiary
of such land acquisition and the second beneficiary would be the developer
who would reap bonanza of a huge Floor Space Index (FSI) in undertaking
construction of commercial/saleable premises. Thus, the only beneficiaries
of such acquisition of private persons, the Government would spend a
meager amount of compensation to be paid as per Section 17 of the Slum
Act. Despite this clear position, quite unfortunately, the experience in
relation to acquisition under the Slum Act is quite different. It is completely
misunderstood, misapplied, misinterpreted or abused by the authorities;
this considering the proliferation of litigation in this regard, concerning
private lands as encroached, and what is happening to public lands is a
mystery which can never be resolved.
121. Thus, a conclusion can be reached that the process of acquisition of
private land under the Slum Act is quite draconian with minimal say to the
owners of the land coupled with enormous discretion conferred on the
CEO, SRA, leaving an enormous scope and window, for large scale
arbitrariness and illegality. Considering such parameters, there is an onerous
obligation on the State Government not to have a mechanical approach in
processing proposals from the CEO SRA and to very minutely examine
each and every proposal and reach to a subjective satisfaction for reasons to
be recorded in writing as to whether the proposal for acquisition as being
put up by the CEO, SRA is fair, reasonable and non-arbitrary. In the present
case, valuable land of the petitioner situated at Bandra is being acquired for
merely 35 slum dwellers. It is quite astonishing as to why in such a
situation, the SRA would not grant an opportunity to the petitioner to
undertake redevelopment of its own land and rehabilitate the slum dwellers
and in fact, resort to a compulsory acquisition of the petitioner's land under
Section 14 of the Slum Act." (emphasis supplied)
19. This decision of the co-ordinate Bench of this Court was challenged before
the Supreme Court in Saldanha Real Estate Private Limited Vs. Bishop John
Rodrigues and others (supra) and the said decision of this court has been upheld by
the Supreme Court in the Special Leave Petition. The relevant paragraphs of the
decision in the civil appeal are reproduced below :
20. The learned Senior Counsels for the Appellants strenuously argued
that, as a consequence of the 2018 Amendment, there is no statutory
requirement to issue a separate notice for initiation of proceedings Under
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4.WP.942.2024.DOC
Section 13 of the Slums Act.20 The reason attributed to this inference was
that such a notice already stands effected on a landowner Under Section
3C, as a Rule of audi alteram partem within the process of notifying the
land as an SR Area. It was thus elaborated that in view of the changed
legislative policy, the precondition of a separate notice Under Section 13 as
outlined in Indian Cork Mills (supra) and upheld by this Court in Tarabai
(2025 INSC 1015) would no longer be applicable. It was clarified that the
cited decisions pertain to the situation as it stood prior to the 2018
Amendment and are, thus, distinguishable.
21. In this regard, a pointed reference was also made to the phrase,
'which shall not be more than one hundred and twenty days' in Section 13,
to buttress the submission that the onus has been shifted onto the
landowner to remain vigilant and submit the SR Scheme within the
stipulated period once the Section 3C(1) Declaration is issued.
22. On a bare perusal of the 2018 Amendment, it seems to us that no
attempt has been made to remove or dilute the preferential right of the
landowner to redevelop an SR Area. All those provisions which have been
analysed in Tarabai (supra) lead to only one conclusion, i.e., that the owner
has a primary right to undertake development, and none of the provisions
have been amended. Rather, the owner's right is now further entrenched
into the legislative scheme, with the addition of the term 'owner' into the
text of Section 3B(5) and Section 13, along with the existing expressions of
'landholders' and 'occupants'. The Legislature has, thus, expressly
acknowledged the distinct rights enjoyed by the owner or a landlord within
Chapter I-A.
23. In order to address the Appellants' contention, it is germane, firstly, to
observe that, under Chapter I-A, no occasion arises for any stakeholder to
develop an area unless it has been finally notified as an SR Area. In other
words, the Section 3C(1) Declaration is a stage prior to redevelopment
being initiated Under Section 13. The issuance of a notice Under Section
3C 24 is meant to accord hearing to a landowner and invite objections, if
any, against declaration as an SR Area. By contrast, this Court, in Tarabai
(supra), has expressly held that the purpose of a specific notice Under
Section 13 is to invite and enable the owner to initiate redevelopment.
Keeping in mind the fact that both the provisions operate in different
directions and for different purposes, what is deemed to be mandated
Under Section 13 cannot be rendered moot by the stipulations in Section
3C. With this view of the matter, the plea of the Appellants that the new
mechanism within Section 3C no longer necessitates a separate notice-
cuminvitation on the landowner cannot be accepted.
24. Further, Tarabai (supra) outlines very cogent and critical reasons for
why the specific notice under Section 13 is a mandatory requirement. This
Court, considering the practical realities of preparing an SR Scheme as well
as the potentially drastic consequences of not submitting the same, held
that it would not be feasible for the owner to file the scheme without being
invited to do so. The newly added qualification of 120 days in Section 13 in
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4.WP.942.2024.DOC
no way impacts or has any relation to such an invitation or the reasons
behind its necessity. The incorporation of this condition cannot lead to the
conclusion that the notice-cum-invitation is no longer required. Rather, the
stipulated time-limit would come into effect after the owner is notified and
invited to redevelop the SR Area, whereupon they must come forward
within the time-ceiling. The claim of the Appellants that the owner is
expected to present an SR Scheme within 120 days of the Section 3C(1)
Declaration without any notice-cum- invitation is wholly misconceived
and, thus, accordingly rejected.
25. On a conspectus of the 2018 Amendment and the perceived resultant
variation on the pre-amendment legislative policy, we are satisfied that the
holistic interpretation of the Slums Act made by this Court in Tarabai
(supra) is also squarely applicable on post 2018 Amendment actions/events,
barring the now legislatively stipulated timeline within which a
redevelopment scheme has to be submitted by an interested landowner. It,
then, goes without saying that SRA's actions initiating the acquisition in the
instant case must also be tested against the same principles, which we shall
now proceed to assess in the following issue.
29. At the cost of repetition, it may be reiterated that Mr. Divan advanced a
two-pronged submission. First, he contended that all statutory
requirements for initiating acquisition, particularly the issuance of notice to
the Church Trust, had been duly complied with. Second, he argued that the
Church Trust, by failing to proactively develop the Subject Land or submit
a proposal in the prescribed format Under Regulation 33(10) of the DCPR
2034, had effectively waived its preferential right. On this basis, he asserted
that the acquisition proceedings were valid and did not merit interference.
E.3.1.1 No Notice-cum-Invitation for Redevelopment
30. Regarding the first strand of these claims, we hasten to observe at the
very outset that there is no notice or invitation Under Section 13 on the
record that was issued to the Church Trust.
31. The only communication relied upon by the Appellants is the Deputy
Collector, SRA forwarding the Section 3C(1) Declaration to the Church
Trust. We have already held that such notice does not amount to compliance
with the procedure contemplated Under Section 13 of the Slums Act.
32. The inevitable consequence of the SRA's omission to issue a separate
notice Under Section 13 is that the Church Trust's preferential right to
redevelop the Subject Land remains intact. In the absence of a valid notice
or opportunity, there existed no legal basis to extinguish this right. The
acquisition was, therefore, vitiated in law, falling afoul of the prescribed
procedure."
20. It is thus the clear position in law that under section 13(1) of the Slums Act
as falling under the provisions of Chapter 1-A, the jurisdiction with the Chief
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4.WP.942.2024.DOC
Executive Officer, Slum Rehabilitation Authority would trigger only when the land
is declared as slum rehabilitation area. The Chief Executive Officer would have
jurisdiction to make representation to the State Government under Section 14(1)
of the Act to enable the SRA to carry out development under the slum
rehabilitation scheme, only when the area is a slum rehabilitation area as explicitly
provided under sub-section (1) of Section 14. As consistently held by this Court in
Indian Cork Mills Pvt. Ltd. vs. State of Maharashtra (supra) , as also the decision in
Bishop John Rodrigues vs. The State of Maharashtra (supra), it was necessary that
the owner of the land (petitioner) be granted an opportunity of being put to a
notice that the petitioner would be required to submit a proposal after declaration
of land as a slum rehabilitation area, so as to consider the owners's inclination to
redevelop his owner land and ameliorate the slums and only in the event, within
120 days of such notice, the owner was not to take steps to submit a proposal for
redevelopment, the jurisdiction to acquire the land could be exercised by the CEO
SRA/State Government. Thus, in recognizing the pre-emptory right of the owner
to redevelop the land and only if the landholders or occupants of such area do not
come forward within a time period 120 days from the issuance of such notice as
incorporated by virtue of amendment by the Maharashtra Act XXVIII of 2018,
only in that event, when SRA can order to determine to redevelop the land by
entrusting it to any agency and /or further steps can be taken to acquire the land.
This right created by law in favour of the owner under Section 13 (1) that an
opportunity be granted to the owners in terms of Section 13(1) is necessarily
required to be recognised, without which the provision as made in the statute
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4.WP.942.2024.DOC
conferring such rights would be meaningless. The Courts have also held that the
preferential right for redevelopment of the land under slums is vested with the
owners/landholders and/or occupants in view of a conditional power/authority
created with the SRA to undertake redevelopment of the slum rehabilitation area in
a twofold manner, firstly by exercising power under Section 13 (1) and (2) which is
to redevelop the land by entrusting it to any agency on a failure of the landholder
or the occupant in not coming forward within a reasonable time with a scheme for
re-development; and when an application of Section 13(1) and (2) do not fetch any
result by re-developing or carrying out development under the slum rehabilitation
scheme in any slum rehabilitation area by resorting to acquisition of the land under
Section 14 as applicable with modification under Chapter I-A. It is also clearly held
that from the legislative scheme of the amended provisions, it is clear that the rights
so conferred under such provisions on the owner/landholder/occupant cannot be
usurped directly by operating the acquisition machinery, simply because such
power exists on the statute book. It is further held that the exercise of such power
within the scheme of Chapter I-A is required to be resorted by due adherence to
the provisions as contained therein, which have created and recognized the
legitimate rights in the owners, landholders and occupants to undertake
redevelopment. In the facts of the present case such principles of law which are
now confirmed by the Supreme Court in Saldanha Real Estate Pvt. Ltd. vs. Bishop
John Rodriques (supra) has been completely given a go-bye in acquisition of land
under the scheme of Section 14 without recognition of preferential rights cannot be
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4.WP.942.2024.DOC
recognized. In this view of the matter, the acquisition would be required to be
quashed and set aside.
21. Before parting, we may observe that although there is a dispute on the title
of the land between the petitioners in the first and second Writ Petitions, such inter
se disputes at all material times need to be subject matter of appropriate
proceedings, as insofar as the assertion of both the petitioners in assailing the
acquisition, the petitioners are asserting such contentions as legally permissible, in
one voice, i.e. a contention of preferential rights, lack of notice etc, as observed as
clearly held in the decisions of Supreme Court in Indian Cork Mills Pvt. Ltd.
(supra), Bishop John Rodriques (supra), Tarabai Nagar Cooperative Housing
Society (Proposed) vs. State of Maharashtra & Ors., Saldanha Real Estate Pvt. Ltd.
(supra). Thus, any inter se rights between both these petitioners are not subject
matter of adjudication in the present proceedings. Our aforesaid discussion is
confined only in regard to the decision of the Chief Executive Officer, SRA as also
the State Government in acquiring the land for redevelopment of slums.
22. As a result of the above discussion, the petition is allowed in terms of the
following order:
ORDER
(i) The acquisition of land in question bearing Old Survey No.81, Hissa No.
(part), CTS No.270 (part) admeasuring 1,201 square yards situated at Bhandup
Village Road, Opposite Bhatia Hospital, Mumbai-400078 vide notification dated
13th October 2015 is quashed and set aside, being arbitrary, illegal and contrary to
the decisions of this Court in Indian Cork Mills Pvt. Ltd. (supra) , Bishop John
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4.WP.942.2024.DOC
Rodriques (supra), Tarabai Nagar Cooperative Housing Society (Proposed) vs. State of
Maharashtra & Ors., Saldanha Real Estate Pvt. Ltd. (supra);
(ii) It is, however, open to the SRA to issue appropriate notice to the Petitioners
as mandated by law recognizing the Petitioners' preferential right and consequent
to the said notice, further appropriate procedure for redevelopment of the slums
shall be resorted;
(iii) Rule is made absolute in above terms;
(iv) Writ Petition No.942 of 2024, Writ Petition No.1923 of 2019 and Interim
Application No.2702 of 2024 are disposed of in the above terms.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
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