Bombay High Court
A. H. Wadia Trust And 4 Ors vs State Of Maharashtra And 7 Ors on 24 March, 2023
Author: R.D. Dhanuka
Bench: R.D. Dhanuka, M.M. Sathaye
WP 2284 of 2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2284 OF 2018
1. A.H. Wadia Trust )
2. Jehangir Wadia )
3. Muncherji Nusserwanji Munchrji )
Cama )
4. Adil Wadia )
5. Sheroo Wadia )
All of Mumbai, Adult Indian )
Inhabitants Trustees of the )
"A.H. Wadia Trust", a Public Trust )
duly registered under the provisions )
of the Bombay Public Trusts Act,1950)
and having their office address at )
70, Dr.V.B. Gandhi Marg, )
Mumbai - 400 023 )...Petitioners
Versus
1. State of Maharashtra )
through the Govt. Pleader, High Court)
having his office at PWD Building )
High Court, Bombay )
2. Housing Department )
Government of Maharashtra )
through its Secretary, having its )
office address at Mantralaya, )
Mumbai - 400 032 )
3. Additional Collector (ENC) Reml )
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Eastern Suburban District, )
having his office address at )
Industrial Assurance Building, )
1st Floor, Opp. Churchgate Station )
Mumbai - 400 020 )
4. Raza Ekta Cooperative Housing )
Society (Proposed) )
Through Chief Promoter Mr. Adib-Ur )
Rahaman Shaikh having their )
Address at Kallu Compound 258 )
Bazar Ward, Near Mehboob Suhani )
Masjid, Kurla (W), Mumbai - 400 070)
5. Gulam Mohd. Yunus Allarakha )
Maulabux of Mumbai,Adult Indian )
Inhabitant, having his office at )
Kurla Compound, Bazar Ward, )
258/2, New Mill Road, Kurla (W), )
Mumbai - 400 070 )
6. Slum Rehabilitation Authority )
Adminstrative Building, )
Anant Kanekar Marg, Bandra (E), )
Mumbai - 400 051 )
7. Chief Executive Officer, S.R.A. )
Administrative Building, )
Anant Kanekar Marg, Bandra (E) )
Mumbai - 400 051 )
8. Deputy Collector, Eastern Suburbs )
SRA, Administration Building )
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Anant Kanekar Marg, Bandra (East) )
Mumbai - 400 051 )...Respondents
Mr. Atul Damle, Senior Advocate a/w. Mr. Chaitanya Chavan, Mr.
Nil Patel, Mr. Samir Panwalkar and Mr. Amit Joshi i/by M/s. L.R. &
Associates, Advocates for the Petitioners.
Mr. Kedar Dighe, AGP, State, Advocate for Respondent Nos. 1 to 3
and 8
Mr. V.T. Dubey, Advocate for Respondent No.4
Mr. Vijay Patil, Advocate for the Respondent Nos.6 to 8
CORAM:- R.D. DHANUKA &
M.M. SATHAYE, JJ.
RESERVED ON: 20TH FEBRUARY, 2023.
PRONOUNCED ON: 24 MARCH, 2023
JUDGMENT (PER R.D. DHANUKA J.)
1. By this Petition filed under Article 226 of the Constitution of India, the Petitioners have prayed for a Writ of Certiorari for quashing and setting aside the Notification dated 18th September, 2017 issued by Respondent Nos. 1 and 2 under the proviso to Section 14(1) read with paragraph A of sub-clause (i) of clause (c) of Section 3D of Chapter 1A of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short 'the Slum Act'), and subsequent Report dated 28 th August, 2013 submitted by Tikam page 3 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc Respondent No.7 along with the purportedly issued the subsequent Show Cause Notice No. SRA/DC/T/D-4/Raza Ekta/ Hearing/ 2013/6 dated 22nd April, 2013.
2. The Petitioners have also prayed for a writ of Certiorari for quashing and setting aside the Report dated 27th December, 2010 submitted by Respondent No.3 in respect of the said Show Cause Notice dated 22 nd April, 2010 issued under the proviso to the Slum Act and the Notification dated 28th August, 2015 issued by Respondent No.7.
3. The Petitioners also seek a declaration that the above referred documents are in contravention of law and in breach of principles of natural justice.
4. By way of amendment, the Petitioners seek an alternate relief that in the event of this Court upholding/refusing to decide/adjudicate upon the validity of the said 3C Notification, this Court shall issue necessary directions, order, writ to Respondent Nos. 6 and 7 to call upon the Petitioners to submit a Slum Rehabilitation Scheme in respect of the Trust Land in accordance with the law by recognizing the Petitioners' preferential right.
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5. Some of the relevant facts for the purpose of deciding the Petition, are as under:
6. The Petitioners are the owners of the Land bearing CTS No.387, 387/1 to 34 admeasuring 1177.40 sq.mtrs. lying and situated at Village Kurla, Taluka Kurla, Mumbai Suburban District. (for short "the said writ land".)
7. On 22nd January, 1976 the said area was declared as a slum area by a Notification issued by the Authority. On 22 nd April, 2010, a Show Cause Notice was issued by Respondent No.3 to Petitioners to show cause as to why proposal for acquisition should not be submitted to the Respondent No.1 for approval. The Petitioners were granted hearing by the Authority in pursuance to the said Show Cause Notice dated 22nd April, 2010.
8. On 9th June, 2011, the Petitioners filed Writ Petition bearing Writ Petition No. 583/2011 challenging the show cause notice dated 22nd April, 2010 and also the report. Initially, this Court directed the parties to maintain status quo. On 13th October, 2011,the said Writ Petition came to be withdrawn with liberty to file a fresh one as and when Tikam page 5 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc notification of acquisition would be published. It is the case of the Petitioners that on 20th October, 2013, the Respondent No.4 through is Chief Promoter filed application before Respondent No.3 for acquiring the writ property.
9. It is the case of the Petitioners that on 9 th April, 2013, the hearing conducted by Respondent No.7 wherein the Petitioners were not present as no notice was served upon them. The said notice was served upon the erstwhile Advocates of the Petitioners, who according to the Petitioners had returned papers. It is the case of the Petitioners that on 22nd April, 2013, Respondent No.8 purportedly issued another notice, calling upon the Petitioners and their erstwhile Advocates to remain present for hearing to be held on 7 th May, 2013.
10. On 7th May, 2013, the hearing was held before Respondent No.7. In the Roznama it was recorded that a notice was issued at the Petitioners' Fort address as well as their erstwhile Advocates yet none remained present. On 28 th August, 2013, Respondent No.7 forwarded a subsequent report recommending acquisition of the writ property. On 30th April,2014, Respondent No.1 issued a letter to the Tikam page 6 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc Respondent No.7 demanding explanation on Notices purportedly served on Petitioner Trust. On 5 th November, 2014 and 18th November, 2014, Respondent No.8 issued a letter informing Respondent No.4 that survey of the Trust Land would be conducted on 10 th November, 2014. No notice was given to the Petitioners. The survey of the writ property was conducted.
11. On 15th December, 2014, Respondent No.1 issued an internal letter stating that the Trust Land can be acquired and the Slum Rehabilitation Scheme of 33(10) of DCR can be implemented.
12. On 18th September, 2017 and 25th January, 2018, the Petitioners were served with a Compensation Notice, calling upon the Petitioners to submit relevant documents to Respondent No.8 to enable him to calculate the quantum of compensation to be awarded in lieu of acquisition of the writ property.
13. It is the case of the Petitioners that only through the Compensation Notice, the Petitioners became aware of the impugned Notification dated 18 th September, 2017 under Tikam page 7 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc which the writ property came to be acquired under the provisions of the Slums Act. The Petitioners accordingly filed this petition for various reliefs. The Petitioners applied for leave to carry out various amendments in the Writ Petition, which was granted by this Court. Writ Petition is opposed by the Respondents by filing an Affidavit in Reply.
14. Mr. Damle, learned Senior Counsel for the Petitioners invited our attention to various documents annexed to the Petition and also the pleadings filed by the Respondents and submitted that the impugned Notification dated 18th September, 2017 is in breach of the principles of natural justice and in violation of the Petitioners' preferential right to redevelop the said land. The said Notification was issued on 18th September, 2017 by the Slum Rehabilitation Authority (hereinafter referred to as "SRA"), to implement the Slum Rehabilitation Scheme in regard to the Slum Rehabilitation Area as described therein. It is submitted that the said impugned Notification is issued without following the legislative intent as enshrined in Section 13 r/w. 3B(2) r/w. Section 3D (b)(iii) of Chapter 1A of the Slum Act. Respondent Nos. 6 to 8 were under the mandatory obligation to call upon Tikam page 8 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc the Petitioners to submit a scheme of rehabilitation with regards to the writ property before proceeding with acquisition thereof.
15. It is submitted by the learned Senior Counsel that SRA has failed to give an opportunity to the Petitioners for submitting a scheme as stipulated under Section 13 r/w 3B (2) r/w. Section 3D (b) (iii) of Chapter 1A of the Slum Act which is required to be given after a piece of land is declared as Slum Rehabilitation Area. The Petitioners were called upon to submit a Scheme in accordance with the provisions.
16. It is submitted by the learned Senior Counsel that the SRA did not pass any order determining the rights of the Petitioners to redevelop the writ property and did not pass any order communicating to the Petitioners under proviso to Section 13(i) of the Slum Act. The SRA was bound to scrupulously follow the provisions of the Slum Act before taking any steps for acquiring the writ property. He submitted that Section 3D of Chapter 1A of Slum Act is applicable only upon the area declared as Slum Rehabilitation Area. In this case, the Notification under Section 3C came to be issued only on 31 st August, 2015 which Tikam page 9 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc was much prior to passing of the impugned Award dated 31 st August, 2015.
17. It is submitted by the learned Senior Counsel that the action of the SRA of treating Section 3C of Slum Act as mere formality is illegal, perverse and is liable to be quashed and set aside. Failure of issuance of Notices on the Petitioners before formulating the impugned report dated 28 th August, 2013 (recommending acquisition) and impugned acquisition notification under section 14(1) of Chapter 1A of the Slum Act has vitiated the entire acquisition proceeding.
18. The impugned Notification dated 31 st August, 2015 declaring the writ property as slum rehabilitation area was issued without issuing any notice to the Petitioners in any manner whatsoever.
19. Learned Senior Counsel placed reliance on the judgment of the Supreme Court in case of Prabin Ram Phukan and Another Vs. State of Assam and Others (2015) 3 Supreme Court Cases 605 [Paragraph Nos. 24 to 27], and Municipal Corporation of Greater Mumbai Vs. Abhilash Lal and Others (2020) 13 Supreme Court Cases 234 [Paragraph 35]. Learned Senior Counsel also placed Tikam page 10 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc reliance on the order dated 9 th June, 2011 passed by the this Court in Writ Petition No. 583 of 2011 in case of Jehangir Wadia & Ors. Vs. The State of Maharashtra and Ors. in support of the submission that before a valid order under Section 14 of the Maharashtra Slum Areas (Improvement, Clearance and redevelopment) Act, 1971 can be passed the requirement of Section 5 has to be complied with, failing which the notification under Section 14 would not be valid.
20. It is submitted by the Learned Senior Counsel that the Learned Advocate, who was representing the Petitioners while the first notice was issued to the Petitioners, had returned the papers and not communicated the Petitioners while the second notice was issued. He submitted that the learned Advocate representing the Petitioners, as a matter of fact, was not even served the second notice. He submitted that the Panchnama would indicate that so far as other parties were concerned, notices were served upon them personally. Whereas, in case of Petitioners, the notice was alleged to have been pasted on site.
21. It is submitted that the SRA had wrongly informed the State Government on 3rd July, 2014 that the notice was Tikam page 11 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc served upon the Petitioners as per Section 13D of the Slum Act. He submitted that no documents were produced by the SRA regarding pasting of notice at the Slum Site. It is submitted that the service of notice was required to be effected in a particular manner. This service could not be effected in any other manner.
22. Mr. Patil, learned counsel for the SRA, on the other hand, invited our attention to various documents annexed by the SRA in its affidavit. He also invited our attention to the averments made by the Petitioners in paragraph Nos. 5 and 6 of the Affidavit in Rejoinder. It is submitted that even pursuant to three notifications issued by the Collector to the Petitioners, the Petitioners never submitted any scheme for redevelopment of the writ property. The Petitioners wanted to sell the writ property in favour of the third party and did not want to redevelop the writ property. He submitted that on 27th December, 2010, admittedly the Petitioners were heard by the SRA. Even at that stage, the Petitioners did not submit any scheme for redevelopment of the writ property. No proposals were given by the Petitioners.
23. It is submitted by the learned counsel for the SRA Tikam page 12 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc that the notice was sent by post upon Petitioner No.1 as well as Petitioner No.2. The notice was pasted on the Slum site. He submitted that there is no straight jacket formula applicable while following the principles of natural justice. He relied upon the judgment of the Supreme Court in case of M/s. Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati and Ors.[2015 AIR SCW3884] (Paragraph Nos. 29, 30 and 36). He submitted that award has already been made by the Authority in respect of the writ property.
24. Learned counsel for the SRA invited our attention to the stand taken by the Petitioners themselves in the notice dated 28th November, 2018 addressed to their advocate through the Deputy Collector, SRA informing that the Trust who is involved in charitable activities, has filed Originating Suit No.379 of 2016 for seeking appropriate direction and opinion of this Court in respect of interpretation of such clauses of the last Will and Testament of Ardeseer Hormusjee Wadia (which is a private instrument, defining functions of Trust) so as to enable the Trust to construct its land by redevelopment. He submitted that the said Originating Tikam page 13 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc Summons filed by the Petitioners for seeking an appropriate directions/opinion and advise on the construction of the such clauses of the last Will and Testament of Ardeseer Hormusjee Wadia has still pending before this Court. He submitted that this aspect has already been considered by this Court in paragraph 20 of the judgment delivered by this Court in the case of the Petitioners themselves, raising identical issue in Writ Petition (L) No. 19626 of 2022.
25. Learned counsel also invited our attention to the averments made by the Petitioners in paragraph 6 of the Writ Petition stating that the Will is silent on the aspect of developing the Trust lands on profit making basis and in particular does not authorize the Trustees to carry out construction on its lands. In view of such exigency and ambiguity emanating from the said Will , the Trustees of the said Trust has approached this Court by filing an Originating Summons being Suit No. 379/2016, inter alia seeking direction/opinion of this Court in respect of interpretation of such clauses of the Will, which would permit the Trustees to redevelop the Trust lands on profit making basis.
26. It is submitted that, even otherwise, the Petitioners Tikam page 14 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc could not have submitted a scheme, in view of the pendency of the said Originating Summons before this Court. The learned counsel for the SRA also placed reliance on the letter dated 18th May, 2022 addressed by the Advocates, representing the Petitioners to the Chief Executive Officer, SRA and Tahasildar, SRA stating that the Petitioner Trust has filed Originating Summons before this Court which is pending and once the Trust is permitted by this Court, the Trust would redevelop the said property by submitting a scheme for rehabilitation under the Slum Act.
27. Mr. Damle, learned Senior Counsel does not dispute that the said Originating Summons filed by the Petitioners is still pending.
REASONS AND CONCLUSIONS:
28. It is not in dispute that this Court has already considered the factum of the pendency of the said Originating Summons in the order passed by this Court and judgment delivered in Writ Petition (L) No. 19626 of 2022.
29. Learned counsel for the SRA also placed reliance on the judgment of this Court in the case of Deena Pramod Baldota Vs. State of Maharashtra and Ors. in W.P. (L) Tikam page 15 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc No. 19626 of 2022 delivered on 17th November, 2022.
30. The Petitioners have challenged the Notification issued by the SRA for acquiring the writ property of the Petitioners on the ground that no notice was served upon the Petitioners when the second report was submitted and before passing the impugned notification. The grievance of the Petitioners is that in view of the no notice being served by the SRA upon the Petitioners, the Petitioners could not get an opportunity of submitting a scheme for redevelopment of the writ property by exercising preferential rights of the Petitioners to submit a scheme under the provisions of the Slum Act.
31. The question that arises for consideration of this Court is to whether the rights of Petitioners are prejudiced if this Court comes to the conclusion that notice and second report were not served upon the Petitioners.
32. The purpose of issuance of notice upon the Petitioners was to give an opportunity to the Petitioners to submit a scheme for redevelopment by exercising the preferential rights.
33. This Court has to consider that even if notice would Tikam page 16 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc have been served by the Respondents, as sought to be canvassed by the Petitioners, whether the Petitioners could have submitted a scheme for redevelopment of the writ property in view of the pendency of the Originating Summons for interpretation / guidance of this Court in respect of the Will and Testament which would deal with all the properties of the Trust including the writ property. Admittedly, the averments made in the petition and also the correspondence placed on record by SRA and also by the Petitioners itself would clearly indicate that the Petitioners have submitted a Scheme for redevelopment only upon disposal of the said Originating Summons and upon a guidance in respect of interpretation of such clauses of the said Will and Testament which is a subject matter of the said Originating Summons.
34. Till the Petitioners would have been allowed to carry out any development or to sell the said property including the writ property by adjudicating upon in the said Originating Summon, the Petitioner admittedly could not have submitted any scheme for redevelopment. We have perused the order passed in WP (L) No. 19626 of 2022.
35. This Court delivered a judgment on 9th January, Tikam page 17 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc 2023 in Writ Petition No. 1347 of 2019 in case of A.H. Wadia Trust and Ors. Vs. State of Maharashtra and Others, inter alia, praying for a writ of certiorari for quashing and setting aside the similar order and the notification issued by SRA on similar grounds. This Court in the said judgment has held that there is no straight jacket formula applicable while following the principles of natural justice. The Court has to consider whether the party who has alleged violation of principles of natural justice was at all affected or any prejudice is caused to him in view of the allegation of violation of principles of natural justice or not.
36. This Court considered the pendency of the Originating Summons filed by the Petitioners in this Court which is also relied upon by the Petitioners in this Court. This Court, accordingly, held that the Petitioners are not in a position to take any decision whether to redevelop the writ property or not, in view of the pendency of Originating Summons for seeking direction/opinion of this Court in respect of interpretation of such clauses of the said Will before this Court. This Court in the said judgment held that since the Petitioners did not show whether they were entitled Tikam page 18 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc to redevelop the writ property till date, the petitioners cannot be allowed to take a stand that they were not granted any reasonable time to submit a proposal for redevelopment.
37. Mr. Damle, learned Senior Counsel for the Petitioners, has not distinguished the said judgment delivered by this Court in case of Petitioners themselves dismissing the said Writ Petition on the similar contents raised in the said writ petition. In our view, the judgment of this Court in case of A.H. Wadia Trust (supra) passed in Writ Petition No. 1347 of 2019 is clearly applicable to the facts of this Case. We do not propose to take any different view in the present matter.
38. The Supreme Court in the case of M/s. Dharampal Satyapal Ltd. (supra) has held that principles of natural justice are very flexible principles and canot be applied in any straight-jacket formula. It all depends upon the kind of functions performed and to the extent which a person is likely to be affected. The principles laid down by the Supreme Court in case of M/s. Dharampal Satyapal Ltd. (supra) would not apply to the facts of the present case.
39. In paragraph 36 of the said judgment it is held by Tikam page 19 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc the Supreme Court that even when we find that there is an infraction of principles of natural justice, the Court has to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. The Supreme Court held that such an exercise would be totally futile .
40. In so far as the judgment of the Supreme Court in case of Prabin Ram Phukan and Anr. (supra.), relied by Mr. Damale, Learned Senior Counsel for the Petitioners is concerned, it is held by the Supreme Court that no person can be deprived by State without strictly following procedure laid down by the Hon'ble Supreme Court. Since the Petitioner are not in position of submitting any scheme even at this stage for redevelopment, the said judgment would not assist the case of the Petitioners.
41. In so far as the judgment of the Supreme Court in the case of Municipal Corporation of Greater Mumbai (supra) is concerned, there is no dispute upon preposition of law that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all. The Tikam page 20 of 21 ::: Uploaded on - 24/03/2023 ::: Downloaded on - 25/03/2023 13:50:38 ::: WP 2284 of 2018.doc said judgment would not advance the case of the Petitioners on the ground that even if this Court accepted the submissions of the Petitioners that notice was not issued upon the Petitioners as prescribed in law, since Petitioners could not have submitted a scheme for redevelopment, the judgment of the Supreme Court in the case of Municipal Corporation of Greater Mumbai Vs. Abhilash Lal and Ors. (supra) would not assist the case of the Petitioners in this petition.
42. In our view, no case is made out for interference to quash and set aside the Impugned Notification and for quashing and setting aside the impugned orders. We, accordingly, pass the following order.
ORDER
(i) Writ Petition No. 2284 of 2018 is dismissed.
(ii) There shall be no order as to the costs.
(M.M. SATHAYE, J.) ( R.D.DHANUKA, J. )
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