Bombay High Court
M/S. Twin And Deccan Builders And Anr vs State Of Maharashtra And 4 Ors on 31 July, 2015
Author: G.S.Kulkarni
Bench: S.C.Dharmadhikari, G.S.Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.747 OF 2012
1. M/s Twin & Deccan Builders }
a Partnership Firm duly registered under
the provisions of Partnership Act,
and having its office at Twin Complex, }
Opp Marol Fire Brigade MM Road,
Andheri (E) Mumbai-400 059
}
2. Mr.Iliyas Patel
Adult Bombay Indian Inhabitant
3) Mr.Abdul Karim Abdul Rahim }
Both partners of M/s Twin & Deccan
Builders and having their office at
Twin Complex, Opp Marol Fire }
Brigade MM Road, Andheri (E)
Mumbai-400 069 } .. Petitioners
vs
1. State of Maharashtra }
(Notice to be served on
Government Pleader, High Court O.S.)
Mumbai-400 032. }
2. The Deputy Collector
(Encroachment/Removal) having office }
at Grih Nirman Bhavan, Bandra (E)
Mumbai-400 051.
}
3. The Additional Collector
(Encroachment/Removal) and
Competent Authority Mumbai
Suburban District (Western Suburban) }
having his office at New Administrative
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Building, 7th Floor, Bandra (E)
Mumbai-400 051. }
4. The Principal Secretary to the
Government, Housing Department. }
Government of Maharashtra, Mantralaya,
Mumbai-400 032.
5. Gaodevi Ekta Coop Hsg.Scty Ltd }
having its office at CTS No.248/1 to
36 of village Andheri Taluka
Andheri Mumbai Suburban District }
Andheri (E) Mumbai-400 069
ig .. Respondents
with
WRIT PETITION NO.749 OF 2012
1. Framoze Sorabji Dadachandani }
Adult, Indian Inhabitant of Bombay
residing at Rose Minar Chapel Road,
Bandra (W) Mumbai-400 050 }
2. Minoo Fram Merchant
Adult, Indian Inhabitant of Bombay
residing at 602, Shiv Shakti, }
Caesar Road, Andheri (W)
Mumbai-400 058. }.. Petitioners
vs
1. State of Maharashtra }
(Notice to be served on Government
Pleader, High Court, (O.S.)
Mumbai-400 032. }
2. The Deputy Collector
(Encroachment/Removal)
having office at Grih Nirman }
Bhavan, Bandra (E) Mumbai-400 051
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3. The Additional Collector }
(Encroachment/Removal) and
Competent Authority, Mumbai
Suburban District (Western Suburban) }
having his office at New Administrative
Building, 7th Floor, Bandra (E)
Mumbai-400 051.
}
4. The Principal Secretary to the
Government, Housing Department,
Government of Maharashtra,
Mantralaya, Mumbai-400 001. }
5. Gaodevi Ekta Co-op Hsg.Society Ltd
having its office at CTS Nop.248/1 to 36 }
of village Andheri Taluka Andheri
Mumbai Suburban District,
Andheri (E) Mumbai. }..Respondents
....
Mr.Ashish Kamath a/w Mr.C.N.Gole Advocates
for Petitioners
Mr.Bharat Mehta Assistant Government Pleader
for Respondent nos.1 to 4 in W.P.No.749/2012
Mr.Umashankar Upadhyay Assistant Government Pleader
for Respondent nos.1 to 4 in W.P. No.747/2012 ...
CORAM: S.C.DHARMADHIKARI AND
G.S.KULKARNI, J
JUDGMENT RESERVED ON: 26TH JUNE 2015
JUDGMENT PRONOUNCED ON: 31ST JULY, 2015
JUDGMENT :(Per G.S.Kulkarni, J) Rule in both petitions. Learned counsel for the respondent nos. 1 to 4 waive service. Respondent no.5 is a formal party. By consent of the learned counsel appearing for the parties, and at their request, taken up ::: Downloaded on - 31/07/2015 23:58:13 ::: Rng 4 wp747.749.12.doc for final hearing.
1. In these writ petitions under Article 226 of the Constitution of India the petitioners assail the constitutional validity of sections 14 and 17 of the Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act,1971 (for short 'Slum Act'), the proceedings initiated by respondent nos.1 to 4 for acquisition of the petitioner's land under the provisions of section 14 (1) of the Slum Act, the notification dated 1st September 2010 issued by respondent no.4 being a declaration to acquire the land of the petitioners under section 14 of the Slum Act and the Award dated 24th August 2011 passed by the respondent no.2 under section 17 of the Slum Act.
2. As regards the prayers challenging the constitutional validity of section 14 and 17 of the Slum Act these prayers do not survive in view of the decision of the Division Bench of this Court upholding the constitutional validity of these provisions in the case of Sara D'Mello vs State of Maharashtra reported in 2013 (5) ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 5 wp747.749.12.doc Bombay Cases Reporter 167. The petitioners are pressing these petitions for the other reliefs as prayed for. As the challenge as raised in these petitions arise out of the same acquisition proceedings and the reliefs prayed for are similar the parties agree that these petitions can be disposed of by this common judgment.
Facts :
WRIT PETITION NO.747 OF 2012
3. The petitioners aver that G.B.Daruwalla and others were the owners of land bearing C.T.S.No.248/1 to 598 village Andheri, Taluka Andheri, Mumbai Suburban District admeasuring 19338.50 sq.meters. (for short 'the said land'). G.B.Daruwalla and others by a registered Deed of Conveyance dated 1st April 1986 transferred their right, title and interest in the said land in favour of one Mr.Rajendra Parikh. The legal heirs of Mr.Rajendra Parikh by a registered Deed of Conveyance dated 14th July 2006 transferred their right, title and interest in the said land in favour of petitioner no.1. After the petitioners purchased the said land it came to the knowledge of the petitioners that certain slum-dwellers residing on the adjoining plot ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 6 wp747.749.12.doc of land had formed a co-operative housing society namely respondent no.5 so as to implement a slum scheme through some Developers. The petitioners, therefore addressed a letter dated 28th July 2006 to the Chief Executive Officer of the Slum Rehabilitation Authority informing that the petitioners have purchased the said land. The petitioners by their further letter informed the Chief Executive Officer that certain slum lords are trying to obstruct the development of the petitioner's land and requested respondent nos.2 and 3 not to proceed with the land acquisition proposal initiated at the behest of respondent no.5. The petitioners addressed a legal notice dated 2nd August 2007 in this regard inter alia stating that the petitioners are themselves ready and willing to implement the slum scheme.
4. It is the petitioner's case that the slum dwellers without consent of the earlier owners as also the petitioners who are the present owners have encroached upon the petitioners' property and have erected structures and that these occupants were rank ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 7 wp747.749.12.doc tress-passers having no legal right, title and interest in the said property. As the petitioners are Builders and Developers, the petitioners had submitted a proposal to the Slum Rehabilitation Authority (for short S.R.A.) for Slum redevelopment in respect of a larger land bearing C.T.S.No.248 (part), 248/500 to 550, 552, 557, 560 to 587 and 249 (part) of village Andheri Mumbai Suburban District on or about 11th July 2006. The slum dwellers residing on land bearing C.T.S.No.248 (part), 248/1 to 248/499 had also requested the petitioners to rehabilitate them and implement the slum scheme. The Petitioners therefore had submitted a amalgamated proposal on 29th August 2007 to the S.R.A. As this proposal was found in order, the petitioners had taken further steps to pay the Letter of Intent scrutiny fees. However, certain slum dwellers residing on C.T.S.No.248/1 to 36, which forms part of the petitioner's property have formed respondent no.5 cooperative society and appeared to have made a representation to the respondent no.3 for acquisition of the said land under the provisions of Slum Act. Respondent no.3 without supplying copy of the written ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 8 wp747.749.12.doc representation of respondent no.5 issued a show cause notice dated 5th November 2007 in the name of original owners calling upon them to show cause why the said land which was being acquired along with adjoining land shall not be acquired under section 14 of the Act. An independent show cause notice was not issued to the petitioners.
5. The petitioners therefore, by their letter dated 20th November 2007 informed respondent no.3 of having purchased the said land and that a show cause notice ought to have been issued to the petitioners. In pursuance thereof, respondent no.3 by his letter dated 9th January 2008, however, permitted the petitioners to appear at the hearing to be held on 31st January, 2008 and participate in the land acquisition proceedings. The respondent no.3 after hearing all the interested parties prepared a report and submitted the same to the respondent no.4. However, a copy of this report was not furnished to the petitioners. By a letter dated 6/14 th November, 2008 respondent no.4 had sought information from ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 9 wp747.749.12.doc respondent no.3 in regard to the redevelopment proposal pending with S.R.A including the petitioner's proposal in respect of a slum rehabilitation scheme. The petitioners have averred that the respondents ought not to have proceeded with the acquisition proceedings when a slum rehabilitation proposal was submitted by the petitioners and the same was pending consideration of the S.R.A. and that this was in consonance with the policy being followed by the respondent nos.3 and 4. The petitioners have averred that once such a slum rehabilitation and at their behest was pending consideration of the S.R.A there was no question of any public purpose being involved so as to acquire the petitioner's land under the Slum Act and therefore acquisition proceedings ought to have been dropped. However, ignoring all this, respondent nos.3 and 4 proceeded to issue land acquisition notification dated 1st September, 2010 under section 14 of the Slum Act and the same came to be published in the Government Gazette dated 3rd September, 2010. The public purpose being sought to be achieved through the said acquisition notification was already under process ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 10 wp747.749.12.doc and pending consideration by virtue of a slum rehabilitation scheme as submitted by the petitioners in respect of the said land along with the adjoining plots of land for which occupants had already given their consent. The acquisition was thus malafide and at the behest of the respondent no.5 in the interest of another Developer. The petitioners thereafter by a notice issued by respondent no.2 were called upon to lodge their claim for compensation and submitted their reply to the same. The respondent no.2 thereafter passed an Award dated 24th August 2011 under section 11 of the Slum Act and awarded a meager compensation. In these circumstances, on this background the petitioners have filed this Petition assailing the action of the respondent nos. 1 to 4 to acquire the lands in question.
WRIT PETITION NO.749 OF 2012
6. This writ petition has been filed by the owners of land bearing CTS No.247 (pt) 247/1 to 18, and 35 to 60 of village Andheri Mumbai Suburban District. The challenge as raised in this ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 11 wp747.749.12.doc petition is identical to the one as raised in writ petition No.747 of 2012 to which we have extensively dealt above. The respondent no.5 is a society of slum dwellers which is also respondent in writ petition No.747 of 2012 at whose behest the land of the petitioners as also land in question in writ petition No.747 of 2012 was sought to be acquired. The petitioners were issued a show cause notice dated 5 th November, 2007 under the provisions of section 14 (1) of the Slum Act calling upon the petitioners to show cause why the land shall not be acquired. The show cause notice was replied by the petitioners vide their reply dated 22nd November, 2007 who informed that the petitioners are legal heirs of Shri Phirozshah Hirmani Baliwala and three others and that they are ready and willing to redevelop the said land as also were ready and willing to rehabilitate all eligible slum dwellers. However, the petitioners did not submit any documents in that regard. This contention was similar to the one as raised by the petitioners in writ petition No.747 of 2012.
7. These writ petitions though were filed on 12th ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 12 wp747.749.12.doc December 2011 and served on respondent nos.2 to 4 no steps were taken by the respondents to file a counter. We therefore, proceeded to hear the writ petitions on 25th June 2015, when we heard learned counsel for the parties. We also considered the request of the learned counsel for the petitioners that the petitioners wish to rely on some decisions of this Court involving similar controversy. We therefore adjourned these cases to be heard on 26 th June, 2015. To to enable us to deliver a judgment, we directed the learned Assistant Government Pleader to produce original records pertaining to the land acquisition in question, to be filed in the Registry. Accordingly, the learned Assistant Government Pleader has submitted the original record of the land acquisition. We have perused the original files pertaining to the land acquisition in question.
7. Learned counsel for the petitioners in support of the challenge as raised in the writ petition has made the following submissions :
(i) The acquisition in question is not for a public purpose but, is ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 13 wp747.749.12.doc for the benefit of respondent no.5.
(ii) The land could not have been acquired when the petitioners themselves were interested to develop the land and had submitted a scheme and for that purpose and a amalgamated slum rehabilitation scheme was pending consideration of the S.R.A;
(iii) Respondent no.3 has violated the procedure in acquisition in as much as no notice was issued to the petitioners in writ petition No.747 of 2012 who had acquired ownership of the said land in the year 2006.
(iv) The acquisition needs to be set aside as the grounds on which the Division Bench of this Court in the case of Reserve Bank Employees Snehadara Cooperative Housing society's case. (Writ petition No.91 of 2002; decided on 24th June 2003)
8. On the other hand, the learned Assistant Government Pleader has supported the acquisition and would submit that the acquisition is for a public purpose. The learned Assistant Government Pleader submits that the record indicates that for almost about four decades there existed a slum on the said land and that it is a matter of record that the slum dwellers were living in sub-human conditions ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 14 wp747.749.12.doc being totally deprived of the basic facilities necessary for survival with human dignity. He submits that the petitioners are not correct in contending that the decision to acquire the land in question was arbitrary and/or malafide, as the same was taken after a long drawn process and after several notices issued from time to time to the erstwhile owners of lands. He submits that the petitioners in the first writ petition are recent owners, however, in making these submissions, the petitioners have given a go-bye to the entire background which emanates from the year 1977. It is submitted that in these circumstances when the habitants of the slum area for years together who were residing in sub-human conditions, the law was set into motion. It is submitted that proper procedure for acquisition of the land in question has been undertaken by respondent nos.1 to 4 culminating into a final notification being issued under section 14 of the Slum Act, by virtue of which the land has vested in the State Government and would now enable the authorities to take steps to provide basic amenities to the occupants by undertaking redevelopment of these slums. It is therefore, submitted that the ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 15 wp747.749.12.doc challenge as raised by the petitioners who are developers and who have purchased the land knowing well that it is a notified slum is wholly untenable and the writ petition deserves to be dismissed.
9. We have heard learned counsel for the parties and with their assistance, we have gone through the documents as placed in the paper book. We have also perused the original record pertaining to land acquisition as submitted on behalf of respondent nos.1 to 4.
10. As the preamble of the Slum Act shows that the Slum Act has been enacted to make better provisions for improvement and clearance of slum area in the State and their re-development and for protection of occupiers from eviction and distress warrants. The statement of object and reasons of the Slum Act depicts the necessity of this legislation and its importance and states that since several slums have sprung up and continue to exist in various areas in the State which despite continued confrontation by the authorities to remove them and re-house and resettle the slum dwellers, it had not ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 16 wp747.749.12.doc been possible to keep pace to the necessities of the situation. It is stated that the existing slums were becoming a source of danger to the health, safety and convenience of the slum dwellers and also the surrounding areas and inter alia a source of nuisance to the public. A perusal of the scheme of the Slum Act shows as to how the object and purpose of the enactment is sought to be achieved by application of the various provisions of this enactment. It would not be out of place to observe that it is a matter of common knowledge that in big cities like Mumbai and Pune in the State of Maharashtra vast urban lands of the ownership of the Government or public bodies or of private ownership there are lakhs of people who are living in slums.
In the absence of an legislation as the slums Act, as to how the problems of the people staying in the slums could be resolved was a major challenge before the Government. The impact of the growing slums was not only adversely affecting the growth and a systematic development of these cities but was seriously affecting the urban economy. The Slums Act intends to cure these urban problems and to achieve the said object inter alia provides for acquisition of land.
::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 17wp747.749.12.doc Thus the authorities are competent to resort to land acquisition under the Slums Act as a measure in public interest to redevelop the slum areas.
11. It would be useful to make a mention of the scheme of the various Chapters of the Slums Act. Chapter IA provides for the slum rehabilitation scheme. Chapter II which contains relevant provisions of section 4 and 4A concerns slum area and declaration of slum areas. Chapter III concerns the Slum improvement. Chapter IV concerns slum clearance and redevelopment. Chapter V which is relevant for the case in hand concerns acquisition of land. Section 14 under this Chapter confers a power on the State Government to acquire land. Other provisions under this Chapter concerns aspects pertaining to the vesting of lands,right to receive compensation, basis for determination of compensation, apportionment of compensation, payment of compensation or deposit of the same in Court, payment of interest etc. A perusal of these provisions indicate that the land over which the slum is situate may be acquired under the provisions ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 18 wp747.749.12.doc of the Slum Act without which it would be impossible to give effect to any scheme under the Slum Act. The intent being to achieve by such acquisition benefit to the slum dwellers residing in sub-human conditions and to permanently ensure improvement of their living conditions in furtherance one of the Constitutional object as enshrined in Article 47 of the Constitution of India and that is to improve public health. The Division Bench of this Court in Sara H.D'Mello vs State of Maharashtra & ors reported in 2013 (5) Bombay Cases Reporter 167 while upholding the provisions of section 14 of the Slum Act has observed thus:
75. " Acquisition of slum lands under the provisions of the Slum Act are not merely for the benefit of a large number of persons residing in sub-human conditions in slums but also to ensure that improvement of their living conditions will lead to improvement of the urban economy which is very much dependent upon the labour force being supplied by the occupants of hutments in the slums. As per the settled legal position, scope of judicial review in such cases is to find out whether the principles for valuation set out in the legislation are relevant to the principles for determination of value of the land and since we find that the principles are relevant, the scope of the judicial review stops here and we are not concerned with the final outcome or the actual amount of compensation arrived at by the competent authority."
12. On the background of the above discussion, we now ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 19 wp747.749.12.doc consider the challenge as raised in the present petition. A perusal of the original record pertaining to acquisition of the lands in question would indicate that there were several notices issued from the year 1977 to the land owners directing them to provide basic amenities to the slum dwellers residing on these lands. These notices were replied by the erstwhile landowners however, the conditions of the slum dwellers showed no improvement and the landlords continued to neglect and refrained from making any improvement in the living conditions of the slum dwellers. The record indicates that the competent authority appointed under section 3 of the Slum Act issued a Notification under section 4 of the Slum Act declaring the land in question to be a slum area which was notified in the Government Gazette on 26th September 1977. Thereafter, a notice under section 5 (1) of the Slum Act dated 27th September 1979 came to be issued so as to ensure that basic amenities are provided in this slum area. Further a notice dated 25th July 1983 under section 8 (1) of the Slum Act came to be issued prohibiting the construction activity except with permission of the Competent authority. The ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 20 wp747.749.12.doc record further indicates that the respondent no.5 had moved a proposal on 19th May 2007 for acquisition of the land in question.
The Competent authority undertook an inquiry and recommended issuance of a notice under section 14 (1) of the Slum Act calling upon the persons interested to be heard in regard to the acquisition of the land in question. The persons interested were granted a hearing. An inquiry report dated 26th June 2008 came to be prepared by the Competent authority and the same was submitted to the Principal Secretary, Housing Department of the State Government. The report indicated that there are 101 hutments on the area in question. The report records that the petitioners in writ petition No.747 of 2012 were heard and had submitted their representation through their representative Shri J.Rajendra Bhushan dated 19th November, 2007 that the petitioners intended to themselves develop the land in question. The report states that though objections were raised by the petitioners and others against acquisition however, none of these objectionists had submitted consents of the slum-dwellers which goes to show that the slum-
::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 21wp747.749.12.doc dwellers who had applied for acquisition of the land were not supporting the objections of the petitioners. It was therefore, recommended that the lands in question be thus acquired. The State Government granted an approval to the acquisition of the lands in question and by the impugned notification dated 1st September 2010 issued under sub-section (1) of section 14 of the Slum Act declared and decided to acquire the said land. A perusal of the record as submitted on behalf of the State Government does not indicate that the allegations which have been made by the petitioners against acquisition have any substance.
13. It is thus quite clear from the land acquisition record that since the year 1977 the Competent authority on complaints received by it had issued notices to the erstwhile land owners to provide basic amenities to the slum-dwellers. The Competent authority had issued a notification dated 20th July 1977 under section 4 (1) of the Act declaring the land as a slum. Despite a period of about 40 years having passed the condition of the land remained to be the same.
::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 22wp747.749.12.doc Thus on a proposal moved on behalf of the respondent no.5 the process for acquisition of land was to set into motion. The Competent authority after issuing appropriate notices calling for objections from the persons interested and after considering their objection issued a notification dated 1st September 2010 deciding to acquire the land. The record does not indicate that the allegations of the petitioners that the acquisition has been undertaken at the behest of some other builders to have any substance. The record clearly indicates that the acquisition is at the behest of respondent no.5 which is the society formed by the slum dwellers and which had the locus to initiate such a proposal. The contention as urged on behalf of the petitioners is that the acquisition is not in public interest for the reason that the petitioners themselves were willing to undertake slum rehabilitation scheme and such willingness was shown and submitted to the S.R.A. It is thus submitted that acquisition proceedings were rendered unwarranted and thus not in public interest. This submission of the petitioners in our opinion is wholly untenable for the reason that it is an admitted position that ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 23 wp747.749.12.doc the petitioners in writ petition No.747 of 2012 are builders who have purchased the land in question recently that is on 14th July 2006 which was declared as a slum area on 20th September 1977. It is apparent that the purchase of the said land by the petitioners was for the purpose of undertaking a slum scheme. Only because the petitioner intended to themselves undertake re-development of the slums that cannot be a reason that a public purpose namely to enable the authority to execute the work of improvement and re-
development of the slum land would become otiose. It is not illusory.
The purpose as set out is indeed a public purpose. The necessity of such an acquisition at the behest of the society formed by the slum-
dwellers who intended improvement in the living condition of the slum dwellers could not have been overlooked by the State Government. Respondent no.5 had approached the competent authority by an application/proposal requesting the State Government to acquire the land under the provisions of section 14 (1) of the Act. In fact the record of the acquisition indicates that the plight of the slum-dwellers from the year 1977 and despite repeated ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 24 wp747.749.12.doc reminders on the part of the authorities calling upon the owners of the land to bring about an improvement but, no progress was forthcoming in that regard. On this background if the respondent no.5 made a proposal to the State Government to acquire the land for improvement and redevelopment of the slum area, it cannot be said that acquisition is not in public interest. In fact, this was a fit case which would contemplate the competent authorities to act under the provisions of the Act and acquire land for the benefit of the slum-dwellers. The slum-dwellers residing on the land in question were suffering for last more than 40 years and that the owners were not paying any heed for providing basic requirements to elevate their unhealthy and/or sub-human plight of the slum dwellers, it is in these circumstances, that the State Government had taken a conscious decision in accordance with the provisions of the Act to acquire the land and thus the same cannot be faulted with at the behest of the petitioners who are overlooking the past background.
The submissions on behalf of the petitioners that the acquisition is not in public interest thus cannot be accepted and would be required ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 25 wp747.749.12.doc to be rejected.
14. As regards the submissions of the petitioners that the petitioners were not issued a show cause notice under section 14 (1) is also without any substance. This is for the reason that the petitioners were permitted to make a representation. The representatives of the petitioners were also granted a hearing. After taking into consideration the petitioner's representation in the report prepared by the Competent authority, the Competent authority forwarded its comments on the same to the State Government. This, in our opinion this would amount to sufficient compliance of the principles of natural justice. In this regard interpreting section 14 (1) of the Slum Act the Division Bench of this Court in paragraph 30 of the decision in the case of Sara D'Mello (supra) has observed thus:
30. "Numerous persons residing in sub-human conditions in a slum area are going to benefit by the acquisition and redevelopment of the land. After issuance of notice to land owner and after filing his reply, if the land owner were held to be entitled to personal hearing before the Collector or the government the slum dwellers would also claim personal hearing in support of the notice for acquisition of the land for redevelopment and rehabilitation of the slum dwellers. Giving a personal hearing to each of such a large number of concerned persons would in fact delay and therefore, frustrates the object of the Act viz to improve, clear and redevelop slum areas. Keeping ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 26 wp747.749.12.doc in mind the intended goal of the Act, the Legislature in its wisdom has therefore not provided and could not have provided for personal hearing when it comes to acquisition of slum land. A personal hearing is not a necessary requirement of the principles of natural justice in every case. In section 14 the express provisions of giving of a notice inviting objections and consideration of those objections by the Government by necessary intendment indicates that the Legislature did not intend to provide for personal hearing."
The objections as raised by the petitioners to the land acquisition were considered by the Competent authority as also the submissions as made on behalf of the representative of the petitioners. Thus, the contention of the petitioners that there being breach of principles of natural justice is totally devoid of any merit.
15. We now refer to the decisions as relied on behalf of the petitioners. The principal reliance is on the decision of the Division Bench of this Court in the case of The Reserve Bank Employees Snehadhara Co-op Housing Society Ltd (supra.) The contention is that acquisition in the present case is malafide in as much as the authority was made aware that the petitioners submitted a scheme to undertake the slum rehabilitation scheme and therefore, acquisition could not have been undertaken. The Competent authority ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 27 wp747.749.12.doc proceeding dehors the position would render the acquisition malafide. In Reserve Bank of India Employees Snehadara Co-
operative Housing Society Ltd the Division Bench had set aside the acquisition observing in the facts of that case that power was exercised for some collateral or oblique purpose that the material on record in that case established that acquisition proceedings are initiated on the basis of the application dated 24th January 1997 made by respondent no.8 who was a builder which was reflected in the Collector's report to the State Government. The Collector in his report submitted to the State Government had stated that there were hardly 42 hutments/slum dwellers upon the land in question and which was restricted to an area of 839.6 sq.meters. Notwithstanding the Collector's recommendations, the authorities chose to acquire the entire property admeasuring 47808 sq.meters which corresponded to the claim of the respondent no.8-builder. There was no explanation in the counter filed by the State Government as to why the entire property admeasuring 47808 sq.meters was acquired despite the Collector's recommendations for acquisition of a lesser ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 28 wp747.749.12.doc area. It is in these circumstances, having found that there was no explanation to this case of the petitioners the Division Bench observed that the only inference which can be drawn was that the entire acquisition proceedings were at the behest of respondent no.8- builder who claimed entitlement to develop the entire property and was also unsuccessful in obtaining orders against the petitioners in that regard. The facts in that case are distinct from the facts in the present case. This decision of the Division Bench is therefore, of no assistance to the petitioners.
16. Learned counsel for the petitioner has then placed reliance on the decision of the learned single Judge of this Court in the case of Ramkali Sitaram Kushawala and others vs Deputy Collector (ENC) and ors (2004 (3) Bom.C.R.14 and the decision of the Division Bench of this Court in Maruti V.Mane vs Ramkali Sitaram Kushawala in Appeal No.324 of 2004 dated 14 February 2011 to urge that action under section 14 (1) cannot proceed without first taking steps as per the provisions of section 5 of the ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 29 wp747.749.12.doc Slums Act and that the requirement of representation is not a empty formality. In short, the submission is that these decisions hold that the competent authority is required to be satisfied about the necessity of acquisition by taking recourse to the provisions of section 5 and other ancillary provisions of Chapter III of the Slum Act. There can be no quarrel about this proposition. These decisions however, are clearly not applicable in the facts of the case in as much as in the present case statutory notices were issued to the land owners from the year 1977 and that all attempts to bring about an improvement in the conditions of the slum dwellers were made as also a notice under section 5 was issued. It therefore cannot be said that the Notification under section 14 (1) is issued bye-passing the requirements of the other provisions of the Act.
17. The next judgment as relied upon by the petitioner is in the case of Bhalchandra Datey & ors vs State of Maharashtra & ors reported in 2012 (1) Bom.CR 578 the Court was concerned with acquisition of land under the relevant provisions of Chapter ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 30 wp747.749.12.doc VIIIA of the Maharashtra Housing and Area Development Act, 1976.
There were disputes between the landlord and the tenants. The petitioners were tenants and sought annulment of acquisition proceedings on the ground that they have entered into an agreement with builders for redevelopment of the property and thus had approached the State Government to withdraw the notification acquiring the land in question issued under the provisions of section 93 (5) of the MHADA Act. The State refused to withdraw the notification. The Division Bench in the facts of the case held that the owners of the property and all tenants were unanimous in saying that want to develop the property by the petitioner no.11 developer and they were interested in forming a cooperative society. In these set of facts, the acquisition notification came to be set aside by the Court. Learned counsel for the petitioner has relied on the observations of the Court in paragraph 5 to 7. We are afraid that this judgment is of no assistance to the petitioner. In the facts of the present case, the petitioners were unable to demonstrate that the slum dwellers were supporting the petitioners in the plea against ::: Downloaded on - 31/07/2015 23:58:14 ::: Rng 31 wp747.749.12.doc acquisition. In fact, respondent no. 5 which is the society of slum dwellers had initiated the proposal requesting the competent authority to initiate acquisition proceedings.
18. In view of the aforesaid discussion, we find that writ petitions are bereft of any merits. These writ petitions therefore fail and are accordingly dismissed. We clarify that our conclusions shall not prevent all those claiming to be interested in the land/property from claiming compensation for the acquisition of their land/interest therein. All proceedings of this nature can proceed in accordance with law.
No order as to costs.
G.S.KULKARNI J S.C.DHARMADHIKARI, J
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