Bombay High Court
Bhalchandra Datey & Ors vs State Of Maharashtra & Ors on 28 November, 2011
Author: D.K.Deshmukh
Bench: D.K.Deshmukh, Anoop V. Mohta
1 WP 2806.05
Kambli
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
WRIT PETITION NO.2806 OF 2005
...
Bhalchandra Datey & Ors. ...Petitioners
v/s.
State of Maharashtra & Ors. ...Respondents
...
Mr.Y.S.Jahagirdar, Sr.Advocate with Mr.V.V.Joglekar i/b Nitin
Mulye for the Petitioners.
Mr.G.W.Mattos, AGP for Respondents Nos. 1 to 5.
Mr.Kamal Bulchandani with Mr.Arun Mehta and Ms.Payal i/b
M/s.Akshar Law for Respondent No.6.
Mr.P.G.Sawant for Respondent No.7.
...
CORAM: D.K.Deshmukh &
Anoop V. Mohta, JJ
DATED: 28th November, 2011
JUDGMENT:(PER D.K.DESHMUKH, J.)
1. This petition has been filed basically challenging the Notification dated 4-11-1993 issued by the Government under Chapter VIII-A of the Maharashtra Housing and Area Development Act.
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2. The relevant facts are, the subject matter of this petition is a property bearing Plot No. 167/B Dadar-Matunga Estate with a building standing thereon. Petitioners Nos. 1 & 2 are the owners of the property. Petitioners Nos.3 to 10 are the tenants occupying the building which is standing on the land. The Petitioner No.11 is the Builder with whom the owners/Petitioners Nos. 1 & 2 have entered into an agreement for development of the property. Respondents Nos.1 to 5 are the authorities of the State Government.
Respondents Nos. 6 & 7 are also the tenants occupying the building on the aforesaid plot. Mr.Jahagirdar, the learned Sr.Counsel appearing for the Petitioners states that the Petitioner No.5 has recently expired leaving behind two legal representatives namely Ms.Pratima Lele and Mrs.Nilima Gokhale. He further states that the Petitioners Nos.1, 2 & 11 will abide by the agreement between the original Petitioner No.5 on one hand and the Petitioners Nos. 1,2 and 11 on the other hand, in so far as legal representatives are concerned.
3. The present petition was filed basically for ::: Downloaded on - 09/06/2013 17:57:32 ::: 3 WP 2806.05 allowing the Petitioners to redevelop the property in view of the settlement arrived at between them, though the property was acquired under Chapter VIII-A of the MH& AD Act for the purpose of its redevelopment. In so far as the acquisition proceedings that were taken up for acquisition of the property and subsequent developments are concerned, they have all been narrated in the affidavit of one Mr.Ganesh Rathod, Under Secretary, Housing Department, Government of Maharashtra dated 7th July, 2005. Paragraphs 2 to 8 of that affidavit read as under:
"2. I say that the Petitioners who are the owners and tenants of the property known as Datey Bhavan situate at Plot No.167/B, Dadar-Matunga Estate, Dadar(East), Mumbai, have filed the above captioned petition interalia, praying that they should be allowed to redevelop the property in view of the settlement arrived at between them, notwithstanding the acquisition of the property under Chapter VIII A of the Maharashtra Housing and Area Development Act, 1976. The Petitioners have also sought the quashing of the Government Resolution dated 26th April, 1989 (which is annexed as Exhibit C1 to the petition). I say that as regards the said prayers of the Petitioner, I have to respectfully say and submit as under:
3. I say that to solve the problem of the cessed buildings belonging to Category-A in the city of Mumbai, Chapter VIII A was inserted in the MHAD Act, 1976 some time in the year 1986. I say that under Section 103 B of the said Chapter VIII A, a ::: Downloaded on - 09/06/2013 17:57:32 ::: 4 WP 2806.05 Society comprising of 70% of the tenants/occupants in a cessed building can approach the Respondent No.3 Board to move the State Government to acquire the land together with the existing building in the interest of its better preservation or for reconstruction of a new building in lieu of the old one and intimate their willingness to pay the amount of such acquisition. I crave leave to refer to and rely upon the provisions of Chapter VIII A as and when required.
4. I say that a proposal was received from the Respondent No.3 by the State Government based on the request of the society of the tenants/occupiers. The Government had passed a Resolution and sanctioned the proposal for acquisition of the land mentioned therein. I say that pursuant to the said Resolution, the statutory process under the said Chapter was followed for acquisition of the property in question and ultimately a notification under Section 93(5) was issued by the Special Land Acquisition Officer, as a consequence of which the property has vested in the MBRRB.
5. I say that the provisions of Chapter VIII A are a subject matter of challenge before the Hon'ble Supreme Court of India in the matter of the Property Owners Association Vs.State of Maharashtra and others. I say that the Civil Appeal has now been directed to be placed before a Constitution Bench of the Hon'ble Supreme Court of India. I say that though the acquisition of the property has not been stayed. However, the State of Maharashtra and the MHADA have been restrained from taking over possession of the property and carrying out any redevelopment. I crave leave to refer to and rely upon the orders passed by the Hon'ble Supreme Court of India.
6. I say that though the final notification under Section 93(5) has been issued, no steps can be taken transferring the said property to the Society ::: Downloaded on - 09/06/2013 17:57:32 ::: 5 WP 2806.05 of the tenants/occupiers so as to facilitate the work of reconstruction or redevelopment. I say that therefore as of today, there is a Status quo in respect of the properties which have been acquired under Chapter VIII A of the said MHAD Act.
7. I say that the Petitioners had challenged the said acquisition by filing a Suit in the Hon'ble City Civil Court in which an interim order came to be passed that Status quo should be maintained. Copy of the said order is annexed as Exhibit -1 to the petition. I say that in the mean time, it appears that the Petitioners who are the owners of the property have acquired the consent of 70% of the tenants and have therefore approached the Respondent Nos.2 and 3 for redevelopment of the said property. I say that it appears that save and except two tenants who are respondents to the above petition, the rest of the tenants have consented to the Redevelopment Scheme to be carried out by the Petitioner Nos. 1 and 2 who are the owners of the property. I say that the Petitioners No.1 and 2 have interalia entrusted the development rights to the Petitioner No.11. I say that from the documents annexed to the petition, it appears that the said consenting tenants have executed agreement with the Respondent No.11 whereby the Respondent No.11 is to provide them flats in the reconstructed building.
8. I say that since the acquisition under Chapter VIII A under Section-103 B thereof is triggered of by the request of the Society of the tenants to acquire property in question for better preservation and reconstruction and in the instant case since the owner and 70% of the tenants have come forward for redevelopment of the property, the Petitioners have sought annulment of the acquisition proceedings on the said ground. I say that even after acquisition under Section 103 B, the property is to be transferred to the tenants Society. I say that in the ::: Downloaded on - 09/06/2013 17:57:32 ::: 6 WP 2806.05 instant case, the tenants and the landlords having come together though after the acquisition has been completed, I say that looking from a practical point of view, the net effect, in my respectful submission, would be the same as the object of Chapter VIII A. (emphasis supplied)
4. After this affidavit was filed, the Division Bench of this court passed an order dated 8th July, 2005. That order reads as under:
"The learned Counsel for the Petitioners has drawn our attention to the additional affidavit filed by the Under Secretary, Housing Department, Government of Maharashtra dated 7th July, 2005. It is incorporated in the affidavit that since the acquisition under Chapter VIII A under Section 103 B thereof is triggered off by the request of the Society of the Tenant to acquire property in question for better preservation and reconstruction and in the instant case since the owner and 70% of the tenants have come forward for redevelopment of the property, the Petitioners have sought annulment of the acquisition proceedings on the said ground.
It is also mentioned that after acquisition under Section 103 B, the property is to be transferred to the tenants Society. It is also incorporated that the tenants and the landlords have come together though after the acquisition has been completed.
2. The learned Counsel appearing rot eh Respondents prays for two weeks time to pass consequential orders by the Respondents. Mr.Jahagirdar, the learned Counsel appearing for the Petitioners submits that in case the land be ::: Downloaded on - 09/06/2013 17:57:32 ::: 7 WP 2806.05 acquired, no compensation shall be claimed by the Petitioners.
3. Adjourned to 29th July, 2005."
5. After this order was made, the State Government passed an order dated 5th September, 2005 declining to withdraw the Notification by which the property was acquired for the reason that the Act does not confer any power on the Government to withdraw the Notification for acquisition once it is issued. On behalf of the Government reliance is placed on the judgment of the Supreme Court in the case of State of Kerala and ors. v/s. M.Bhaskaran Pillai and anr. (1997) 5 Supreme Court Cases 432, which lays down that once the land is acquired and the possession of the land is taken, the Government does not have power to delete that land from acquisition. Thereafter, the petition was adjourned from time to time. It is apparent from the record that the Petitioners Nos. 1 & 2 who are owners of the property are desirous of getting the property developed through Respondent No.11.
Petitioners Nos. 4 to 10, who are tenants, are also willing to get the property developed through the Respondent No.11.
::: Downloaded on - 09/06/2013 17:57:32 :::8 WP 2806.05 Only Respondents Nos.6 & 7, who are also tenants, were unwilling. However, now it appears that the Respondents Nos. 6 & 7 have also decided to get the property developed through the Respondent No.11. There is an understanding separately reached between the Petitioner No.11 on one hand and the Respondents Nos.6 & 7 on the other. All the tenants had moved the Registrar for registration of the Co.operative Society of the tenants. However, now all the tenants have applied to the Registrar for withdrawal of their proposal for formation of Co.operative Society. These facts have been stated in the affidavit dated 1-11-2011 sworn by the Petitioners Nos. 3, 4, 7, 8, 9 & 10. There are Minutes of Order recording the understanding arrived at between the Petitioner No.11 and Respondent No.6 and between the Petitioner No.11 and Respondent No.7. Copy of the Minutes of Order between Petitioners Nos.1, 2 & 11 and Respondent No.6 is taken on record and marked "X" for identification.
Whereas copy of the Minutes of Order between Petitioners Nos. 1, 2 & 11 and Respondent No.7 is taken on record and marked "Y" for identification. Undertakings given in those ::: Downloaded on - 09/06/2013 17:57:32 ::: 9 WP 2806.05 Minutes of Order are accepted. It is clear from the affidavit of the Petitioners dated 21-11-2011 as also Minutes at "X" & "Y"
that the owners of the property and all the tenants are now unanimous in saying that they want to get the property developed through the Petitioner No.11 and they are not interested in forming a Co.operative society.
6. In this view of the matter, therefore, considering what is stated on behalf of the Government in its affidavit dated 7-7-2005, no useful purpose will be served by continuing the property under acquisition. Because the property was being acquired by the Government basically for the benefits of the tenants.
7. The learned AGP appearing for the Government stated that as clarified by the Government in its order dated 5th September, 2005, according to the Government it does not have power to withdraw the property from acquisition, as there is no such provisions in the Act and because of the judgment of the Supreme Court in M.Bhaskaran Pillai's case, ::: Downloaded on - 09/06/2013 17:57:32 ::: 10 WP 2806.05 referred to above. In our opinion, however, it does not prevent the court from setting aside the acquisition of the property if the court finds that the purpose for which the property was acquired itself will not be served or when the court finds that the property was being acquired for the benefits of the tenants, who do not want the property to be acquired for their benefits. In view of the stand taken by the tenants and their refusal to form a Co.operative Society, now the authorities under the MHAD Act also will not be able to develop the property according to the provisions of Chapter VIII-A of the Act.
8. In this view of the matter, therefore, in our opinion, this is a fit case where the Notification issued under the MHAD Act for acquisition of the property is to be set aside, so that the property can be redeveloped according to agreement reached between the tenants, owners of the property and the Petitioner No.11-Developer. In our opinion, therefore, the petition can be disposed of in following terms:
(i) Notification dated 4-11-1993 at Exh.1 is set aside.::: Downloaded on - 09/06/2013 17:57:32 :::
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(ii) As a consequence of setting aside of the acquisition, the Respondent No.3 shall consider the application that may be submitted for grant of NOC in accordance with law.
(iii)Order in terms of Minutes at "X" & "Y".
(iv)Petition disposed of.
(Anoop V. Mohta, J.) (D.K.Deshmukh,J.) ::: Downloaded on - 09/06/2013 17:57:32 :::