Bombay High Court
Abhigna Enterprises vs Slum Rehabilitation Authority on 11 October, 2023
Author: G.S. Patel
Bench: G.S. Patel
914-OSWPL-17731-2023-F.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 17731 OF 2023
Abhigna Enterprises ...Petitioner
Versus
Slum Rehabilitation Authority & Ors ...Respondents
Mr Janak Dwarkadas, Senior Advocate, with GS Godbole, Senior
Advocate, Shilpi Jain, i/b, Jaya Bagwe, for the Petitioner.
Mr Aspi Chinoy, Senior Advocate, with Karl Tamboly, Krishna
Balaji Moorthy, Bhakti Mehta, Vikrant Baravkar, i/b, Wadia
Gandhy & Co., for Respondent No. 2.
Mr Zal Andhyarujina, Senior Advocate, with Karan Bhide, &
Richa Singh, for the Respondent No. 4.
Mr PG Lad, for the Respondent-MHADA.
Ms Uma Palsuledesai, for the Respondent-State.
AMOL
PREMNATH
JADHAV CORAM G.S. Patel &
Digitally signed by
AMOL PREMNATH
Kamal Khata, JJ.
JADHAV Date: 2023.10.12 DATED: 11th October 2023 10:41:50 +0530 PC:-
1. In this matter, on 18th July 2023, we made a detailed five page order outlining the issues involved in this Writ Petition. It reads:
"1. There is at Borivali an enormous development of nearly seven acres or 28000 sq mts. In this Petition we are apparently concerned with a part of a part of that larger development. Mr Dwarkadas for the Petitioner claims Page 1 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC rights in respect of CTS Nos. 148/129, 149 and 150 which together admeasure 2410.4 sq mts. This is part of a larger tract of land of over 8000 sq mts, and that larger part of land is included in an ongoing development covering 28000 sq mts.
2. The Petitioner, a corporate entity, Abhigna Enterprises, claims to have acquired title inter alia to these three CTS numbers on 23rd May 2006.
3. The contest today is between Abhigna Enterprises and (1) the 2nd Respondent represented by Mr Chinoy, Incline Realty Pvt Ltd, and (2) Mr Andhyarujina who appears for a proposed Respondent/Intervenor, the Borivali Avirahi (SRA) CHSL.
4. As the first order of business, and since Mr Andhyarujina states that this is the only society on the entire 28000 sq mts tract of land, we will direct the addition of the society as the 4th Respondent to the Petition. That amendment is to be carried out by Monday, 24th July 2023 without need for reverification.
5. Mr Dwarkadas for the Petitioner says that the prayer in the Petition is limited. The Petitioner contests the amalgamation of the three plots owned by the Petitioner with the abutting or adjacent larger plot or plots. Mr Dwarkadas maintains that as the owner of the three plots we have mentioned above, Abhigna Enterprises' ownership rights could not have been compromised, let alone entirely taken away or denuded, by being swept into an allegedly amalgamated slum rehabilitation project.
6. There is the involvement of Maharashtra Housing and Area Development Authority ("MHADA") as well and this is the 3rd Respondent, while the Slum Rehabilitation Authority ("SRA") is the 1st Respondent. Mr Dwarkadas states that a plan has been recently received Page 2 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC from MHADA showing the impugned amalgamated development as covering the Petitioner's three plots.
7. Mr Chinoy for Incline Realty maintains that the Petitioner is not entitled to claim any rights, benefits or entitlements irrespective of whether or not the Petitioner holds a registered conveyance for these three plots. The submission appears to be that by its conduct over a long period of 15 years, and through litigations that travelled to the Supreme Court, the Petitioner is or must be deemed to be, estopped from claiming any such rights. It never asserted these rights of ownership. It allowed others not only to enter upon the land, but openly and without any obstruction carry on work on that land. Mr Chinoy says that Incline Realty has over the years spent a large amount of money on development work, at least to the extent of initial surveys, some site clearance and demolitions and so forth.
8. We have outlined this simply to clarify that there is no dispute about the "title" to the three plots. The question is not about title to the land, which would have been required to be agitated in a civil suit, but whether or not the Petitioner continues to have entitlements to the benefits of that land ownership, and whether the Petitioner can claim to be excluded from the amalgamated redevelopment or rehabilitation scheme. Whether that exclusion happens as a matter of estoppel, acquiescence or otherwise is the question of law that will have to be decided.
9. Mr Dwarkadas agrees that principal prayers A and will need to be recast to more accurately focus on what the Petitioner seeks, viz., that the three plots in question, namely CTS Nos. 148/129, 149 and 150 be excluded from the amalgamated scheme. As presently cast, prayers A and B are confusing and unclear. We permit the Petitioner to amend the Petition with appropriately worded replacements of prayer clauses A and B. Those Page 3 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC amendments are also to be carried out by Monday. A copy of the amended Petition or the amendments, as may be convenient (since the Petition has already been once amended), will be served on all four Respondents (including the Society).
10. The 2nd Respondent has served a copy of what appears to be a fairly substantial Affidavit in Reply. Mr Dwarkadas has not had the opportunity to take instructions on this. He seeks time to file a response. Mr Andhyarujina also seeks time to respond to the Petition itself since the Society supports Incline Realty.
11. Mr Lad for MHADA responds to our query by saying that MHADA has acquired a portion admeasuring nine Are and this has been stated in an annexure to the Petition. Mr Lad clarifies that MHADA is not concerned with any title issues to the rest of the land or to the land that the Petitioner now claims.
12. We have tried to identify the issues so that these can be more accurately focussed on for the hearing.
13. The Society's Affidavit in Reply is to be filed and served by 28th July 2023. A common Rejoinder by the Petitioner to the Affidavits of the 2nd Respondent and the Society is to be filed by 4th August 2023. We will take up the matter high on the supplementary board on 9th August 2023.
14. We would request both sides to prepare their respective list of dates for the convenience of the Court and to circulate these in advance.
15. We note also that Mr Chinoy has another submission as to maintainability of the Writ Petition in these circumstances. This is left open for the next date.
16. All parties are put to notice that we will endeavour to dispose of the Petition finally at the stage of admission.Page 4 of 16
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17. The Affidavit in Reply of the 2nd Respondent is to be filed in the Registry.
2. Then, on 9th August 2023, there followed another order outlining the questions involved. We reproduce that order as well for completeness.
"1. By all accounts, 1000 pages of filings are insufficient. For there is a need for further affidavits, this time from the authorities. The Petition has suffered several colourful amendments. We have briefly encapsulated some of the areas of the controversy in our order of 18th July 2023.
2. We reproduce prayer clause (c) but only for clarity. It is at page 38 and reads as follows:
"c. That this Hon'ble Court be pleased to grant injunction restraining the Respondent No.2 through their servant, agent or persons claiming through or Respondent No.2 from carry out any construction or development activities on the said property bearing CTS Nos. 148/129, 149 and 150 total admeasuring about 2410.4 sq. meters."
(Emphasis added)
3. This tells us, and we will not permit an expansion of this after today, that we are concerned with only three particular plots, CTS Nos. 148/129, 149 and 150. The total area is 2410.4 sq mts.
4. This is important because these are only some of the lands that are mentioned in many of the documents that are referred to in these three or four volumes of filings.
5. What is proposed on this land, and which is only part of a part of a much larger plot of land, is a redevelopment Page 5 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC under Development Control Regulation 33(10) of the Development Control and Promotion Regulations for Greater Mumbai ("DCPR") 2034.
6. Mr Dwarkadas for the Petitioner has drawn our attention to sub-clause (I) of DCR 33(10) and sub-clause (II). The first sub-clause deals with persons who are eligible for redevelopment. Sub-clause (II) has definitions of 'slum' amongst others and DCR 33(10)(II)(i) says that a slum means that which is censused or declared or notified in the past or thereafter under the Slum Act. This is a reference to the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("the Slum Act").
7. A 'censused slum' is defined in Section 2(1b) of the Slum Act in the following terms:
"(2)(1b) 'Censused Slum' means any cluster of dwelling structures which has been censused, surveyed and enumerated and incorporated in the records of land owning authority as having been censused by the Collector or Competent Authority or any other person of a Planning Authority or Special Planning Authority by order of the State Government or any authority empowered by order of the State Government."
(Emphasis added)
8. As the emphasised portion shows, the requirements are that there must be a census. There must be a survey. There must be an enumeration. And then there must be an incorporation in the records of the land-owning authority.
9. And that is the heart of the problem. The Petitioner claims that it acquired title to this land on 23rd May 2006 under a registered conveyance that has never been Page 6 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC questioned or impeached. The Petitioner proceeded, for the next 17 years or so, on the assumption, supposition or belief that the land it bought 'had been acquired' by, and was the property of, the Maharashtra Housing and Area Development Authority ("MHADA").
10. Until 2012 nobody disagreed. MHADA itself seems to have maintained in at least three letters that it did acquire the lands that are mentioned above, and which are the subject matter of this Petition. The Slum Rehabilitation Authority ("SRA") seems to have built upon what we will now call 'the MHADA acquisition premise' and said that there was in fact a census, survey, enumeration and that these lands are now covered by a censused slum.
11. That there are slums on the land is not in dispute.
12. It is also a matter of quite considerable record that for a very long time the Petitioner was endeavouring to be anointed as the developer for slum redevelopment but with a notable lack of success.
13. It is unclear to us at this stage what prompted the Petitioner's epiphany on 3rd March 2023 when it filed a Right to Information application with the Public Information Officer of MHADA. A copy of this is at page 633 and the enquiry was 'if the land that has been acquired by MHADA required the plan of acquisition and other relevant documents'.
14. MHADA's PIO replied on 28th March 2023. A copy is at page 634. The first paragraph refers to various plots. These include the three subject plots, i.e., 148/129, 149 and 150 among others. The first sentence of the second paragraph however says that MHADA has not acquired these lands.
15. And so, only on account of this response to a RTI query, the Petitioner comes to Court now asserting its title Page 7 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC under the 23rd May 2006 conveyance, saying that its lands purchased under that conveyance could never have been part of a censused slum, was never acquired by MHADA, was never MHADA land, could never have been incorporated by SRA in the relevant MHADA records because MHADA itself had no title.
16. Mr Chinoy for the Developer and Mr Andhyarujina for the Society contest this formulation root and branch. According to them, there was not the slightest ambiguity in the Petitioner's own perception or corporate mind about its rights over the land. It proceeded on the footing that the land was acquired by the MHADA; the record is replete with the Petitioner's acceptance of this. It is based on this solitary line in a reply to an RTI query that the Petitioner now asserts a primary title and seek to dislodge an entire SRA scheme.
17. These rival contentions actually obscure something that is fundamental to a consideration in our writ jurisdiction. We are most emphatically not going to investigate disputed questions of fact, let alone disputed questions of title. That is not the remit of a writ court. But at the same time, we do not see how there can be in the records of a public authority namely, MHADA, this kind of ambiguity about whether it has or has not acquired the three CTS numbers that are the subject matter of this Writ Petition. This is not something that can ever be left to speculation. If MHADA has acquired those lands, there will be supporting documents including acquisition proceedings, notices, and so forth. It is entirely conceivable that the MHADA acquisition may have taken place well prior to the Petitioner's conveyance of 23rd May 2006 and that the original owners may simply have sold the Petitioner a title they did not have, one of which they were divested by acquisition, i.e., a nothingness (and Mr Andhyarujina says Page 8 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC this must be so for this vast tract of land the Petitioner claims to have paid only Rr 6 lakhs in total).
18. But whether or not clear title ever passed to the Petitioner really depends on what the MHADA records show. We are not satisfied at this stage that the isolated statement by the PIO of MHADA without any reference to any documents, files or other material can now serve as the foundation for a title claim by the Petitioner.
19. Equally, it is unsatisfactory from the opposite perspective as well. We are more concerned with the slum rehabilitation project because there are undoubtedly a large number of slums here. That entire project should not suffer because of disputes like this. MHADA has so far not filed an Affidavit. We are not asking MHADA to confirm or deny the correctness of the answer to the RTI query.
20. Our specific questions, ones we insist be answered in the clearest terms on the Affidavit are:
(a) whether MHADA at any time in recorded human history acquired CTS Nos. 148/129, 149 & 150;
(b) If so, when, from whom (i.e., who were the recorded owners of these three plots at the time), and in what manner?
(c) full details as available of the acquisition proceedings including details of all awards passed, compensation ordered and paid;
(d) whether that compensation was accepted and whether there were any further proceedings in that regard?;
(e) whether following any such acquisition, if it took place, what steps were taken to update the land records in regard to these three plots.
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21. If MHADA maintains that there has never been an acquisition of these three plots at any time from any person, then a responsible officer of MHADA must, on the basis of the records, explain how in correspondence of 2008, 2011 and 2012 unambiguously asserted that these lands are the property of MHADA.
22. The Affidavit is to be filed and served by 22nd August 2023. We would prefer if a responsible officer of MHADA was present in Court with the necessary files, should there be an additional query.
23. Between now and that date, the files pertaining to this project are not to be allowed to be inspected, released or made available to any person without an order of this Court. If necessary, the Chief Executive Officer ("CEO") of MHADA will pass the necessary orders for securing the files until this Affidavit is filed. At this stage, we are not permitting any further Affidavits.
24. One further requirement is an Affidavit by the same date from the SRA. This relates to the definition of a censused slum and obviously, it requires certain activities or actions to be done by the SRA or by other State Government officers such as a census, survey, enumeration and recording. For this project, we will require from SRA a brief Affidavit setting out what information is available in its records in regard to the slums on these three plots being part of the censused slum referred to in the proposed DCR 33(10) re-development.
25. At present, we have only highlighted the rival contentions. We have not even expressed a prima facie view but only asked for further information from MHADA.
26. List the matter on 31st August 2023 on the supplementary board."
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3. Mr Lad on behalf of Maharashtra Housing and Area Development Authority ("MHADA") now tenders a copy of a letter dated 18th August 2023 addressed by the Executive Engineer, Borivali Division of the Mumbai Board to the City Survey Officer, Borivali, Mumbai. Not only is a copy of this letter taken on record and marked "X1" for identification with today's date, but for clarity and so that there is no ambiguity at any stage, and also because Ms Palsuledesai for the State says that she has not seen a copy of this letter, we append a scan of this letter to the present order.
4. To put the controversy in a nutshell, Mr Dwarkadas, learned Senior Advocate for the Petitioners, claims that there is a certain portion of the land that remained outside acquisition. This is described as an area admeasuring 27 are. The remaining land was the subject matter of a land acquisition proceeding in LAQ No. 9 and LAQ No. 31. The request by MHADA to the City Survey Officer is to check if the records of the City Survey Office show that CTS Nos. 149 and 150 are the lands acquired for MHADA or are lands which are not acquired under LAQ No. 9 and LAQ No. 31.
5. There is a request for the joint measurement and possession receipt, but we are not issuing that direction to the City Survey Officer at this stage.
6. Our direction is that on the basis of the records available with the City Survey Office, the City Survey Officer should inform the Court by filing a brief Affidavit as to which lands were acquired under LAQ No. 9 and LAQ No. 31 and how these are shown in a Page 11 of 16 11th October 2023 ::: Uploaded on - 12/10/2023 ::: Downloaded on - 13/10/2023 04:10:19 ::: 914-OSWPL-17731-2023-F.DOC map or a city survey plan. We will proceed on the basis that out of the larger plot, that which is not demarcated on the plan as having been acquired will be the land that is exempted or withdrawn from the acquisition.
7. This is obviously necessary because faced with the contentions raised in this Writ Petition, we cannot possibly proceed on speculation and conjectures as to what was and was not acquired. As the previous orders show, the conduct of the Petitioners is one aspect of the matter -- but it is only one aspect of the matter. In matters of public records and actions of public authorities regarding acquisition of lands for public purposes or slum redevelopment, there cannot be this kind of ambiguity, of what was and was not acquired.
8. We direct the City Survey Officer to file an Affidavit by 31st October 2023.
9. The present counter-Affidavit of the Slum Rehabilitation Authority is to be filed in the Registry. A Rejoinder is permitted by 31st October 2023.
10. All concerned will act on production of an authenticated copy of this order.
11. Previous ad interim or interim orders, if any, to continue until the next date.
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12. List the matter high on board on 6th November 2023.
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