Bombay High Court
Jai Ganesh Co-Operative Housing ... vs The District Collector,Mumbai And 11 ... on 1 December, 2023
Author: B. P. Colabawalla
Bench: B. P. Colabawalla, M. M. Sathaye
2023:BHC-OS:14072-DB
WPL.5467.22.DOCX
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION(L) NO.5467 OF 2022
Subhash V.Chawda & Anr ..Petitioners
Mumbai
Versus
The State of Maharashtra & Ors ..Respondents
ANJALI Digitally signed by
TUSHAR
ANJALI TUSHAR
ASWALE
Date: 2023.12.01
WITH
ASWALE 18:24:45 +0530
WRIT PETITION NO.418 OF 2019
Jai Ganesh Co-operative Housing
Society
Vile Parle (E), Mumbai & Others ..Petitioners
Versus
The District Collector, Mumbai
& Others ..Respondents
WITH
WRIT PETITION NO.368 OF 2020
Sanjay Vasudev Dhage ..Petitioner
Vile Parle (E), Mumbai
Versus
The District Collector, Mumbai
& Others ..Respondents
WITH
WRIT PETITION NO.4721 OF 2022
Mahanagar Telephone Nigam Ltd ..Petitioner
Versus
The State of Maharashtra & Ors ..Respondents
Mr.Vishal Kanade, with Vincent D'silva, Advocates for
the Petitioner in WPL.5467/22.
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Mr. Manish V. Khadakban i/b Anilkumar Patil,
Advocates for the Petitioner in WP.418/19 & WP.368/20
Ms.Dikshita Gupte with Prasanna Gupte, Advocates for
the Petitioner in WP.4721/22.
Mr.Sunit A. Mane, Advocates for the Applicant in
IA.1230/23.
Mr.Karan Bhosale i/b NCB Law, Advocates for the
MTNL in WP.418/19, WPL.5467/22 & WP.368/20.
Ms.Neha Bhosale i/b NDB Law, for the MTNL in
WP.418/19, WPL.5467/22 & WP.368/20.
Mr.Ashish S. Gaikwad, for the SRA in WP.4721/22.
Mr.P. N. Diwan, Advocates for the SRA in WPL.5467/22.
Mr. Girish Utangale with Rohan Sawant, Advocates for
the SRA in WP.418/19.
Ms.Sayali Apte with Shreya Shah i/b P. G. Lad,
Advocates for the MHADA In WP.368/20.
Ms.Sukanta Karmkar, AGP, for the Respondent State
in WP.5467/22.
Mr.Hemant Haryan, AGP, for the Respondent State in
WP.418/19.
Mr.S. B. Gore, AGP, for the Respondent State in
WP.4721/22.
Mr. Ashok R. Varma with Y. S. Bhate, Vineet Jain, for
the UOI in WPL.5467/22.
CORAM : B. P. COLABAWALLA, J &
M. M. SATHAYE, JJ.
RESERVED ON : 21st July, 2023
PRONOUNCED ON : 1st December, 2023
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JUDGMENT:[ Per B. P. Colabawalla, J.] At the outset, we must state we heard the above Writ Petitions on 21st July 2023 and reserved it for judgment. Thereafter, on 7th August, 2023 the matter was moved before us by the Petitioners in Writ Petition No.4721 of 2022 [Maharashtra Telephone Nigam Ltd] requesting that judgment may not be pronounced for a period of four weeks as MTNL has received some proposal from the Developers [the Petitioners in Writ Petition (L) No.5467 of 2022] and which is under consideration by MTNL. Considering this request, on 7th August 2023, we recorded that we shall not pronounce our judgment till 4 th September 2023. Thereafter, on 4th September 2023, we were informed that the proposal given by the Developers is rejected by MTNL. We accordingly recorded in our order dated 4th September 2023 that we shall now proceed to pronounce the judgment in due course. This is how we have pronounced the judgment today. 2 The subject matter of the present Petitions is the acquisition of 531.9 Sq. Mtrs of CTS No.1800 of village Ville Parle, Tal. Andheri, Mumbai Suburban District (hereinafter referred to Page 3 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX as the "said land"). The total area of CTS No.1800 is 607.40. Sq. Mtrs.
3 Writ Petition No.4721 of 2022 is filed by Mahanagar Telephone Nigam Ltd (for short "MTNL") inter alia challenging the Notification dated 10th June 2004, and which was published in the Government Gazette dated 30th June 2004, declaring the said land [which forms the subject matter of the Petition] as a "slum area" under Section 4(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short "the Slum Act"). Consequently, MTNL also challenges the Notification dated 25th April 2006 for acquisition of the said land under Section 14 (1) of the Slum Act.
4 Writ Petition (L) No.5467 of 2022 has been filed by one Mr. Subhash Velji Chawda and Anupam Realities Pvt Ltd (hereinafter referred to as "the Developers") inter alia seeking a writ, order or direction to Respondent Nos.1 to 3 to process the application of the Petitioners for development of the said land without insisting upon the NOC of MTNL and directing Respondent Nos.2 & 3 to forthwith issue a revised LOI without any condition of consent or NOC of MTNL for the purposes of Page 4 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX development of the said land. At the outset, Mr. Kanade, the learned counsel appearing on behalf of the Developers, submitted that the dispensation of the NOC of MTNL is sought only to the extent as owners of the said land. In other words, Mr. Kanade submitted that since MTNL is no longer the owner of the said land, the condition imposed that their NOC is required [in their capacity as owners] ought to be dispensed with. He has not asked for dispensation of MTNL's NOC, if it is sought in any other capacity, other than as the owner.
5 Writ Petition Nos.418 of 2019 and 368 of 2020 have been filed by the Slum Dwellers as well as the Slum Society seeking necessary directions to the authorities as well as the Developers to stay the proposed slum rehabilitation under the provisions of the Slum Act till necessary and appropriate clearances, sanctions, No Objection Certificates are granted by the concerned Respondents as well as MTNL. A direction is also sought that MTNL grant the necessary and requisite clearances and NOCs for the proposed rehabilitation scheme, and which is being undertaken by the Developers.
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1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX 6 When all these Petitions came up before us, we found that the result of Writ Petition No.4721 of 2022 (filed by MTNL) will more or less decide the result in the other Writ Petitions also. We say this because if MTNL's Petition succeeds, and we hold that the acquisition of 531.9 Sq. Mtrs of CTS No.1800 is bad in law, then no slum rehabilitation project can proceed especially without the NOC of MTNL. If, on the other hand, we find that the challenge to the acquisition is unjustified, then MTNL cannot be held to be the owner of the said land and consequently, requiring their NOC for the slum rehabilitation project [as owners of the said land], cannot and would not arise. In these circumstances, we heard the parties first on Writ Petition No.4721 of 2022. WRIT PETITION NO.4721 OF 2022 7 As mentioned earlier, this Writ Petition is filed by MTNL inter alia challenging two things. Firstly, they challenge the declaration of the said land as a "slum area" under Section 4(1) of the Slum Act. Consequently, they also challenge the acquisition of the said land under Section 14(1) of the said Act. 8 Before we deal with the arguments canvassed in Writ Petition No.4721 of 2022, it would be necessary to set out some Page 6 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX very brief facts. It is the case of MTNL that land bearing CTS Nos.1718, 1719 & 1800 of village Vile Parle, Tal. Andheri, Mumbai Suburban District (hereinafter referred to as the "Larger Land") was acquired for the construction of a Telephone Exchange Building and staff quarters of the Bombay Telephone, Post and Telegram Department. This acquisition was done on 20 th March 1981 from the original owners by following the proper procedure as laid down in the Land Acquisition Act, 1894. According to MTNL, possession of the Larger Land [and which includes 531.9 Sq. Mtrs. of CTS No.1800 (the said land)] was handed over to the Bombay Telephone, Post and Telegram Department. Thereafter, by a Deed of Sale between MTNL and the President of India dated 30th March 1987 all the assets acquired and owned by/through the Bombay Telephone Service and Delhi Telephone District, was sold, transferred and conveyed to MTNL. This is how MTNL claims to be the owner of the Larger Land, including the said land [ i.e. 531.9 Sq. Mtrs. of CTS No.1800].
9 Since there were slums on the said land [531.9 Sq.Mtrs of CTS 1800], the same was declared as a "slum area" vide a Notification issued under Section 4(1) of the Slum Act. Finally, since the said "slum area" was not being developed, a proposal Page 7 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX was sent by the Slum Society for acquisition of the said land, and which was done under Section 14(1) of the Slum Act. 10 In this factual backdrop, Ms. Dikshita Gupte, the learned advocate appearing on behalf of MTNL, submitted that Section 3C of the Slum Act contemplates declaration of a Slum Rehabilitation Area. She submitted that under Section 3C(1), after publication of any Slum Rehabilitation Scheme, if the Chief Executive Officer, on being satisfied about the circumstances in respect of any land, whether or not previously declared as a slum area, justifying its declaration as the Slum Rehabilitation Area for implementing the Slum Rehabilitation Scheme, shall, after giving the land owners 30 days notice, and after giving a reasonable opportunity of being heard, by an order published in the Official Gazette, declare such land to be a Slum Rehabilitation Area. She submitted that in the facts of the present case, admittedly no notice has been given to the landowner and which is MTNL. This apart, she relied upon Section 3Z-6 of the Slum Act to contend that notwithstanding anything contained in the Slum Act, nothing in Chapter I-C shall apply to inter alia lands belonging to the Central Government or any entity thereof unless the same is voluntarily offered for the housing scheme. She submitted that MTNL, being Page 8 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX a Company owned and controlled by the Central Government, is an entity thereof and any lands belonging to this entity cannot be utilized for any housing scheme unless voluntarily offered by MTNL. If this be the case, then, the entire acquisition proceedings are bad, was the submission.
11 We have heard Ms. Gupte at some length on this contention. After going through the relevant provisions of the Slum Act, we find absolutely no merit in the contention canvassed by Ms. Gupte as it proceeds on an entirely wrong premise. The question of Section 3C coming into the picture would arise only when, after the publication of a Slum Rehabilitation Scheme [under Section 3B], there is a declaration of a Slum Rehabilitation Area. In the present case, no land belonging to MTNL is declared as a Slum Rehabilitation Area as contemplated under Section 3C. Once this is the case, there is no question of giving any notice to MTNL as contemplated under the said Section. To put it in a nutshell, if there is no declaration under Section 3C, there is no question of giving any notice. As far as the reliance placed on Section 3Z-6 is concerned, we find that even this provision relied upon is of no consequence to the acquisition at hand. Section 3Z-6 specifically stipulates that the provisions of Chapter I-C shall not Page 9 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX apply in certain cases. Section 3Z-6 then stipulates that nothing in Chapter I-C shall apply to lands belonging to the Central Government or any entity thereof unless the same is voluntarily offered in the housing scheme. The declaration of the said land as a "slum area" [under Section 4(1)] is not under Chapter I-C but under Chapter-II of the Slum Act and even the acquisition of the said land is under Chapter-V of the said Act. In these circumstances, we fail to understand, how reliance can be placed on the provisions of Section 3Z-6 to nullify the entire acquisition. In these circumstances, we find that this argument/contention is wholly misconceived and misplaced.
12 Faced with this situation, Ms. Gupte then contended that no notice was given to the landowner even before the said land was declared as a "slum area" under Section 4(1) of the Slum Act. If this be the case, there was no question of there being any acquisition of the said land for rehabilitating the slum dwellers squatting thereon. This apart, once again reliance was placed on Section 3Z-6 to contend that since the said land belonged to the Central Government or any entity thereof, it could not have been declared as a "slum area" under Section 4(1) of the Slum Act. Page 10 of 25
1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX 13 We have heard Ms. Gupte at quite some length on the issue of whether any notice is required to be issued MTNL [the landowner at the time] before the said land was declared as a "slum area" [under Section 4(1) of the Slum Act]. Since a declaration of a particular land as a "slum area" is to be issued under Section 4 of the Slum Act, it would be apposite to reproduce the same:-
"4. Declaration of slum areas (1) Where the Competent Authority is satisfied that-
(a) any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by reason of the area having inadequate or no basic amenities, or being insanitary, squalid, overcrowded or otherwise; or
(b) the buildings in any area, used or intended to be used for human habitation are -
(i) in any respect, unfit for human habitation; or
(ii) by reasons of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or convenience of the public of that area, the Competent Authority may, by notification in the Official Gazette, declare such area to be a slum area. Such declaration shall also be published in such other manner (as will give due publicity to the declaration in the area) as may be prescribed.
Explanation.- For the purposes of clause (b), the expression "buildings" shall not include,-
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(a) cessed buildings in the island City of Mumbai as defined in clause (7) of section 2 of the Maharashtra Housing and Area Development Act, 1976, or old buildings belonging to the Corporation;
(b) building constructed with permission of the relevant authority at any point of time;
(c) any building in an area taken up under the Urban Renewal Scheme.
(2) In determining whether buildings are unfit for human habitation for the purposes of this Act, regard shall be had to the condition thereof in respect of the following matters, that is to say,-
(a) repairs;
(b) stability;
(c) freedom for damp;
(d) natural light and air;
(e) provision for water-supply;
(f) provision for drainage and sanitary
conveniences;
(g) facilities for the disposal of waste water; and the building shall be deemed to be unfit as aforesaid, if, and only if, it is so far defective in one or more of the said matters that it is not reasonably suitable for occupation in that condition.
(3) Any person aggrieved by a declaration made under sub- section (1) may, within thirty days after the date of such declaration in the Official Gazette, appeal to the Tribunal. No such appeal filed after the expiry of thirty days as aforesaid shall be entertained.
(4) When an appeal is presented under sub-section (3), the Tribunal shall, by a public notice published in a newspaper in the Marathi language circulating in the local area in which the slum area is situated and also displayed at some conspicuous place in the slum area, call upon the residents of the slum area to file their objections, if any, to the appeal within a period of fifteen days from the date of publication of Page 12 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX such public notice in the newspaper as aforesaid, either by themselves or through any association of residents in the slum area of which they are members.
(5) On expiry of the period of fifteen days as aforesaid the Tribunal shall fix a day for hearing the appeal and inform the appellant about the same by letter under certificate of posting and the residents of the slum area by displaying the notice of hearing at some conspicuous place in the slum area and upon hearing the appellant and the residents or representative of their association in the slum area, if present, or on considering the written objections, if any, made by such residents or association, if absent, the Tribunal may, subject to the provisions of sub-section (6), make an order either confirming, modifying or rescinding the declaration; and the decision of the Tribunal shall be final.
Explanation-For the purpose of sub-section (4) and this sub- section, the expression "any association of residents in the slum area" means a society, if any, of such residents registered under the Societies Registration Act, 1860 or under the Maharashtra Co-operative Societies Act, 1960. (6) While deciding the appeal the Tribunal shall ignore the works of improvement executed in such slum area by any agency of the Government or any local authority after the declaration thereof as such slum area by the Competent Authority under sub-section (1)."
14 We find that under the scheme of Section 4, and which deals with a declaration of a particular land as a "slum area", does not contemplate any notice being issued to the landowner. A declaration under Section 4(1) is given by the Competent Authority only once it's satisfied that a particular area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by reason of that Page 13 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX area having inadequate or no basic amenities, or being insanitary, squalid, overcrowded or otherwise. The Competent Authority can also declare a particular area as a "slum area" when buildings in that area, used or intended to be used for human habitation are in any respect unfit for human habitation, or by reasons of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, is detrimental to the health, safety or convenience of the public of that area. Sub-section (3) of Section 4 clearly gives a right of appeal to any person aggrieved by such declaration to approach the Slum Tribunal [under the Slum Act] within a period of 30 days from the date of the said declaration. In fact, the statute also stipulates that no such appeal filed after the expiry of 30 days shall be entertained. At least under Section 4, it is clear that at the time of declaring a particular land as a "slum area", no notice is required to be given to the landowner. Further no other provision under the Slum Act or the Rules framed thereunder have been brought to our attention which stipulate that before a particular land is declared as a "slum area" [under Section 4(1)], notice has to be issued to the landowner. Further, the landowner, who is aggrieved by such declaration, and which would then be in Page 14 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX the public domain [as the same is notified in Official Gazette], would have to challenge such declaration before the Slum Tribunal within 30 days of such declaration. We therefore find the argument canvassed by Ms. Gupte that non issuance of notice to the landowner before issuing a declaration under Section 4(1) is fatal to the acquisition, is wholly unfounded. At least Section 4 does not anywhere contemplate that notice has to be given to the landowner before his land is notified as a "slum area". This is apart from the fact that in the present case a public notice dated 22nd December 2003 was published in the newspaper before the said land was declared as a "slum area" under section 4(1) of the Slum Act. In fact, the entire procedure followed by the authorities before declaring the said land as a "slum area" is set out in paragraphs 6 to 11 of the Affidavit dated 12 th June 2023 filed by Respondent Nos. 2 & 3.
15 As far as the reliance placed on Section 3Z-6 (g) is concerned, as stated earlier, Section 3Z-6 categorically contemplates that notwithstanding anything contained in the Slum Act, nothing in Chapter I-C shall apply inter alia to the lands belonging to the Central Government or any entity thereof unless the same is offered voluntarily for the housing scheme. In fact, the Page 15 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX heading of the sub-section itself says that the provisions of Chapter I-C are not to apply in certain areas. The declaration of the MTNL's land as a "slum area" is not under Chapter I-C but under Chapter II of the Slum Act. In these circumstances, we find that the reliance placed on Section 3Z-6 (g) to buttress the argument that no land belonging to the Central Government and/or entity thereof can be declared as a "slum area" is wholly misconceived. This is apart from the fact that the Central Government has filed an Interim Application in Writ Petition (L) No.5467 of 2022 wherein, it has stated that the Union of India/Department of Telecommunication has not retained the said land for any purpose, and therefore, MTNL is a proper and necessary party to safeguard its interest in its asset and that the Union of India/department of Telecommunication has no role to play in the matter. In fact, in this Interim Application, Union of India has also categorically stated that MTNL is a board driven public Sector Undertaking and MTNL's management is completely free to decide and finalize its commercial business and administrative policies. The Government does not interfere in its day-to-day affairs, including administrative matters. We, therefore, find no merit in the argument canvassed by Ms. Gupte that the declaration of the said land as a "slum area" under Page 16 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX Section 4 (1) of the Slum Act, is contrary to law or suffers from any legal infirmity.
16 This now leaves us to deal with the argument of Ms. Gupte that the acquisition of the said land under Section 14 (1) is bad because no notice was served on the landowner (MTNL) as contemplated under the proviso to the said Section. Before we deal with this argument, it would be apposite to set out the provisions of Section 14 of the Slum Act which read thus:-
"14. Power of State Government to acquire land"
(1) Where on any representation from the Competent Authority it appears to the State Government that, in order to enable the Authority to execute any work of improvement or to redevelop any slum area or any structure in such area, it is necessary that such area, or any land within adjoining or surrounded by any such area should be acquired the State Government may acquire the land by publishing in the Official Gazette, a notice to the effect that the State Government has decided to acquire the land in pursuance of this section:
Provided that, before publishing such notice, the State Government, or as the case may be, the Competent Authority may call upon by notice the owner of, or any other person who, in its or his opinion may be interested in, such land to show cause in writing why the land should not be acquired with reasons therefor, to the Competent Authority within the period specified in the notice; and the Competent Authority shall, with all reasonable despatch, forward any objections so submitted together with his report in respect thereof to the State Government and on considering the report and the objections, if any, the State Government may pass such order as it deems fit.
(1A) The acquisition of land for any purpose mentioned in sub-section (1) shall be deemed to be a public purpose.Page 17 of 25
1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX (2) When a notice as aforesaid is published in the Official Gazette, the land shall, on and from the date on which the notice is so published, vest absolutely in the State Government free from all encumbrances."
17 Section 14 comes under Chapter V of the Slum Act and which Chapter basically deals with the procedure for acquisition. Section 14 (1) contemplates that where on any representation from the Competent Authority it appears to the State Government that in order to enable the Authority to execute any work of improvement or to redevelop any slum area or any structure in such area, it is necessary that such area, or any land, within the adjoining or surrounded by any such area should be acquired, the State Government may acquire the land by publishing in the Official Gazette, a notice to the effect that the State Government has decided to acquire the land in pursuance of this Section. Sub-section (2) of Section 14 contemplates that when a notice as aforesaid is published in the Official Gazette, the land shall, on and from the date on which the notice is so published, vest absolutely in the State Government free from all encumbrances. However, there is a caveat to this. The proviso to Section 14(1) stipulates that before publishing such notice, the State Government, or as the case may be, the Competent Authority, may call upon by notice, the owner or any other person Page 18 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX who, in its opinion may be interested in such land, to show cause in writing why the land should not be acquired. If there is any objection/s received, the Competent Authority then, with all reasonable despatch, forward the objection/s so submitted together with its report in respect thereof to the State Government. Thereafter, the State Government, on considering the report and the objections, if any, may pass such order as it deems fit.
18 There is no doubt that before any acquisition takes place under Section 14(1), notice has to be issued to the landowner to show cause why the said land ought not be acquired. In the facts of the present case, the Slum Authority (SRA) has filed an affidavit dated 12th June, 2023 in which it is categorically stated that a public notice for raising objections, if any, was published in the newspaper and specific notice for raising objections, if any, was also issued to the landlords of the said land as well as the Divisional Engineer (L. A.) Land Acquisition, Mahanagar Telephone Nigam Ltd, Telephone House (East Wing), V. S. Marg, Dadar (W), Mumbai 400 028, on 2nd July, 2005. It is further stated in the said affidavit that the said notice issued to MTNL was duly received by the Incharge Central Registry, MTNL, Telephone Page 19 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX House, Prabhadevi Bombay 400 028 on 8th July 2005. Its acknowledgment is also annexed to the affidavit as Annexure-3. 19 In answer to this, Ms. Gupte drew our attention to the affidavit in rejoinder filed by the Petitioner wherein the Petitioner has stated that the alleged acknowledgment of MTNL, cannot be authenticated and the Petitioner had verified the records of the Central Registry Unit and confirms that no such notice has been received by the Petitioner. In this affidavit, it is also stated that the notice number seems to have been appended later on as an afterthought to the envelope allegedly addressed to MTNL and the authenticity of which is questionable.
20 We find that the statements made in this affidavit (in rejoinder) are very carefully worded. The acknowledgment has been produced by the SRA to establish the notice being served on MTNL. MTNL does not in its affidavit allege that the endorsement of MTNL on the said acknowledgment is either forged or fabricated. What they allege is that, on the envelope, something has been appended later to somehow link that envelope to the letter addressed by the SRA to MTNL establishing that the said notice has been duly served. We are afraid that in light of the Page 20 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX acknowledgment produced by the SRA and when there is no allegation that the acknowledgment produced is forged or fabricated, we are unable to accept this submission. This contention anyway, is in the realm of disputed questions of fact and therefore can not be gone into in Writ jurisdiction of this Court. Even otherwise, we find that this argument is made too late in the day. The property of MTNL was admittedly acquired under Section 14(1) by publication in the Official Gazette on 25 th April 2006. Hence, the fact that the MTNL's property was acquired was in the public domain in the year 2006 itself. Yet, the present Petition is filed in the year 2022. Faced with this, Ms. Gupte contended that MTNL came to know of this acquisition only when the name of the Government of Maharashtra was recorded in Mutation Entry No.1782 of 2019 in relation to the said land. We are afraid we are unable to accept this argument for such a long delay. The fact of the matter is that the acquisition of the said land was published in the Official Gazette on 25 th April 2006. Hence, it was in the public domain. MTNL, therefore, cannot be heard to say that they were unaware of the acquisition till the year 2019. This argument is stated only to be rejected. Further, we find that MTNL has, as far back as on 31st December 2012, issued a provisional NOC to the Developers for the proposed Slum Page 21 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX Rehabilitation Scheme on the said land. Their letter in fact says that final NOC will be issued on the fulfillment of the conditions mentioned in the provisional NOC. For the sake of ready reference, the said letter is reproduced hereunder:-
Mahanagar Telephone Nigam Limited, Mumbai (A Government Of India Enterprise) % Senior Manager (IGS), 6th Floor, Telephone House, V.S. Marg, Prabhadevi, Mumbai-400 028 To: M/s. C. Subhash and Associates 2, Ganesh Bhuvan, Daftary Road, Malad (E) Mumbai-400 097.
No.Sr.Manager (IGS)/NOC BLDG/W-I/149/2012-13 Date 31/12/2012 PROVISIONAL NO OBJECTION CERTIFICATE; VALID FOR ONE YEAR FROM THE DATE OF ISSUE.
Sub: Issue of Provisional NOC for Proposed S.R. Scheme on plot bearing C.T.S. No.1800, 1801, and 1801/1 to 13, of Village Vile Parle (E) F.P. No.307 (pt),308(pt), 309(pt) and 310(pt) TPS Vile Parle No.V of Nanada Patkar Road, Vile Parle (East), Mumbai Ref:No.SRA/ENG/910/KE/STGL/LOI Dated:22/10/2012.
Kindly refer to your letter No.nil Dated 06/11/2012 on the above subject. The matter was examined with respect to the drawings and questionnaire submitted by you. This is to intimate you that "PROVISIONAL NO OBJECTION CERTIFICATE" is hereby accorded on behalf of MTNL Mumbai for carrying out building construction work subject to the fulfillment of following conditions w.r.t. the Floor Plan attached:-
1. One hand hole is to be provided at the entrance of the compound of building (location A in floor plan) of size 1 x 1 x 0.6 m Other hand holes at entrance of the building (location E in floor plan), and at location B, C & E in floor plan attached herewith.
2. 110 m.m. HDPE pipes marked as "MTNL Duct" on Floor Plan, are to be laid between hand holes.
3. 63 m.m. PVC pipes has to be laid from last hand hole to the D.P. Box.
4. Space for D.P. Box is to be provided in each wing.
5. U/G cable will be laid by MTNL in each wing.
6. Separate pipe exclusively for Telecom facilities is to be provided in the building to ensure proper maintenance without affected other services like cable TV, Internet etc. The above works may be carried out in consultation with Deputy General Manager External of Vile Parle Telephone Exchange area. On fulfillment of the above mentioned conditions the same is be intimated to this office.
Final NOC will be issued on fulfillment of the above conditions. For any further clarification you may contact the u/s personally or on telephone Nos.24362165 or 24310444 or Fax 24311002. Thanking you, sd/-
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Encl.As mentioned above.
21 Thereafter, another letter dated 16 th June 2014 is addressed by MTNL to the Chief Executive Officer-Slum Rehabilitation Authority, wherein MTNL has issued a NOC for cable laying and wiring of telecom facility in the proposed building. At least these two letters prima facie show that MTNL was very much aware that the Slum Scheme was being implemented by the Developers on the said land. We, therefore, find no merit in the contention of Ms. Gupte that MTNL became aware of the acquisition only in the year 2019. Hence, even on the ground of delay and laches, we do not think that MTNL is in a position to challenge the acquisition on the specious ground that no notice was served on them under the proviso to Section 14 (1) before their land was acquired. For all these reasons, we find no merit in Writ Petition No.4721 of 2022 and the same is hereby dismissed. However, there shall be no order as to costs. WRIT PETITION (L) NO.5467/2022 22 As mentioned earlier, this Writ Petition is filed by the Developers seeking a dispensation of the NOC of MTNL. Mr. Kanade has restricted himself to Condition No.36 of the LOI dated Page 23 of 25 1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX 22nd October 2012 which contemplates that No Objection Certificate from the respective land owning authority shall be obtained within one month from approval of S.R. Scheme as per clause No.2.8 of DCR 33 (10), if any.
23 It was Mr. Kanade's contention that relying upon this Clause, the authorities are insisting on the NOC of MTNL. Since we have held that MTNL is no-longer the owner of the said land, and the same vest in the Government of Maharashtra, there is no requirement of MTNL giving their NOC as contemplated under Condition No. 36 of the LOI dated 22nd October 2012. 24 We however, make it clear that this does not mean that if MTNL's NOC is required under any other clauses of the LOI, the same are dispensed with. It only means that NOC of MTNL is not required as the land owner, since it was divested of its ownership on the acquisition of the said land by the State of Maharashtra.
25 Writ Petition (L) No. 5467 of 2022 is accordingly disposed of in the aforesaid terms. No order as to costs. Page 24 of 25
1st December, 2023 Aswale ::: Uploaded on - 01/12/2023 ::: Downloaded on - 03/12/2023 02:46:24 ::: WPL.5467.22.DOCX WRIT PETITION NO. 418 OF 2019 AND WRIT PETITION 368 OF 2020 26 As far as these two Petitions are concerned, Mr. Manish V. Khadakban, the learned Counsel appearing on behalf of the Petitioners, submitted that if MTNL's NOC is not required as a land owner, then, nothing would really survive in these Writ Petitions because in these Writ Petitions the apprehension was that the slum dwellers would be dis-housed and the project would not go forward because of MTNL refusing to give its NOC. Since now this Court has held that MTNL is not required to give its NOC [as the landowner], these Writ Petitions can be disposed of in terms of this order. It is accordingly so ordered. 27 In these circumstances, all the above Writ Petitions are disposed of. No order as to costs.
28 This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[M. M. SATHAYE, J.] [ B. P. COLABAWALLA, J ]. Page 25 of 25
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