Supreme Court - Daily Orders
Maharashtra Housing And Area ... vs H.I.M.S. Botawala Charities on 20 December, 2024
Bench: Dipankar Datta, Prashant Kumar Mishra
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL N0.14785 OF 2024
(ARISING OUT OF SLP(C) NO.8653 OF 2023)
Maharashtra Housing and Area Development
Authority (MHADA) & Ors. …Appellants
Versus
H.I.M.S. Botawala Charities & Ors. …Respondents
ORDER
1. Leave granted.
2. The challenge in this appeal [at the instance of Maharashtra Housing and Area Development Authority 1, the Mumbai Housing and Area Development Board, the Mumbai Building Repairs & Reconstruction Board2, and the Special Land Acquisition Officer, MHADA 3] is to the judgment and order dated 31st August, 20214 of a Division Bench of the High Court of Judicature at Bombay5. A writ petition6 presented before the High Court by H.I.M.S. Botawala Charities7 and M/s Sarah Housing Development Pvt. Ltd.8 was allowed and the order of acquisition dated 21 st December, 2006 issued by MHADA, impugned in the writ petition, was set aside and quashed.
3. We have heard Mr. M.L. Verma, learned senior counsel for the appellants and Mr. Anupam Lal Das, learned senior counsel for the 1 MHADA 2 MBRRB 3 Signature Not Verified SLAO 4 Digitally signed by rashmi dhyani pant the impugned order 5 Date: 2024.12.20 17:00:08 IST Reason:
High Court 6 Writ Petition No.1366 of 2009 7 Botawala 8 Sarah contesting respondents 1 and 2/writ petitioners9 at some length.
4. The facts giving rise to the writ petition have been noticed in great detail by the High Court; hence, having regard to the order we propose to pass, it is not considered essential to refer to the same here except to the extent required.
5. Suffice it to note, the controversy centres around acquisition of a land admeasuring 4721.60 sq. mtrs. and three buildings standing thereon (Building Nos. 289/299, 299A, and 299B) in Botawala Chawl, Rambhau Bhogale Marg, Mazgaon, Mumbai 400 010, C.S. No. 641 and 642, E-Ward and is assessed by the Municipal Corporation of Greater Mumbai under its Ward Nos. E-7766, E-7767 and E-776810.
6. The writ petition before the High Court, according to Mr. Das, succeeded owing to acceptance of six different grounds, which are traceable to paragraphs 20.2, 20.3, 20.4, 20.7, 21 and 22 of the impugned order containing the reasons assigned by the High Court. In course of hearing, we pointed out to Mr. Das that paragraph 20 and its several sub-
paragraphs, for all intents and purposes, are not the reasons assigned by the High Court for allowing the writ petition; rather, the same contained factual narratives as would be evident from paragraph 20 reading as follows:
“20. Having analyzed the above, we may now advert to the facts of the present case.”
7. Though Mr. Das would not agree, we have no hesitation to hold that paragraph 20 and its sub-paragraphs do not contain any reason, much less 9 writ petitioners 10 property 2 cogent, valid and tenable reason(s), referring to which it could legitimately be contended by the writ petitioners that the same constituted the basis for setting aside and quashing of the impugned order dated 21 st December, 2006.
8. Indeed, paragraphs 21 and 22 appear to be the only paragraphs of the impugned order, running into 40 paragraphs and spread over 40 pages, containing the solitary reason that weighed with the High Court to set aside and quash the impugned order dated 21 st December, 2006. It would, therefore, be necessary for us to examine how far such reason is cogent, valid and tenable.
9. The High Court held that acquisition of the property of the writ petitioners stood vitiated because of failure/neglect/omission of MHADA to serve notice under sub-section (3) of section 93 of the Maharashtra Housing and Area Development Act, 1976 11. In our considered opinion, the line of reasoning that weighed with the High Court is plainly erroneous for the reason that follows.
10. It has been brought to our notice that the impugned order dated 21 st December, 2006 was, in fact, a notification bearing no.
LAQ/MHADA/ACT/347 dated 21st December, 2006, which had been published in the Maharashtra Official Gazette 12 dated 11th January, 2007. The recital of the said notification referred to approval by the State Government, under section 93(1) of the MHADA Act, of an acquisition proposal of the MBRRB in pursuance whereof such proposal for acquisition had been published in the Gazette dated 7 th July, 2005 and in 4 (four) 11 MHADA Act 12 Gazette 3 newspapers circulating within Greater Mumbai and was served on the persons concerned (i.e. owners/tenants/concerned Government officers), whereafter it was followed by consideration of the objections and suggestions received upon extending reasonable opportunity of hearing by the SLAO. Accordingly, the SLAO recorded his satisfaction that the said acquisition proposal should be sanctioned with modifications and had the notification dated 21st December, 2006 published in the Gazette for general information in exercise of powers conferred by sub-section (5) of section 93 of the MHADA Act and all other powers enabling him in that behalf, as follows: – “(1) Sanctions the said acquisition proposal forwarded by the said Board in respect of the said lands with the existing building thereon (if any) described in the schedule hereto appended with appropriate modifications.
(2) Fixes the day of publication of this order in the Official Gazette, as the date on which said acquisition proposal as sanctioned shall become operative.
(3) Issues the clearance and compulsory acquisition order in respect of the said lands with the existing building thereon (if any).
Notes.─(1) The acquisition proposal as sanctioned by the Special Land Acquisition Officer, Maharashtra Housing and Area Development Authority, Mumbai City is kept open for inspection by the public in the office of the Special Land Acquisition Officer, Maharashtra Housing and Area Development Authority, Mumbai City at Third Floor, Old Custom House, Shahid Bhagatsingh Marg, Fort, Mumbai 400
001. (2) On and from the date of publication of the order in the Official Gazette, the said land with the existing building thereon (if any) shall vest absolutely in the Board on behalf of the Authority free from all encumbrances.
Schedule 4 The Land admeasuring 4721.60 sq. mtrs. With buildings No. 289-299, 299A, 299B, Botawala Chawl, Rambhau Bhogale Marg, Mazgaon, Mumbai 400 010, C. S. No. 641 and 642, E- Ward and is assessed by Municipal Corporation of Greater Mumbai under its Ward Nos. E-7766, E-7767, E-7768.
G. C. MANGLE, Special Land Acquisition Officer, Maharashtra Housing and Area Development Authority, Mumbai City Mumbai, dated 21st December 2006”
11. Although, it has been contended by Mr. Das that the schedule referred to in the notification dated 21st December, 2006 did not cover all the 6 (six) buildings on the relevant plot but covered only 3 (three), nothing much turns on it. Despite there being no reference to all 6 (six) buildings standing on the property, the measurement of the relevant plot indicated therein covered the entire plot area. Not only that, it is the admitted case of the writ petitioners that all the 423 (four hundred twenty three) occupants of the 6 (six) buildings had shifted to the transit camps maintained by the MHADA for which the writ petitioners paid charges to the MHADA. Inference that can legitimately be drawn is that not only the writ petitioners but also the occupants of the said 6 (six) buildings were aware of the acquisition proposal. It is, therefore, not a case where owing to non-service of individual notice on the writ petitioners or the occupants, either the writ petitioners or the occupants were prejudiced in any manner. Besides, the order dated 21 st December, 2006 (being an Annexure to the writ petition, at page 209 of the paper book), which the petitioners described as an order of acquisition of the property by the MHADA and had challenged in the writ petition, is a convenient type- 5 written copy without any indication given by the writ petitioners of the same being a statutory notification issued under sub-section (5) of section 93 of the MHADA Act and that such notification dated 21 st December, 2006 was also published in the Gazette dated 11 th January, 2007. We hold that by reason of publication of the notification dated 21 st December, 2006 in the Gazette on the aforesaid date and the recitals therein as to previous publication of the acquisition proposal in the Gazette and in 4 (four) newspapers, the same amounted to full compliance with the provisions of section 93 of the MHADA Act and that apart from both the writ petitioners, all the occupants of the 6 (six) buildings comprised in the property were put on notice; therefore, it was not a case of “no notice” under section 93 of the MHADA Act as projected by the writ petitioners, thereby warranting judicial interdiction of the High Court to secure their rights under Article 300A of the Constitution of India which they claimed to have been abridged. The sole reason based whereon the High Court allowed the writ petition being unsustainable, we have no option left but to set aside the impugned order.
12. It appears that the writ petitioners, apart from challenging the order of acquisition dated 21st December, 2006, had raised certain other points in the writ petition which were not examined by the High Court. Such points were urged referring to the provisions of Regulations 33(7) and 33(9) of the Development Control Regulations 13. We have also found that the appellants had objected to the maintainability of the writ petition before the High Court on the ground of acquiescence. The High Court, for 13 DCR 6 the reason assigned in the impugned order, overruled the objection as regards acquiescence.
13. In course of hearing, we had the occasion to notice a couple of important events/developments which perhaps escaped the notice of the High Court or, to be fair to the High Court, was neither placed nor seriously urged by the respondent authorities before it. All these give rise to contentious issues, as we shall notice hereafter.
14. First, we refer to a letter dated 2nd August, 2007 issued by Sarah addressed to the Resident Engineer, MBRRB. The said letter reads as under:
“… Sub : Proposed redevelopment of property bearing C.S. No. 641 & 642 of Mazgaon Division at Rambhau Bhogle Marg, bearing Cess No. 7766, 7767, 7784(2), 7773, 7775 and 7764-65 Known as Botawala Chawl.
Dear Sir, With reference to above mentioned subject and in continuation of our Architect Mr. S. S. Ratansi’s letter dt. 29 th May, 2007 we enclose herewith the following documents –
1. Notarised undertaking to handover the unacquired part of the property.
2. Charity Commissioner’s N. O. C.
3. Sale Deed between ourselves & the earlier Owner M/s. H. I. M. S. Botawala Charities.
In view of above kindly issue us L. O. I. in favour M/s. Sarah Housing Development Pvt. Ltd. for joint venture at your earliest and oblige. ……….” (emphasis supplied)
15. The Chief Officer, MBRRB by his letter dated 10 th August, 2007 informed Sarah that it had no objection to the MCGM being approached for 7 obtaining an Intimation of Disapproval (IoD) and to get the plans of the proposed buildings approved with the permissible Floor Space Index (FSI) in accordance with the provisions of DCR 33(9) read with 33(7) as a joint venture and that the validity of the same is only for six months. Sarah was also cautioned in the following terms:
“…..Please note that this letter should not be construed as NOC, but only a letter asking you to apply to MCGM for obtaining an IOD and an approval for the proposed building plans so that the same can be shown to the tenants/owners for their information & knowledge for executing consent/agreement.
The registered copy of sale agreement shall be submitted before submission of proposal to Government for approval to Joint Venture under DCR 33(9). ….”
16. Admittedly, the aforesaid two documents were not placed on record by the writ petitioners. We place on record that these two documents surfaced only in the course of hearing before us, while Mr. Verma was responding to our queries.
17. It is strange that such vital documents by which Sarah proposed redevelopment of the property as a joint venture and requested for issuance of Letter of Intent (LoI) and the subsequent response of the Chief Officer, MBRRB were not placed on record before the High Cout even by the appellants.
18. Whether the writ petitioners suppressed vital and material documents or whether the respondents before the High Court acted hands in glove with the writ petitioners, is an issue which needs to be looked into by the High Court.
19. The next event of relevance is this. Mr. Verma invited our attention to 8 the fact that Botawala and 4 (four) others as plaintiffs had instituted a civil suit14 before the Civil City Court at Bombay seeking, inter alia, the following relief:
“a. Declare that notice dated 21/12/2006 issued by Defendant No.1 as per copy Exhibit 1 hereto is illegal, bad in law and hence be cancelled.
b. That Defendants, their officers, servants and agents be restrained by permanent order of injunction from taking any further steps in acquisition of the suit property as per said notice dated 21/12/206 and disturb possession of the Plaintiffs and their tenants residing in the said chawl and carry development of the suit property.
c. That Defendants their servants and agents be directed to allow the Plaintiffs to carry out development of the suit property and fulfill the objects which are to be achieved by Defendants by acquisition of the property and allow the Plaintiffs to carry out development of the suit property by accommodating all the tenants in the said property by its complete development.” Such suit, however, was withdrawn by the plaintiffs [Botawala and 4 (four) four others] on 23rd November, 2007. The order passed by the civil court while permitting the plaintiffs to withdraw the suit, granted them liberty to file a fresh one, subject to limitation.
20. According to Mr. Verma, instead of pursuing the channel of civil litigation, the writ petitioners changed track and approached the High Court under Article 226 of the Constitution. Having withdrawn the civil suit with liberty to file a fresh suit, according to him, the writ petition was not maintainable.
21. Mr. Das has referred to the provisions of section 177 of the MHADA Act read with section 71 thereof to contend that there is a bar to institute a civil suit and that is the reason why the writ petitioners, instead of approaching the civil court again after withdrawal of the civil suit, had 14 SC 881 of 2007 9 invoked the writ jurisdiction of the High Court.
22. Whether the civil court’s jurisdiction is barred is a point which ought to be considered having regard to the nature of the action that was impugned. If a civil suit is found to be barred, invocation of writ jurisdiction cannot be objected to. However, once again, this point too does not appear to have been raised before the High Court and hence, not addressed.
23. The third development has its roots in a Supplementary Agreement dated 24th July, 2017 executed by and between the MHADA and Sarah, whereby certain terms of the original agreement being a Joint Venture Agreement dated 10th March, 2014 were modified. Clause R of the supplementary agreement reads as follows:
“R. M/s Sarah Housing Development Pvt. Ltd. is required to pay the value of the land as decided by Empowered Committee under modified DC regulation 33(9) dated 09/09/2014 instead of 25% of land value as per the original amended DC regulation 33(9) dated 02/03/2009. Accordingly M/s Sarah Housing Development Pvt. Ltd. hereby undertake to pay such amount towards the land value as and when decided by Empowered Committee as per the provision of modified D.C. Regulation 33(9) dated 09/09/2014 and as applicable to similar developments subject to the final outcome in the Writ Petition No.1366 of 2009 (H.I.M.S. Botawala Charities & Anr. v State of Maharashtra & Ors) pending before Hon’ble High Court of Mumbai.”
24. It has been contended on behalf of the appellants by Mr. Verma that though Sarah was required to pay the value of the land as decided by the Empowered Committee under modified DCR 33 (9), and undertook to pay such amount towards the land value as and when decided by the Empowered Committee, no such payment had been made.
25. Mr. Das was quick in his response that payment, if any, required to be 10 made by the writ petitioners was subject to the final outcome of the writ petition and since the writ petition stood allowed, the question of payment in terms of clause R did not arise.
26. The mutual obligations of the parties to these two agreements and effect thereof would also have to be appreciated, in the absence of any finding in the impugned order of the High Court.
27. Finally, it has been claimed by Mr. Verma that a balance sum of Rs.2.48 crore is due and payable by the writ petitioners to the MHADA towards transit camp occupation charges. Mr. Das wasted no time in denying liability in this behalf.
28. We have observed above that the High Court proceeded to allow the writ petition on the sole ground of non-service of notice. Contentious issues do arise for consideration in the light of all these events/developments, which require to be decided upon granting opportunity to all the parties. We do not propose to examine, as the court of first instance, all such contentious issues. This is, therefore, a fit case for directing a remand, which we hereby order upon our interference with the impugned order.
29. The ground on which the writ petition succeeded having been found to be unsustainable, the impugned order is set aside. Writ Petition No.1366 of 2009 on the file of the High Court shall stand revived. The High Court shall examine all other points arising for decision before it except the point of non-service of notice under section 93 of the MHADA Act.
30. The letter dated 2nd August, 2007 and the response dated 10th August, 2007, as well as the Joint venture Agreement dated 10 th March, 2014 and 11 the Supplementary Agreement dated 24 th July, 2017, referred to above, were not part of the records before the High Court. While the letter and the response were tendered across the bar for the first time before this Court, the agreements have been brought on record through applications for relying on additional documents. Opportunity has to be given to the writ petitioners to counter these documents. Hence, we grant liberty to the appellants to place all such letters/responses/agreements that they consider relevant on the record of the High Court, for an appropriate decision on the writ petition, by filing a supplementary affidavit within a month from date. The supplementary affidavit may also include the objections that the appellants might have not only regarding the maintainability and/or entertainability of the writ petition on points of acquiescence, suppression of material facts, etc., but also on the merits of the claims of the writ petitioners. The writ petitioners shall have a fortnight’s time to file reply affidavit to the supplementary affidavit of the appellants, if at all the same is filed. The writ petition shall first be considered on the ground of maintainability and/or entertainability, if raised by the appellants, bearing the distinction of maintainability and entertainability of a writ petition in mind, as laid down by this Court in Godrej Sara Lee v. Excise and Taxation Officer 15; and if such objection is overruled, the High Court shall consider all other grounds that the writ petitioners would urge to have the impugned acquisition set aside. We make it clear that the ground of non-service of notice shall, however, not be re-examined by the High Court.
15 2023 SCC OnLine SC 95 12
31. Having regard to the fact that the writ petition is quite old, we request the roster Bench to decide the same as early as possible, and subject to its convenience, preferably within six months from date of receipt of a copy of this order by the Registry of the High Court.
32. The appeal stands disposed on the aforesaid terms together with the pending applications, if any.
...........................................J. (DIPANKAR DATTA) ……………..............................J. (PRASHANT KUMAR MISHRA) New Delhi;
December 20, 2024.
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ITEM NO.76 COURT NO.16 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).8653/2023 [Arising out of impugned final judgment and order dated 31-08- 2021 in WP No.1366/2009 passed by the High Court of Judicature at Bombay] MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY (MHADA) & ORS. Petitioners VERSUS H.I.M.S. BOTAWALA CHARITIES & ORS. Respondents (with I.A. No.245038/2024-APPLICATION FOR PERMISSION, I.A. No. 16425/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT, I.A. No.46832/2024-EXEMPTION FROM FILING O.T., I.A. No.64852/2023-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES, I.A. No.37966/2023-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ ANNEXURES and I.A. No.16422/2023-PERMISSION TO FILE LENGTHY LIST OF DATES) Date : 20-12-2024 This matter was called on for hearing today. CORAM : HON'BLE MR. JUSTICE DIPANKAR DATTA HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA For Petitioner(s) Mr. M. L. Varma, Sr. Adv.
Mr. Chirag M. Shroff, AOR Mrs. Mahima C Shroff, Adv.
Mr. Anand Thumbayil, Adv.
Mr. Sushant Dogra, Adv.
For Respondent(s) Mr. Shishir Deshpande, AOR Mr. Amit Yadav, Adv.
Mr. Nilakanta Nayak, Adv.
Mr. Aaditya Aniruddha Pande, AOR Mr. Siddharth Dharmadhikari, Adv.
Mr. Sourav Singh, Adv.
14 UPON hearing the counsel the Court made the following O R D E R
1. Leave granted.
2. The appeal stands disposed of in terms of the signed order.
3. Pending application(s), stands disposed of.
(RASHMI DHYANI PANT) (SUDHIR KUMAR SHARMA)
COURT MASTER (SH) COURT MASTER (NSH)
(signed order is placed on the file)
15