Bombay High Court
Kinjal Kantilal Maru vs The State Of Maharashtra And 2 Ors on 10 March, 2023
Author: R. N. Laddha
Bench: G. S. Kulkarni, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 23110 OF 2021
Kinjal Kantilal Maru ... Petitioner
Versus
The State of Maharashtra & Ors. ... Respondents
WITH
WRIT PETITION (L) NO. 505 OF 2022
WITH
WRIT PETITION (L) NO. 644 OF 2022
WITH
WRIT PETITION (L) NO. 649 OF 2022
WITH
WRIT PETITION (L) NO. 653 OF 2022
WITH
WRIT PETITION (L) NO. 699 OF 2022
WITH
WRIT PETITION (L) NO. 701 OF 2022
WITH
WRIT PETITION (L) NO. 724 OF 2022
WITH
WRIT PETITION (L) NO. 766 OF 2022
WITH
WRIT PETITION (L) NO. 771 OF 2022
WITH
WRIT PETITION (L) NO.773 OF 2022
WITH
WRIT PETITION (L) NO. 775 OF 2022
WITH
WRIT PETITION (L) NO. 785 OF 2022
WITH
WRIT PETITION (L) NO. 786 OF 2022
WITH
WRIT PETITION (L) NO. 787 OF 2022
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WITH
WRIT PETITION (L) NO. 792 OF 2022
WITH
WRIT PETITION (L) NO.793 OF 2022
WITH
WRIT PETITION (L) NO.795 OF 2022
WITH
WRIT PETITION (L) NO.796 OF 2022
WITH
WRIT PETITION (L) NO. 797 OF 2022
WITH
WRIT PETITION (L) NO.798 OF 2022
WITH
WRIT PETITION (L) NO. 800 OF 2022
WITH
WRIT PETITION (L) NO. 801 OF 2022
WITH
WRIT PETITION (L) NO.802 OF 2022
WITH
WRIT PETITION (L) NO. 806 OF 2022
WITH
WRIT PETITION (L) NO. 809 OF 2022
WITH
WRIT PETITION (L) NO. 810 OF 2022
WITH
WRIT PETITION (L) NO.812 OF 2022
WITH
WRIT PETITION (L) NO. 817 OF 2022
WITH
WRIT PETITION (L) NO.818 OF 2022
WITH
WRIT PETITION (L) NO.23111 OF 2021
WITH
WRIT PETITION (L) NO.23112 OF 2021
WITH
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WRIT PETITION (L) NO.23113 OF 2021
WITH
WRIT PETITION (L) NO.23140 OF 2021
WITH
WRIT PETITION (L) NO.23142 OF 2021
WITH
WRIT PETITION (L) NO.23154 OF 2021
WITH
WRIT PETITION (L) NO.23155 OF 2021
WITH
WRIT PETITION (L) NO.23197 OF 2021
WITH
WRIT PETITION (L) NO.23204 OF 2021
WITH
WRIT PETITION (L) NO.23497 OF 2021
WITH
WRIT PETITION (L) NO.27155 OF 2021
WITH
WRIT PETITION (L) NO.35275 OF 2022
******
Mr. J. P. Sen, Sr. Adv. a/w Mr. Behzad Irani, and Mr. Sonappa
Nandankar for the Petitioners in Writ Petition (Lodging) Nos.
23110/2021, 23111/2021, 23112/2021, 23113/2021, 23140/2021,
23142/2021, 23154/2021, 23155/2021, 23197/2021 & 23204/2021.
Ms. Afrin Dalal i/b Bahraiz Irani for the Petitioner in Writ Petition
(Lodging) No. 27155 of 2021 a/w 773/2022, 644/2022, 649/2022,
653/2022, 699/2022, 701/2022, 724/2022, 766/2022, 771/2022,
775/2022, 785/2022, 787/2022, 792/2022, 793/2022, 795/2022,
797/2022, 798/2022, 800/2022, 801/2022, 802/2022, 806/2022,
809/2022, 810/2022, 812/2022, 817/2022, 818/2022, 35275/2022.
Mr. Vincent D'Silva a/w Sujit Mane for the Petitioner in Writ Petition
(Lodging) No.23497 of 2021.
Mr. Narendra Walawalkar, Sr. Advocate, a/w Ms. Oorja Dhond and
Ms.Pooja Yadav i/b Sunil Sonawane, for the Respondent/BMC.3 of 5.
Shri Rajaram Jagzap, SE (Main) P/N Ward.
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Ms. P.H. Kantharia, Government Pleader, for the Respondent-State in
Writ Petition (Lodging) Nos.23110/2021, 23111/2021, 701/2022 and
787/2022.
Mrs. Jyoti Chavan, AGP, for the Respondent-State in Writ Petition
(Lodging)Nos. 505/2022, 806/2022 and 809/2022.
Mrs. Uma Palsuledesai, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos. 644/2022, 23197/2021 and 23204/2021.
Mr. Amit Shastri, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos. 649/2022, 699/2022 and 27155/2022.
Mr. L.T. Satelkar, AGP for the Respondent-State in Writ Petition
(Lodging) Nos.653/2022, 23154/2022 and 23155/2022.
Mr. Himanshu Takke, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos.766/2022, 23112/2021 and 23113/2021.
Mr. Milind V. More, Addl. G.P., for the Respondent-State in Writ
Petition (Lodging) Nos.771/2022 and 773/2022.
Mr. Abhay L. Patki, Addl. G.P. for the Respondent-State in Writ Petition
(Lodging) Nos.775/2022 and 785/2022.
Mr. Dushyant Kumar, AGP for the Respondent-State in Writ Petition
(Lodging) Nos.792/2022 and 793/2022.
Mr. M.A. Sayed, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos.795/2022 and 35275/2022.
Mr. Kedar Dighe, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos.797/2022 and 798/2022.
Mr. S. B. Gore, AGP, for the Respodent-State in Writ Petition (Lodging)
Nos.800/2022, 801/2022 and 802/2022.
Mr. Hemant Haryan, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos. 810/2022 and 812/2022.
Mr. Sukanta Karmakar, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos. 818/2022 and 817/2022.
Mr. Manish Upadhye, AGP, for the Respondent-State in Writ Petition
(Lodging) Nos.724/2022, 23140/2021, 23142/2021 & 23497/2021.
******
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__________________________
CORAM: G. S. KULKARNI &
R. N. LADDHA, JJ.
DATE : 10th MARCH, 2023 __________________________ P.C. :-
Heard learned counsel for the parties on interim reliefs.
2. These are batch of petitions filed under Article 226 of the Constitution of India. Similar cause of action is being pursued by the petitioners in all these petitions, as also the pleas as raised are similar. Hence, this common order.
3. We note the relevant facts in the lead matter. The petitioners have structures on a large plot of land which described as land bearing CTS No. 610A/1A/1/1 (part). These structures fall within the 'Road Line' (RL) as demarcated by respondent no.2-the Mumbai Municipal Corporation (for short 'the MCGM'), as per the provisions of Section 297 of the MMC Act (which provide for the ' prescribing of the regular line of the street'), in the public project being undertaken by the MCGM for the widening of the Mulund-Goregaon Link Road in Mumbai.
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4. The petitioners assail 'eviction notices' as issued to them by the MCGM. The structures as occupied by the petitioners are obstructing the said vital and a substantially advanced public project, namely 'widening of the Mulund-Goregaon Link Road', which joins the far Eastern and the Western suburbs of Mumbai. Such a project has been completed to the extent of 70%. As the petitioners have opposed vacating of their structures, the project has come to a stand-still at the point where these structures are situated.
5. The impugned notice(s) dated 24 September 2021 issued by the MCGM to the petitioners, interalia, state that the petitioner's structures fall within the demarcated 'Road Line' (RL), fixed for the said public project; hence the petitioner's should vacate their respective structures, by accepting compensation as specified in the notices. The notices record that the petitioners were offered alternate rehabilitation premises, as the petitioners structures were found to be tolerable structures as per the Slum's policy of the State Government being in existence prior to 1 January 2000; however, as the petitioners refused to accept the same, a monetary compensation as set out in the notice was being offered to them. Notably, large number of persons similarly placed like the petitioners accepted alternate structures at bipin prithiani 7 901-wpl-23110.21 & ors.doc different places as offered/ provided to them by the MCGM. Illustratively, one of the notices as annexed to the lead petition, is extracted hereunder :-
" (Official Translation of a photocopy of a Letter, typewritten in Marathi) Exhibit E Brihanmumbai Municipal Corporation No. A. C. P. N./1394/A/A. E.(Zone) Date: 24/09/2021.
Office of the Assistant Commissioner, P/North, First floor, Liberty Garden, Malad West, Mumbai- 400064.
To, Smt. Nirmala Mohanlal Gada, M/s. National Plywood and Glass, Structure No.1, Goregaon Mulund Link Road, Malad (East), Mumbai-97.
Subject:- To carry out widening of Goregaon Mulund Link Road from Oberoi Mall, Western Express Highway to Film City Gate, Goregaon on Goregaon Mulund Link Road and to carry out construction thereof.
Reference:- 1. A. C. P. N./S. R./694/Zone dated 6/4/2016.
2. A. C./Market/31724/A. E. M. dated 6/2/2019.
3. A. C. P. N./722/A/A. E.(Zone) dated 22/7/2021.
4. M. G. C./F/1654 dated 4/3/2020.
As mentioned hereinabove, the Municipal Corporation has undertaken the ambitious project viz. widening of Goregaon Mulund Link Road and the work of rehabilitation of hut holders affected due to road widening on General Arunkumar Vaidya Marg of the width of 45.70 mtrs. and Film City Road, located within the purview of P. North Ward office, under the said project, is being carried out by this office. The Annexure II of the hut holders affected due to the widening of both the said roads has already been sanctioned, and vide No. A. C./W. S./1913/W. dated 14/8/2017 and A. C./W. S./2796/W. Dated 28/3/2018, approval has been granted for rehabilitating the eligible hut holders. As per the proofs submitted by you, it is established that your fully affected non-residential hut/tenement (area 45.05 sq. mtrs.) is prior to the date 1/1/2000 and therefore, as per final and approved Annexure II, the same has been declared as eligible for rehabilitation. bipin prithiani 8 901-wpl-23110.21 & ors.doc The List of non-residential tenements available with the Municipal Corporation for rehabilitation of eligible non-residential hut holders was informed to you for your rehabilitation, and by letter referred to Sr. No. 3, the same was communicated to you for your consent. However, consent for accepting available non-residential tenement was not received from you. Therefore, for want of rehabilitation, the work of road widening and reconstruction of the road at the said place cannot be carried out.
As you have not given your consent for rehabilitation in the non-residential tenements available with the Municipal Corporation, by making available the option of rehabilitation through monetary consideration as per the prevailing policy of the Municipal Corporation under Sr. No. 3, the permission of the Commissioner to make your rehabilitation by giving monetary consideration has been received by Letter referred to at Sr. No. 4.
As per the Circular bearing No. AC/Market/31724/AEM dtd. 06.02.2019, Rs. 38,92,102.50 only will be paid to you as monetary consideration in respect of the area of your premises by the Municipal Corporation. The said monetary consideration (without interest) will be paid to you after you vacate your existing tenement and hand over the same to the Municipal Corporation.
Therefore, you are instructed to demolish the non-residential structure which is in your possession and hand over the said place to the Municipal Corporation within the next 7 days, i.e. till the date 01.10.2021 and should make available the said place for reconstruction of the road. If you fail to demolish your non-residential structure on your own within the said period, action of eviction will be taken by this office without giving any further prior notice, and eviction expenses will be recovered from you, which may be noted.
(Signature Illegible)
Assistant Commissioner, P/North "
6. The petitioners are aggrieved by such notice(s) issued by the MCGM. The petitioners do not dispute that their structures fall within the 'Road Line' (RL). They do not dispute that the project being undertaken by the MCGM is an important public project. They also do not dispute that that they would eventually have to vacate their structures. Then what is their grievance? Their primary grievance is that the compensation being offered to them is not adequate; hence bipin prithiani 9 901-wpl-23110.21 & ors.doc they would not vacate their structures. The petitioners hence contend that acquiring their structures/land is without following the due process of law.
7. It is the case of the MCGM that the impugned notices are issued strictly as per the provisions of the MMC Act, more particularly, in the exercise of the powers of the MCGM to acquire premises for improvement of the public street as has conferred under Sections 297 and 298 read with Section 301 of the MMC Act. Section 297 provides for prescribing the regular line of a street. Section 298 provides for setting back buildings to the regular line of the street, and Section 301 pertains to compensation to be paid in cases which would fall under Sections 297, 298, 299 and 301 of the MMC Act, which reads thus :
"297. Prescribing the regular line of a street. (1) The Commissioner may :-
(a) prescribe a line on each side of any public street Provided that in the case of any public street in the suburbs the regular line of a public street operative under any law in force in any part of the suburbs on the day immediately preceding the date of coming into force of the Bombay Municipal (Extension of Limits) Act, 1950, [land in the case of any public street in the extended suburbs the regular line of a public street operative under any law in force in any part of the extended suburbs on the day immediately preceding the date of the coming into force of the Bombay Municipal [Further Extension of Limits and Schedule BBA (Amendment)] Act, 1956] shall be deemed to be a line prescribed by the Commissioner under this clause.]
(b) from time to time, but subject in each case to his receiving the authority of the corporation in that behalf, prescribe a fresh line in substitution for any line so prescribed or for any part thereof provided that such authority shall not be accorded-
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(i) unless, at least one month before the meeting of the corporation at which the matter is decided public notice of the proposal has been given by the Commissioner by advertisement in local newspapers as well as in the [Official Gazette], and special notice thereof, signed by the Commissioner, has also been put up in the street or part of the street for which such fresh line is proposed to be prescribed, and
(ii) until the corporation have considered all objections to the said proposal made in writing and delivered at the office of the municipal secretary not less than three clear days before the day of such meeting.
(2) The line for the time being prescribed, shall be called "the regular line of the street".
(3) No person shall construct any portion of any building within the regular line of the street except with the written permission of the Commissioner, who shall, in every case in which he gives such permission, at the same time report his reasons in writing to the [Standing Committee].
298. Setting back buildings to regular line of the street (1) If any part of a building abutting on a public street is within the regular line of such street, the Commissioner may, whenever it is proposed -
(a) to rebuild such building or to take down such building to an extent exceeding one-half thereof above the ground level, such half to be measured in cubic feet; or
(b) to remove, re-construct or make any addition to any portion of such building, which is within the regular line of the street, in any order which he issues, under section 345 or 346, concerning the rebuilding, alteration or repair of such building require such building to be set back to the regular line of the street. (2) When any building, or any part thereof within the regular line of a public street, falls down, or is burnt down, or is taken down whether under the provisions of section 351 or 354 or otherwise, the Commissioner may at once take possession on behalf of the corporation of the portion of land within the regular line of the street therefor occupied by the said building, and, if necessary, clear the same.
(3) Land acquired under this section shall thence forward be deemed a part of the public street and shall vest, as such, in the corporation.
299. Acquisition of open land or of land occupied by platforms, etc, within the regular line of a street bipin prithiani 11 901-wpl-23110.21 & ors.doc (1) If any land not vesting in the corporation, whether open or enclosed, lies within the regular line of a public street, and is not occupied by a building, or if a platform, verandah, step or some other structure external to a building abutting on a public street, or a portion of a platform, verandah, step or other such structure, is within the regular line of such street, the Commissioner may, after giving to the owner of the land or building not less than seven clear days written notice of his intention so to do, take possession on behalf of the corporation of the said land with its enclosing wall, hedge or fence, if any, or of the said platform, verandah, step or other such structure as aforesaid, or of the portion of the said platform, verandah, step or other such structure aforesaid which is within the regular line of the street, and, if necessary, clear the same and the land so acquired shall thence forward be deemed a part of the public street.
(2) Provided that, when the land or building is vested in 1[the 2 [Government] possession shall not be taken as aforesaid without the previous sanction of the Government concerned and, when the land or building is vested] in any corporation constituted by Royal Charter or by an Act of Parliament, 3[of the united Kingdom] or 4[by an Indian Law,] possession shall not be taken as aforesaid without the previous sanction of 5[the 6[State] Government].
301. 7[(1) Compensation shall be paid by the Commissioner to the owner of any building or land acquired for a public street under section 298 or 299, for any loss which such owner may sustain in consequence of his building or land being so, acquired and for any expense incurred by such owner in consequence of the order made by the Commissioner under either of the said sections; provided that any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation.] (2) If, in consequence of any order to set forward a building made by the Commissioner under the last preceding section, the owner of such building sustains any loss or damage, compensation shall be paid to him by the Commissioner for such loss or damage. (3) If the additional land which will be included in the premises of any person required or permitted under the last preceding section to set forward a building belongs to the Corporation, the order or permission of the Commissioner to set forward the building shall be a sufficient conveyance to the said owner of the said land; and the 1[price to be paid to the corporation by the said owner for such additional land and the other] terms and conditions of the conveyance shall be set forth in the said order or permission. bipin prithiani 12 901-wpl-23110.21 & ors.doc (4) If when the Commissioner requires a building to be set forward, the owner of the building is dissatisfied with [the price fixed to be paid to the corporation or any of the other] terms and conditions of the conveyance, the Commissioner shall, upon the application of the said owner at any time within fifteen days after the said terms and conditions are communicated to him, refer the case for the determination of the Chief Judge of the Small Cause Court, whose decision thereupon shall be conclusive."
(emphasis supplied)
8. The petitioners have contended that the MCGM is not correct in applying the provisions of Sections 297 to 301 of the MMC Act in its offering the quantum of compensation. According to the petitioners, the MCGM need to apply the provisions of Section 91 of the MMC Act to acquire their structures in respect of land in cases wherein the respective petitioners claim to be the land owners. Section 91 provides the procedure when immovable property cannot be acquired by agreement. The petitioners contend that on application of Section 91 also, the provisions of Section 296 become applicable. Section 91 and 296 of the MMC are required to be noted, which read thus :-
"Section 91. Procedure when immovable property cannot be acquired by agreement (1) Whenever the Commissioner is unable to acquire any immovable property under the last preceding section by agreement [the [State] Government] may, in their discretion, upon the application of the Commissioner, made with the approval of [the Improvements Committee] [and subject to the other provisions of this Act] order proceedings to be taken for acquiring the same on behalf of the corporation, as if such property were a land needed for a public purpose within the meaning of the Land Acquisition Act, 1870.
(2) The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall, subject to all bipin prithiani 13 901-wpl-23110.21 & ors.doc other provisions of this Act, be forthwith paid by the Commissioner and thereupon the said property shall vest in the corporation.
Section 296 : Power to acquire premises for improvement of public street:
(1) The Commissioner may, subject to the provisions of section 90, 91 and 92--
(a) acquire any land required for the purpose of opening, widening, extending or otherwise improving any public street or of making any new public street, and the buildings, if any standing upon such land;
(b) acquire in addition to the said land and the buildings, if any, standing, thereupon, all such land with the buildings, if any, standing thereupon, as it shall seem expedient for the corporation to acquire outside of the regular line, or of the intended regular line, of such street;
(c) lease, sell or otherwise dispose of any land or building purchased under clause (b).
(2) Any conveyance of land or of a building under clause (c) may comprise such conditions as the Commissioner thinks fit, as to the removal of the existing building, the description of new building to be erected, the period within which such new building shall be completed and other such matters."
(emphasis supplied)
9. In short, the case of the petitioners is that by virtue of the provisions of Sections 91 read with Section 296 of the MMC Act, the petitioners would be entitled to compensation as per the provisions of "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013", and not, as to what is being offered by the MCGM applying the provisions of Section 298 read with Section 301 of the MMC Act. To decide such issues, necessarily the factual backdrop would be required to be examined after affidavits are filed in individual petitions, as in some of the bipin prithiani 14 901-wpl-23110.21 & ors.doc petitions, the petitioners are occupants of the structures, and there is a dispute on ownership of the land. Thus, an issue on the nature of rights on the land and the structure would be involved in the adjudication of the petitioners' contentions. Also, there is another issue as there is a notification dated 28 October 1991, issued by the State Government declaring the land a 'slum'. Applying such notification, the MCGM has asserted that the structures of some of the petitioners as protected structures, and accordingly, an offer is being made to the petitioners of rehabilitation by providing alternate premises being made by the MCGM, which the petitioners have refused to accept as noted above.
10. These are issues we would be required to examine at a later stage, as today, at the pre-admission stage of these petitions, we are concerned with the prayer of the petitioners for interim reliefs. The prayers as made by the petitioners are required to be noted. We extract the prayers as made in the lead matter (Writ Petition (L) No. 23110 of 2021), which read thus:
"11.1. That this Hon'ble Court be pleased to allow this Writ Petition. 11.2. That this Hon'ble Court be pleased to pass an order in the nature of Writ of Mandamus or any other order or Writ in the nature of Mandamus thereby, directing the Respondent no.2, to cancel and bipin prithiani 15 901-wpl-23110.21 & ors.doc set aside the impugned notice dated 24 th September, 2021 bearing reference no: 1395 as the same has been issued without following the due process of law.
11.3. That this Hon'ble Court be pleased to pass an order in the nature of Writ of Mandamus or any other order or Writ in the nature of Mandamus thereby, directing the Respondents to follow the due process of law to acquire the said property, being Shop no.07, bearing survey no: 267, Hissa no: I(Part) C.T.S. no: 610A/1 A/1/1 (Part), known as M/s. Neeta Shoes, P/North Ward, Opp. Gokuldham Police Chowki, Gen A.K. Vaidya Marg (Goregaon-E), Mulund Link Road/Film city road, Malad (East), Mumbai-400 097, admeasuring 47.40 sq.mts. (said property).
11.4. That this Hon'ble Court be pleased to pass an order in the nature of Writ of Mandamus or any other order or Writ in the nature of Mandamus thereby, directing the Respondents to acquire the said property being Shop no.F-07, bearing survey no: 267, Hissa no:1 (Part) C.T.S. no: 610A/1A/1/1(Part), known as M/s. Bombay Shoes, P/North Ward, Opp. Gokuldham Police Chowki, Gen A.K. Vaidya Marg (Goregaon-E), Mulund Link Road/Film city road, Malad (East), Mumbai-400 097, admeasuring 47.40 sq.mts. (said property) under the provisions of Right to Fair Compensation and Transparency in Land Acquisition and Resettlement Act 2013. 11.5. That pending final hearing and disposal of this Writ Petition, this Hon'ble Court be pleased to stay the impugned notice dated 24 th September, 2021 bearing reference no: 1393, thereby, maintaining status quo with respect to the said property;
11.6. That without prejudice to the above and in addition to the same, this Hon'ble Court be pleased to direct the Respondents to grant the Petitioner an opportunity to submit his claim before the Respondent nos. 2 and 3 with respect to the said property being Shop no.F-07, bearing survey no: 267, Hissa no: I(Part) C.T.S. no:
610A/IA/1/1 (Part), known as M/s. Bombay Shoes, P/North Ward, Opp. Gokuldham Police Chowki, Gen A.K. Vaidya Marg (Goregaon- E), Mulund Link Road/Film city road, Malad (East), Mumbai-400 097, admeasuring 47.40 sq.mts. (said property) and in course of the same, stay the impugned notice dated 24th September, 2021.
11.7 Interim and Ad-interim prayers with respect to the prayer clauses 11.1 to 11.6.
11.8 AND FOR ANY SUCH ACT OF KINDNESS PETITIONER SHALL FOREVER PRAY."
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11. At the outset, a request is made by Mr. Sen, learned senior counsel for the petitioners who has made the lead arguments, on behalf of the petitioners whom he represents, that the petitions be taken up for final hearing at the admission stage. Having examined the issues and considering the complexion of the disputes, we are unable to accept such a request as made by Mr. Sen. We are not inclined to give any out-of-turn priority to these matters, leaving aside more important and serious matters, which are pending admission as also final hearing. Also, considering the large number of matters pending admission as also final hearing, both on the original side and the appellate side as assigned to this Bench, we do not find these are cases which ought to be given such priority.
12. We have accordingly heard the learned counsel for the parties on interim reliefs. The issue, as noted above is on the entitlement of the petitioners in regard to the nature of the compensation which would be required to be paid by the MCGM.
13. Having noted the relevant provisions and, more particularly the sub-section (4) of Section 301 of the MMC Act, we are of the prima facie opinion that the petitioners have a remedy to invoke such bipin prithiani 17 901-wpl-23110.21 & ors.doc provision if they are dissatisfied with the amount of compensation as offered to them by the MCGM. Sub-section (4) of Section 301 provides for a remedy that the petitioners could approach the Commissioner of the MCGM by an application at any time within fifteen days after the said terms and conditions of compensation were communicated to them, who shall refer the case for the determination of the Chief Judge of the Small Causes Court, whose decision thereupon shall be conclusive. The petitioners, however, have approached this Court by the present proceedings. We don't see how the petitioners were precluded from raising such issues as raised in the present petition in any proceedings they could have initiated under sub-section (4) of Section 301 of the MMC Act.
14. Be that as it may, the acquisition of any land/property for any public purpose and the compensation to be paid in such an acquisition is governed by the substantive provisions of law. It is well settled that the provisions governing the land acquisition are a Code by itself. It is also well settled that the Courts would ordinarily be loath to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India to interfere in the land acquisition proceedings. The petitioners, however, are extraordinarily assertive that the issues as raised by them bipin prithiani 18 901-wpl-23110.21 & ors.doc be decided, even if it may amount to giving a go-bye to the remedy which was available to those affected to approach appropriate Courts, in the event, compensation, as offered, is not adequate.
15. In the above circumstances, as noted by us above, the Court would be required to deal with issues as may arise in each of the cases, depending on the pleadings as may be placed on record. Such issues can be examined only at the final hearing of these petitions. We accordingly issue a 'Rule' on these petitions.
16. Insofar as the prayer of the petitioners for interim reliefs is concerned, it appears from the record that so far, this Court has not passed any substantive reasoned ad-interim order, suffice it to observe that a co-ordinate Bench of this Court [Coram: A. A. Sayed (as His Lordship then was) & S. G. Dige, JJ.] recorded a statement as made on behalf of the MCGM in its order dated 29 October 2021. This position has continued to operate till date. It would be appropriate to extract the said order dated 29 October 2021, which reads thus:-
" We record the assurance of the learned Senior Counsel for the Respondent-Corporation, on instructions from Shri. Sudhir More, Asst. Engineer (Maintenance) P-North Ward, that until the next date no steps shall be taken to demolish the structures of the Petitioners.
2. List the Petition on 17 November 2021, high on board."
bipin prithiani 19 901-wpl-23110.21 & ors.doc
17. On behalf of the petitioner, it is contended that it is necessary that the petitioners are granted interim reliefs on the issues as urged by the petitioners, as extensively noted by us above. It is their submission that a serious prejudice would be caused to the petitioners if the petitioners are required to surrender their premises which are shops, and only after the issue of petitioners entitlement to compensation is decided the petitioners can vacate their respective premises/tenements. It is their submission that a prima facie case has been made out by them for the grant of interim relief, as also the balance of convenience is with the petitioners.
18. On the other hand Mr. Walawalkar, learned senior counsel for the respondent-MCGM, on instructions, submits that the Corporation needs to be relieved of such statement as recorded by this Court in the order dated 29 October 2021. He submits the statement that it can no more be continued as the same is seriously affecting the public project, of which about 70% of the work has been completed. He submits that the project stands halted at the road line where the structures of the petitioners are situated. It is his submission that in the present facts, the petitioners have miserably failed to make out any prima facie case for any stay on the proposed action being taken by the MCGM for bipin prithiani 20 901-wpl-23110.21 & ors.doc widening of the road and acquiring the structures in the road line. It is the submission that a large number of structures in the adjoining plots have already been removed, and such persons who were occupying these structures upon their becoming eligible under the policy of the State Government have already been rehabilitated and/or were paid compensation. It is submitted that the petitioners cannot have a quid pro quo that they would not vacate the premises till their entitlement is adjudicated by this Court.
19. Mr. Walawalkar has also drawn the Court's attention to the notification issued by the State Government dated 28 October 1991 whereby CTS No. 610 (part), being area 13928 sq. meters, has been notified as a slum. There appears to be a dispute as to whether the structures held by the petitioners are part of the notified slum area. Mr. Sen has submitted that they are outside the slum area, and insofar as his clients' are concerned, they are the owners of the said land. On a query being made to Mr. Sen as to whether the "official records/City Survey Records" incorporate the petitioners as owners, he states that they are not shown to be owners in the city survey records. Mr. Walawalkar has stated that the owner of the land, as shown in the official records, is one "Wadia Trust", which was the owner of large bipin prithiani 21 901-wpl-23110.21 & ors.doc tracks of land where the structures are situated. This would raise serious issues in regard to the entitlement of the petitioners to receive any compensation under the provisions of the MMC Act as asserted by them under Section 91 read with Section 296 as noted by us above, and it would be a question of fact to be considered depending upon the documents of title that petitioners possess. This for the reason that the petitioners would be required to establish that they are not persons who have either encroached on land belonging to the Wadia Trust or they have not purchased only the structures from encroachers on Wadia's land. In other words, they would be required to establish that they are the owners of the land and structures in appropriate proceedings for determination of the compensation.
20. Mr. Walawalkar submits that it is in these circumstances the impugned notices issued to the petitioners have referred to the slum policy of the State Government for rehabilitation of the slum dwellers in respect of those whose structures which were in existence prior to 1 January 2000 and accordingly the MCGM had offered alternative premises to the petitioners, and the same having being refused by the petitioners, the MCGM by the impugned notices has offered monetary compensation to the petitioners.
bipin prithiani 22 901-wpl-23110.21 & ors.doc
21. It also appears that there is an interse dispute between the petitioners in Writ Petition (L) No. 23497 of 1981, who claim to be the owners of the land on which the structures of Mr. Sen's client are situated. Such is the complexion of the proceeding before us.
22. It is thus not in dispute that the structures of the petitioners are affected by the road line as prescribed by the MCGM for widening the Goregaon-Mulund Link Road, being an infrastructure project. Thus, in our opinion, in these facts and circumstances, certainly the settled position in law, in regard to the parameters this Court would bear in mind in considering the interim reliefs have an adverse bearing on the larger public interest would become applicable, as the private interest needs to yield and/or make way for the larger public interest. In the context of such legal position, Mr. Walawalkar has placed reliance on the decision of the Supreme Court in the case of Ramniklal N. Bhutta and Another v/s. State of Maharashtra & Ors., (1997) 1 SCC 134, which also was a case concerning acquisition of land. The Court was considering an issue as to whether it was appropriate for the High Court, in its discretionary jurisdiction under Article 226 of the Constitution of India, to overlook public interest over private interest while exercising powers under Article 226 of the Constitution of India. bipin prithiani 23 901-wpl-23110.21 & ors.doc The following observations of the Supreme Court are clearly applicable to the facts of the present case:-
"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as "Asian tigers", e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 -- indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
(emphasis supplied) bipin prithiani 24 901-wpl-23110.21 & ors.doc
23. In another decision of the Supreme Court of a recent origin in N. G. Projects Limited v/s. Vinod Kumar Jain & Ors., (2022) 6 SCC 127, the Supreme Court reiterating the above principles observed that construction of a road is an infrastructure project and keeping the view the intent of the legislature, as brought about by making amendment to the Specific Reliefs Act, 1963 by Act 18 of 2018 by inserting Section 41(ha) providing that an injunction cannot be granted if the injunction would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project. It was held that such provision should be kept in view even by the writ Court while exercising jurisdiction under Article 226 of the Constitution. The reliance as placed by Mr. Walawalkar, on such decision is well founded. Certainly, the nature of the interim reliefs against eviction being prayed by the petitioners is nothing short of a stay of the implementation of the public project to such an extent.
24. This apart, it appears from the prayers as made in the petition that the petitioners were quite aware as to where they stand. When bipin prithiani 25 901-wpl-23110.21 & ors.doc espousing the jurisdiction of this Court under Article 226 of the Constitution of India, consciously, a prayer has been made in paragraph 11.6 of the petition when the petitioners have prayed for an opportunity to be given to them to make claim in respect of their structures, however, subject to a condition of a stay to the impugned notice dated 24 September 2021. Considering such prayer as made by the petitioners, we are certainly of the opinion that nothing prohibits the petitioners from submitting their respective claims if they genuinely intend to make such claims. In such event, it would always be open to the MCGM to consider such claims of the petitioners as may be permissible in law and respond to the petitioners. However, the petitioners making such claim cannot be conditional to the public project being halted, as prayed for in paragraph 11.6 of the petition.
25. We, accordingly, observe that it would be open to the petitioners to submit their respective claims to the MCGM if they so desire and which can be considered by the MCGM in accordance with law. This shall, however, be without prejudice to the rights and contentions of the parties, not only in the present petition but also in regard to any other appropriate remedies petitioners may have under the law in assailing the acquisition proceedings. bipin prithiani 26 901-wpl-23110.21 & ors.doc
26. This apart in so far as the petitioners prayers for interim reliefs are concerned, considering the facts and circumstances of the case, as noted by us in some detail, we are clearly of the opinion that the petitioners have failed to make out a prima facie case for grant of any interim relief to the effect that they be permitted to continue to occupy their structures and to that extent stall the public project being completed at the cost of public exchequer. In our opinion, the petitioners have been the undue beneficiaries of the statement and/or the fair stand as taken on behalf of the MCGM on 29 October 2021, which was admittedly only up to the adjourned date of hearing, i.e. up to 17 November 2021, however, the same came to be continued and had remained in operation. Mr. Walawalkar has submitted that this was causing serious prejudice to the MCGM in delaying the completion of the public project of an important arterial road in Mumbai.
27. As a result of the aforesaid discussion, in all the petitions, we reject the prayers made by the petitioners for interim relief. Consequently, the statement as made on behalf of the MCGM as recorded in the order dated 29 October 2021 passed by a coordinate bipin prithiani 27 901-wpl-23110.21 & ors.doc Bench of this Court shall forthwith stand withdrawn.
28. At this stage, Mr. Sen, learned counsel for the petitioners, states that the MCGM be directed not to take coercive steps for demolition of the structures for some time. Although granting any such protection shall be against the tenets of law as held by the Supreme Court in the decisions as noted above and prejudicial to the public interest, however, as the petitioners intend to assail this order before the Supreme Court, we direct the MCGM not to take any coercive action against the structures of the petitioners for a period of 15 days from the date a copy of this order is available on the website of the High Court.
[R. N. LADDHA, J.] [G. S. KULKARNI, J.]
Digitally signed by BIPIN
BIPIN DHARMENDER
DHARMENDER PRITHIANI
Date: 2023.03.14
PRITHIANI 19:38:16 +0530