Bombay High Court
Nenshi Monji And 3 Others vs The State Of Maharashtra And 4 Others on 16 January, 2015
Author: B.P. Colabawalla
Bench: Mohit S. Shah, B.P.Colabawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1489 OF 2008
Nenshi Monji (Bombay), a Family Trust
and Others. : Petitioners
V/s.
The State of Maharashtra and Others. : Respondents
WITH
CONTEMPT PETITION NO.14 OF 2012
In
WRIT PETITION NO.1489 OF 2008
Nenshi Monji (Bombay), a Family Trust
and others : Petitioners
V/s.
The State of Maharashtra and Others : Respondents
...
Dr.Virendra Tulzapurkar, Sr.Advocate i/by M/s.Madekar & Co. for
petitioners.
Mr.E.P.Bharucha, Senior Advocate, with Ms.Geeta Shastri, Addl.
Govt. Pleader for respondent nos.1 to 4.
Mr.A.V.Anturkar, Senior Advocate, with Mr.A.P.Jadhav for
respondent nos.5.
Mr.G.D.Uttangale with Mr.B.V.Phadnis for respondent no.6.
Mr.Girish Godbole i/b. Mr.Akshay P. Jadhav for respondent no.7.
...
CORAM : MOHIT S. SHAH, C.J. &
B.P.COLABAWALLA, J.
Date of Reserving ): 27.11.2014.
the Judgment. )
Date of Pronouncing): 16.01.2015.
the Judgment. )
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CAV JUDGMENT (Per Chief Justice)
This writ petition under Article 226 of the Constitution challenges the acquisition of petitioners' lands under final Notification dated 22 December 2005 issued by the State Government under section 14 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 ("the Slum Act" or "the Act'). The petition further challenges the award dated 19 May 2006 passed by the Deputy Collector (Encroachment Removal) (Deputy Collector) under Section 17 of the Act.
2. Initially the petitioners had also challenged the constitutional validity of the provisions of sections 14 and 17 of the Act. The present petition along with a group of other petitions were heard on the limited question of constitutional validity of the aforesaid provisions and by judgment dated 10 May 2013, a Division Bench of this Court, to which one of us (Chief Justice) was a party, upheld the constitutional validity of sections 14 and 17 of the Act. The operative order in the judgment in the group of petitions including present writ petition reads as under :
ORDER "(A) The challenge to the constitutional validity of Sections 14 and 17 of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971 (the Slum Act) is rejected. We hold that the provisions of Sections 14 and 17 of the said Act are intra vires the provisions of the Constitution of India.::: Downloaded on - 16/01/2015 23:46:38 :::
krs 3 WP1489.2008-9.1.2015.doc (B) It is declared that before and after the amendment of Section 14(1) of the Slum Act by Maharashtra Act No.11 of 2012, the State Government or the Competent Authority is empowered to acquire the land within a slum area and also the lands adjoining or surrounded by a slum area.
(C) The petitioners/land owners/aggrieved persons will be at liberty to file appeals under section 17(6) of the Slum Act against the amounts determined by the Competent Authority under Section 17(5) thereof, within 30 days from the date of this judgment. If such appeals are filed within 30 days from today, the appeals shall be treated as filed within a period of limitation;
(D) The appeals shall be heard and decided on merits and in pending appeals also, the parties will be at liberty to file additional pleadings and/or documents in support of their case for higher compensation. The Appellate Authority shall redetermine the compensation in accordance with law after giving full opportunities to the parties."
Thereafter, the writ petitions have been placed for final hearing.
3. The present petition has been filed by a family trust (petitioner no.1) and petitioner nos.2 to 4 claim to be trustees of the said family trust. The facts leading to filing of this petition, briefly stated, are as under:
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(a) The lands acquired are the following two parcels of
land in Parel Sewree Division in Mumbai:
Sr.No. P a r t i c u l a r s Area(rounded off)
(i) City Survey no.184 admeasuring 6,440 sq. mtrs.
6,439.29 sq. mtrs.
(ii) Adjoining City Survey no.2/184 2,700 sq. mtrs.
admeasuring 2,697.50 sq. mtrs.
_______________________________ ________________ Total (rounded off) 9,140 sq. mtrs.
=========
(b) By show cause notice dated 12 August 1977, the Deputy Collector called upon the petitioners to show cause why the subject property at item no.(i) should not be declared as a slum. By Notification dated 31 August 1977, the said land was declared as a slum under section 4(1) of the Act. By letter dated 20 January 1989, Jijau Prerna Co-operative Housing Society Limited (proposed) - respondent no.5 herein, informed the petitioners about the Surveyor's report dated 18 January 1989.
Thereafter by show cause notice dated 26 May 1994 issued by the Deputy Collector, the petitioners were called upon to show cause why land at item no.(ii) should not be declared as a slum. The said land was also thereafter declared as a slum by Notification dated 22 June 1994. There is no challenge to the aforesaid Notifications dated 31 August 1977 and 22 June 1994 in respect of the lands in question, declaring them as slums under section 4(1) of the Act.
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(c) Thereafter, respondent no.5 (proposed co-operative
housing society of slum dwellers on the above lands) made an application dated 6 April 2004 to the Additional Collector (Encroachment Removal), Mumbai City (respondent no.3) ("the Additional Collector") requesting him to acquire the land in question for redevelopment, which would include constructing rehabilitation units for the slum dwellers and for providing other amenities for which the lands were reserved or partly reserved. The Additional Collector forwarded the application of respondent no.5 society to the Deputy Collector calling for a detailed report with recommendations. After receiving the report of the City Survey Office, the Deputy Collector addressed a letter dated 4 December 2004 to the Additional Collector giving his no objection for acquisition of the lands in question.
(d) Thereafter by show cause notice dated 21 December 2004 issued under section 14(1) of the Act, the Additional Collector called upon the petitioners to show cause why lands in question should not be acquired to enable the competent authority to execute the work of improvement in relation to the slum area already declared or the building in such area or to redevelop clearance area. It appears from the affidavit filed on behalf of Government authorities that the said show cause notice dated 21 December 2004 was also pasted at the site in presence of panchas on 22 December 2004. As far as personal service on petitioner no.1 ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 6 WP1489.2008-9.1.2015.doc family trust and petitioner nos.2 to 4 trustees thereof are concerned, the envelope containing the show cause notice was returned back on 29 December 2004 by the postal authorities with remark "intimation pasted". On 12 January 2005, the Additional Collector submitted a report to the State Government requesting for further actions. On 29 January 2005, the State Government called upon the Additional Collector to resubmit the proposal to acquire the lands in question. By letter dated 1 March 2005, the Additional Collector resubmitted the proposal to the State Government. Since there was no response to the show cause notice, the show cause notice was also published in two daily newspapers in Marathi and English language respectively on 10 February 2005. No response was submitted by the petitioners to the said show cause notice published in the newspapers.
Ultimately, by Notification dated 22 December 2005, the State Government in the Housing Department acquired the lands in question under section 14 of the Act.
(e) By notice dated 26 February 2006 issued by the Deputy Collector, the petitioners were called upon to remain present for the hearing to determine the compensation for the lands acquired under Notification dated 22 December 2005. In the service report dated 24 February 2006 of the Surveyor, it was stated that notice under section 17 for determining the compensation was refused. Ultimately, by award dated 19 May 2006, the Deputy Collector awarded compensation of Rs.34,992/- to the petitioners. Then ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 7 WP1489.2008-9.1.2015.doc after giving notice dated 3 October 2006, the Additional Collector took possession of the lands in question in the presence of panchas on 1 March 2007.
(f) The petitioners, claiming to be a family trust and three trustees, have filed the present petition for challenging the above Notification dated 22 December 2005 under section 14 and award dated 19 May 2006 under section 17 of the Slum Act.
4. Before proceeding to enumerate the rival submissions, it is necessary to note that the present petition with various prayers, including challenge to the vires of sections 14 and 17 of Slum Act was filed on 27 May 2008 and when the petition came up for hearing on 30 July 2008, another Division Bench of this Court passed the following order :
" The Court is informed by the learned counsel appearing for the parties that the provisions of Sections 14 and 17 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 are under challenge in various petitions and those petitions have been admitted. In this view of the matter, Rule. To be heard along with Writ Petition No.91 of 2002 and other such cognate matters.
2. The parties to the petition to maintain status-quo during the pendency of this petition."::: Downloaded on - 16/01/2015 23:46:38 :::
krs 8 WP1489.2008-9.1.2015.doc When the above order was passed, the respondents were the State Government, the Deputy Collector, Additional Collector, Secretary to the Government in Housing Department and respondent no.5 proposed co-operative housing society of slum dwellers. It was subsequently in November 2012 that the petitioners obtained leave of this Court to add Slum Rehabilitation Authority as respondent no.6, developer as respondent no.7, Collector-Mumbai City as respondent no.8 and Superintendent, Mumbai City Survey and Land Records Office as respondent no.9.
5. Contending that the respondents including the newly added respondents by issuing Letter of Intent dated 23 September 2010 of Slum Rehabilitation Authority to the developer and by effecting mutation entry in the revenue records in the name of State Government after acquisition was over, had willfully disobeyed the above interim order dated 30 July 2008 of this Court, the petitioners have filed Contempt Petition No.14 of 2012.
6. Dr.Tulzapurkar, learned Senior Advocate appearing on behalf of petitioners, has submitted that the respondents must purge themselves of the contempt of this Court first and thereafter only the defence of the respondents in the writ petition be taken into consideration.
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7. Learned counsel for the respondents have made the following submissions:
(i) The respondents had not committed any disobedience of the order dated 30 July 2008 which merely required the parties to the petition to maintain status quo. Slum Rehabilitation Authority which issued the Letter of Intent dated 23 September 2010 as well as the developer were not parties to the writ petition when this Court passed the order dated 30 July 2008 directing the parties to the petition to maintain status quo. It is further submitted that as regards the mutation entry recording the name of the Government in the revenue records, the final acquisition notification had been issued as far back as on 22 December 2005 and immediately the lands had vested in the State Government.
The Superintendent of Land Records(respondent no.9) had already passed order dated 16 July 2008 for effecting necessary mutation entries in the land records and only a ministerial/clerical act of making actual entry nos.535 and 536 showing the Governor of Maharashtra as the person in bona fide ownership of the lands in question in the land records, was done on 12 August 2008. Apart from stating the above facts in his affidavit dated 25 November 2014, the Superintendent of Land Records, Mumbai City (respondent no.9) has also stated that neither the office of the Collector (respondent no.8) nor his office was served with the status quo order dated 30 July 2014, and that they were joined as party-respondents only as per order dated 23 August 2008.
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(ii) The order dated 30 July 2008 was an ad-interim order. Slum Rehabilitation Authority (`SRA') and the developer have filed affidavits not only on merits but also requesting the Court to vacate the status quo order.
(iii) Without prejudice to the above contentions, it is submitted that the status quo order did not prevent the parties to the petition from either issuing Letter of Intent which is only a paper document or effecting a mutation entry in the land records, which is also a paper entry made for the fiscal purposes for collection of land revenue. It is submitted that status quo order was intended to mean that the parties should not transfer title to or possession of the lands in question in favour of any third party.
The symbolic possession of the lands in question was already taken over by the Deputy Collector as far back as on 1 March 2007 after making a panchanama. Hence, there was no disobedience, much less willful disobedience, of the order dated 30 July 2008 of this Court. The Letter of Intent was issued on 23 September 2010 in order to enable the developer and the proposed housing society to undertake the preliminary exercise of preparing statements of eligible and ineligible slum dwellers, as the eligibility at the relevant time was required to be determined with effect from 1 January 1995.
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(iv) Without prejudice to the above submissions, the learned counsel for the Respondents also relied upon the decision of the Supreme Court in Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd.1 in support of the contention that the transfer of the suit property pendente lite at the time of the ad- interim injunction is not void ab initio and that the purchaser of such property took a bargain subject to the rights of the seller in the pending suit. A transfer pendente lite at the time of an ad-
interim injunction is not illegal ipso jure but remains subservient to the pending litigation (paragraphs 49 and 53 of the judgment).
(v) Even in the case where the Supreme Court has taken the view that respondents should purge the contempt first before they should be heard on merits, such a practice will not apply where the alleged contemnor is praying to vacate the ad- interim/interim order passed against him.
8. We have considered the rival submissions.
In Extrusion Processesses Private Ltd. v. Goregaon Electrical Industries Private Ltd.2, the Supreme Court has quoted with approval the following principle enunciated in Halsbury's Laws of England (3rd edn.), Vol. 8, paragraph 73:
1 (2013) 5 SCC 397 2 AIR 1965 SC 453 ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 12 WP1489.2008-9.1.2015.doc "73. Position of party in contempt. The general rule is that a party in contempt, that is a party against whom a writ of attachment has issued or an order for committal has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt, nor while he is in contempt can be heard to appeal from any order made in the cause; but this is subject to exceptions. Thus a party in contempt may apply to purge the contempt, he may appeal with a view to setting aside the order in which his contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him. Even the plaintiff in contempt has been allowed to prosecute his action, when the defendant had not applied to stay the proceedings.
Probably the true rule is that the party in contempt will not be heard only on those occasions when his contempt impedes the course of justice and there is no other effective way of enforcing his obedience."
(emphasis supplied) Thereafter, the Supreme Court laid down the following principles:
".................. two propositions appear very clear. In the first place, before the general rule is invoked it must be shown that the party is in contempt, that is to say the contempt must be an established or proved contempt or such as is very patent from the record, for in both the passages it has been stated that a party in contempt meaning a party against whom a writ of attachment has issued or an order for committal has been made, cannot be heard.
Secondly, even then it is not an absolute rule and there are several exceptions to it, as for instance when an order which placed a party in contempt is itself without jurisdiction or where a party in contempt may also be heard if his object is to get rid of the order or proceedings which placed him in ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 13 WP1489.2008-9.1.2015.doc contempt or where a party in contempt is merely trying to defend himself and not seeking to obtain any assistance or indulgence from the Court on his own."
(emphasis supplied)
9. Having heard learned counsel for the parties, we find considerable substance in the submissions made on behalf of the respondents i.e. the State Government authorities, SRA, the proposed co-operative housing society of slum dwellers and the developer that they had not disobeyed the order dated 30 July 2008 of this Court. That order required parties to the petition to maintain status quo. In fact, SRA and developer were not even parties to the petition either when the status quo order was passed or when the Letter of Intent was issued by SRA on 23 September 2010 in favour of the developer. As regards mutation entry in the revenue record, such an entry is required to be made for fiscal purposes i.e. for collection of land revenue and to ensure that on the basis of previous entries the petitioners did not transfer title to or possession of the lands in question in favour of any third party.
We, therefore, do not find any substance in the contempt petition and Contempt Petition No.14 of 2012 stands dismissed.
10. Now coming to merits of the writ petition, the gravamen of the challenge to the acquisition notification dated 22 December 2005 is as under:
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(a) That though the petitioners are owners of the lands in
question, the petitioners were not served with notices under section 14 of the Slum Act. The lands originally were purchased by Nenshi Monji in the year 1941 and thereafter under the Deed of Settlement dated 2 September 1950, Nenshi Monji settled the properties in favour of Nenshi Monji (Bombay) Family Trust (petitioner no.1 herein). When the show cause notice under section 14 was issued, Harshadrai Tanna and Narendra Devkaran Tanna were the trustees. However, the show cause notice under section 14 of the Slum Act was sought to be served upon Nenshi Monji who had already died. No notice was served either on petitioner no.1 trust or any of its Trustees. The impugned acquisition is, therefore, patently illegal, null and void.
(b) Even otherwise, the Notification under section 14 of the Act cannot be issued unless and until the notice under section 5 of the Slum Act is issued by the concerned authority and served upon the owner. In the facts of the present case, no such notice was issued and, therefore, also the impugned acquisition is illegal.
Sections 12(10) and 13 of the Slums Act confer right upon the owner of the land to re-develop the property first and only in case the owner refuses to re-develop the property, the State can compulsorily acquire the lands. Strong reliance is placed on the decision of a Division Bench of this Court (D.K.Deshmukh & ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 15 WP1489.2008-9.1.2015.doc N.D.Deshpande,JJ.) in Appeal no.324 of 2004 in Writ Petition no.608 of 2004 decided on 14 February 2011 (Maruti V. Mane & Anr. v. Smt.Ramkali Sitaram Kushawaha & Ors.).
11. Learned counsel for the State Government and learned counsel for the other respondents have vehemently opposed the petitions and made detailed submissions on the above issues. The learned counsel for the respondents also submitted that the Scheme of Slum Rehabilitation is clearly covered under the provisions of regulation 33(10) of the Development Control Regulations under the Maharashtra Regional and Town Planning Act, 1966 and placed heavy reliance on the decision of another Division Bench of this Court (H.L.Gokhale & A.S.Oka,JJ.) in the case of Om-Sai Darshan Cooperative Housing Society & anr. v.
State of Maharashtra & ors.3
12. As regards the allegation about the alleged violation of section 14 of the Act by not serving notice on the owner of the land, we find that the relevant facts are as under:
12.1 Nenshi Monji had purchased the lands in question in his own name in the year 1941 and his name alone had continued in the property card when the Additional Collector sent notice dated 22 December 2004 to Nenshi Monji. Section 36(1)(b) of the Slum Act provides the modes of service of notice. Section 36(1)(b) 3 2007 (1) Bom.C.R. 476 ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 16 WP1489.2008-9.1.2015.doc provides that every notice shall be served, if such person cannot be found, by affixing the notice on some conspicuous part of his last known place of abode or business, or by giving or tendering the notice to some adult member or adult servant of his family or by causing it to be affixed on some conspicuous part of the building or land to which it relates.
In the facts of this case, the respondents accordingly resorted to this mode of service and thereafter the notice was also published in two newspapers.
12.2 The show cause notice under section 14(1) of the Slum Act dated 21 December 2004 calling upon the owner to show cause why the lands in question should not be acquired to enable the competent authority to execute the work of improvement in relation to the slum area declared under sub-section (4) of the Slum Act or the building in such area or to redevelop the clearance area, was sent to Nenshi Monji. The envelope containing the show cause notice was returned back on 26 December 2004 by the postal authorities with a remark "intimation pasted". The notice was also pasted on site in the presence of panchas on 26 December 2004. The show cause notice was also published in two daily newspapers in Marathi and English language on 10 February 2005. However, no response was submitted by the land owner to the said show cause notice published in the newspapers also.
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12.3 Even thereafter, upon issuance of the impugned
Notification dated 22 December 2005 for acquisition of the lands in question, when the Deputy Collector sent notice dated 22 February 2006 under section 17 of the Slum Act calling upon the owner to remain present for hearing to determine the compensation, the notice was refused, as indicated in the service report dated 24 February 2006. After the award determining the compensation was passed on 19 May 2006, the Deputy Collector gave notice dated 23 October 2006 for taking over possession of the lands in question. This notice was also refused. The Additional Collector took over the possession in the presence of panchas on 1 March 2007.
12.4 The petitioners now contend that the property was held by petitioner no.1 trust known as Nenshi Monji (Bombay) Trust under the Deed of Settlement dated 2 September 1950, but no steps were taken by the trustees or the beneficiaries of the trust to record their names in the revenue records. It is contended by the petitioners that sons of Nenshi Monji Tanna: Harshadrai Nenshi Tanna and Devkaran Nenshi Tanna were the trustees at the relevant time. At present, the grandsons of Nenshi Tanna:
Narendra Devkaran Tanna (petitioner no.2), Dilip Harshadrai Tanna (petitioner no.3), and Shashi Ramniklal Tanna (petitioner no.4) are trustees of the family trust. It is thus clear that when the notices were sought to be served on Nenshi Monji, in whose name alone the lands in question continued in the property card, ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 18 WP1489.2008-9.1.2015.doc petitioner nos.2 to 4 did not either point out to the authorities about the death of Nenshi Monji or about their having become the trustees of the family trust.
12.5 In view of the above, it is not open to the petitioners to find fault with the impugned acquisition notification on the ground that the show cause notice was not served upon the trustees of petitioner no.1 trust. The petitioners are estopped from raising such a contention in the facts of the present case.
13. It is true that the other contentions raised by the petitioners about non-issuance of notice under section 5 of the Slum Act and the contentions based on sections 12 and 13 of the Slum Act raise serious debatable questions of law. On the one hand, the petitioners contended that the provisions under the Slum Act particularly sections 9, 11, 12 and 13 thereof confer rights on the owners of the land to carry out works of improvement or improvement work on the land declared as slums, including the right to carry out re-development of the property and rehabilitation of slum, it is only if the owners of the land decline to carry out such improvement in the matter of rehabilitation of slums, the State can resort to acquisition under section 14 of the Act.::: Downloaded on - 16/01/2015 23:46:38 :::
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14. On the other hand, learned counsel for the respondents submitted that the State Government had already issued a General Slum Rehabilitation Scheme notification dated 9 April 1998 declaring the Slum Rehabilitation Scheme in the city of Mumbai, laying down the parameters for slum rehabilitaion and, therefore, the lands which were declared as slum land and which satisfy the criteria laid down in the above Notification are to be treated as slum rehabilitation areas and, therefore, by virtue of section 3C of the Slum Act, the provisions of sections 5, 11, 12 and 13 of the Slum Act are not applicable to such land. It is also further submitted on behalf of the respondents that in any view of the matter, the matter of slum rehabilitation is governed by the provisions of Regulation 33(10) of the Development Control Regulations for Greater Mumbai 1991 under the Maharashtra Regional and Town Planning Act, 1966.
15. Relevant portion of regulation 33(10) of DCR reads as under:
"I. Eligibility for redevelopment Scheme.--(a) For redevelopment of slums including pavements, whose inhabitants, names and structures appear in the electrol (sic) roll prepared with reference to 1st January 1995 or a date prior thereto, but where the inhabitants stay at present in the structure, the provisions of Appendix IV shall apply on the basis of a tenement in exchange for an independently numbered structure.
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krs 20 WP1489.2008-9.1.2015.doc II. Definitions of Slum, Pavement and structure of hut.--(i) For this purpose, slums shall mean those cenused (sic) or declared and notified, in the past or hereafter under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, Slum shall also mean areas/pavement streches hereafter notified as Slum Rehabilitation Areas or deemed to be and treated.
(ii) If any area fulfills the conditions laid down in section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to qualify as slum area and has been censused (sic) or declared and notified shall be deemed to be and treated as Slum Rehabilitation Areas.
(iii)Slum rehabilitation area shall also mean any area declared as such by the Slum Rehabilitation Authority though preferably fulfilling conditions laid down in section 4 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to qualify as slum area and/or required for implementation of any slum rehabilitation project.
Any area where a project under Slum Rehabilitation Scheme has been approved by CEO/SRA shall be deemed slum rehabilitation area.
(iv) Any area required or proposed for the purpose of construciton of temporary or permanent transit campus and so approved by the Slum Rehabilitaiton Authroity shall also be deemed to be and treated as Slum Rehabilitaiton Areas, and projects approved in such areas by the Slum Rehabilitation Authority shall be deemedd to be Slum Rehabilitaiton Projects.
(v) to (viii) ......................................................"
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16. A Division Bench of this Court (H.L.Gokhale & A.S.Oka,JJ.), inter alia, framed the following question and took the following view in Om-Sai Darshan Cooperative Housing Society (supra):
"Whether the issuance of notification under section 3-C(1) of the Slum Act is a condition precedent for sanction of slum redevelopment scheme governed by D.C. Regulation 33(10)?"
"20. On plain reading of the Annexure to Regulation 33(10) it is obvious that for sanction of a scheme governed by the said Regulation in respect of a parcel of land, it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area in exercise of power under Section 3-C(1) of the Slum Act.
The Slum Rehabilitation Scheme can be sanctioned in respect of a slum as defined in clause II of Annexure to Regulation 33(10). Under the said Annexure there can be a scheme for a viable stretch of pavement also. The learned Single Judge deciding Ramkali's case was not concerned with a scheme under D.C.Regulation No. 33(10). The proposition laid down by him will have to be read as one confined to the situation before him. Question No. 1 is therefore answered in the negative. The question No. 2 has been also answered in the foregoing paragraphs."
17. On the other hand, another Division Bench of this Court (D.K.Deshmukh & N.D.Deshpande,JJ.) in Maruti V. Mane v. Smt. Ramkali Sitaram Kushawaha & Ors. in Appeal no.324 of 2004 in Writ Petition no.608 of 2004) decided on 14 February 2011 dealt with the fact situation noted by the Division Bench in the following words:
::: Downloaded on - 16/01/2015 23:46:38 :::krs 22 WP1489.2008-9.1.2015.doc "(i) The property which is subject matter of this appeal has been declared to be a slum under the provisions of Section 4 of the Act.
(ii) A notification under Section 3B of the Act has been issued in relation to that land including other lands generally which has been published in the Maharashtra Government Gazette dated 19.4.1998.
(iii) Admittedly no notice under Section 5 of the Act has been issued in relation to the suit property.
(iv) A declaration under Section 3C of the Act has not been issued.
(v) What is challenged in the petition is order made under Section 14 of the Act."
The Division Bench then observed:
"It is, thus, necessary that for the purpose of making valid order under Section 14 of the Act, a satisfaction has to be recorded by the Competent Authority as also by the State Government that in any slum area the work of improvement is to be carried out. So far as carrying on the work of improvement in a slum area by a competent authority is concerned, the provisions of Section 5 of the Act are relevant."
The Division Bench then observed:
"Perusal of the above quoted provisions of Section 5 of the Act shows that when a Competent Authority is satisfied that any slum area is capable of being improved at a reasonable expenses, it has to issue notice to the owner to raise objection if any. After considering the objection raised the competent authority can carry out the development work. Thus, an order recording satisfaction that in any slum area ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 23 WP1489.2008-9.1.2015.doc any improvement work is to be carried out by the Competent Authority after issuance of notice to the owner, is a condition precedent for making an order under Section 14 of the Act. The Competent Authority has to issue notice to the owner to raise objection to the intention of the Competent authority to carry out the improvement work. It cannot be forgotten that when a notice under Section 5 of the Act is issued, the property continues to be owned by the owner, and therefore, the owner cannot be prevented by anybody from carrying out the work which may be necessary to prevent the danger, which may be necessary for improvement. In any case, in this case, it is an admitted position that before order under Section 14 of the Act was made, no notice under Section 5 of the Act was issued to the owner. Obviously, therefore, making of order under Section 14 of the Act without complying with the requirements of Section 5 of the Act was not valid, and therefore, we do not find any error in the order of the learned Single Judge."
The Division Bench further observed:
"Section 5 of the Act contemplates issuance of notice to the owner so that objection can be raised to the intention of the Competent Authority to carry out development. The same purpose is served by the procedure that is to be followed under Section 3C of the Act, because Section 3C of the Act also contemplates an opportunity to raise objection being given. It is thus clear that the procedure under Section 14 of the Act is altered only when the declaration under Section 3C of the Act is made. In the present case, admittedly, declaration under Section 3C of the Act has not been made, and therefore, Section 14 of the Act will be applicable without any modification, and therefore, Section 5 of the Act will have to be complied with."::: Downloaded on - 16/01/2015 23:46:38 :::
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18. Dealing with the judgment of the Division Bench in Om-Sai Darshan Cooperative Housing Society case, the Division Bench in Maruti V. Mane case held that the observations made by the Division Bench in Om-Sai Darshan Cooperative Housing Society case make it clear that there is no conflict between the provisions of the Slum Act and DC Regulation 33(10). The Division Bench further held:
"In our opinion, for reading and interpretation of the provisions of the Slum Act one cannot rely on the provisions contained in DC Regulations which is a subordinate legislation under some other Statute though it may be a related Statute. Once we find that the intention of the Legislation is clear that an order for acquisition of land can be made only after calling for objections under Section 5 of the Act, in our opinion, we will not be justified in diluting that requirement by referring to subordinate Legislation made under some other enactment."
19. Learned counsel for respondent no.7 submitted in the first place that the General Slum Rehabilitation Scheme notification dated 9 April 1998 is required to be treated as a declaration under section 3C(1) of the Slum Act and, therefore, in view of the said declaration, the provisions of section 5 would not apply in the facts of the instant case. The submission is contested by the learned counsel for the petitioners on the ground that the General Slum Rehabilitation Scheme dated 9 April 1998 was only an order under section 3B of the Act declaring general slum rehabilitation scheme and it was not a declaration under section 3C of the Slum Act.
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20. Learned counsel for the respondents then made an attempt to have the matter referred to a larger Bench on various grounds by submitting that the decision in Maruti V. Mane case requires reconsideration, inter alia, on the ground that:
(i) D.C. Regulation 33(10) is a complete answer to the question raised by the petitioner, as it gives clear definition of slum and slum rehabilitation area as well as deemed slum rehabilitation area;
(ii) the said Development Control Regulation is a complete code by itself for slum rehabilitation scheme;
(iii) as per decision of this Court, the D.C. Regulations have the force of law and are not to be treated as a mere subordinate legislation; and
(iv) The Division Bench in Om-Sai Darshan Cooperative Housing Society case (supra) has specifically held that once a slum falls in clause II of Annexure to DCR 33(10), it is not necessary to have a declaration of the particular parcel of land as a slum rehabilitation area under section 3-C(1) of the Slum Act.
21. We, however, do not propose to examine the controversy centering around the interpretation of sections 3C, 5, 11, 12 and 13 of the Slum Act on the one hand and Regulation 33(10) of the Development Control Regulations (`DCR') under the ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 26 WP1489.2008-9.1.2015.doc Maharashtra Regional and Town Planning Act, 1966 on the other hand because, in our view, the matter needs, and deserves, to be decided after taking into consideration the following factual aspects:
(a) the delay of one-and-a-half years in filing the writ petition after the impugned Notification for acquisition of the land was issued under section 11 of the Slum Act;
(b) the conduct on the part of the petitioners in not getting their names recorded in the property card and in allowing the name of the original owner Nenshi Monji, grandfather of the petitioners, to continue to be in the property card and in refusing to accept the show cause notices issued under section 14 of the Slum Act prior to acquisition of the land.
(c) the re-development of the slum has to be done by a developer who has obtained consent of 70% of the eligible slum dwellers for undertaking the Slum Rehabilitation Scheme under Appendix IV (1.15) of regulation 33(10). The society of slum dwellers (respondent no.5) which has already accepted the Slum Rehabilitation Scheme of the developer, respondent no.7, has not only opposed the petition by filing an affidavit, but at the hearing also opposed any redevelopment or rehabilitation by the petitioners.::: Downloaded on - 16/01/2015 23:46:38 :::
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(d) out of 412 families of slum dwellers, 239 slum
dwellers have already vacated their slums and they are being paid rent by the developer for alternate temporary accommodation at the rate of Rs.1,40,000/- per day and more than 70% of the 412 families of slum dwellers (respondent no.5) have already given consent for contract with respondent no.7 developer.
(e) 412 families of slum dwellers living in the midst of filth and squalor are waiting for their rehabilitation for the last nine years after acquisition of the land for the purpose of their rehabilitation. Any interference with the acquisition made in December 2005 will further extend their agonies.
22. In the first place, the petition suffers from gross delay, laches and acquiescence. The impugned Notification acquiring the lands in question was issued on 22 October 2005. This petition came to be filed on 27 May 2008 i.e. after a lapse of two years and five months. On the one hand, no satisfactory explanation has been given for such gross delay and on the other hand, respondent no.7 developer and respondent no.5 slum dwellers' housing society proceeded with necessary steps for preparation of the list of eligible slum dwellers for rehabilitation. In view of the landslide, some of the slum structures were required to be demolished and the occupants had to be shifted to temporary accommodation for which the developer is paying the rent and has by now paid Rs.15 crores by way of rent, that is, at the rate of Rs.1,40,000/- per day.
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23. As regards the explanation for delay, though the petitioners have purported to give an explanation to the effect that the petitioners were not aware about the issuance of the commencement of acquisition proceedings and notification dated 22 December 2005 and that the petitioners came to know about the same only in April 2008, at the hearing, learned counsel for the petitioners fairly stated that the petitioners were aware about the acquisition Notification. But in view of the alleged illegalities in issuance of the said Notification, the petitioners are entitled to the reliefs prayed for, notwithstanding the delay of two years and five months in filing the writ petition.
24. We are not impressed by this argument. As indicated above, the writ jurisdiction is a discretionary remedy and the Court would decline to issue a writ where the petitioner has not been vigilant and the petition suffers from delay, laches and acquiescence.
25. Coming to the next relevant consideration, what emerges is that the conduct on the part of the petitioners has been such that the petitioners have not even otherwise shown due diligence for protection of their property rights. The facts highlighted hereinabove indicate that the conduct on the part of the petitioners not only in not getting the names of the trustees/beneficiaries recorded in the property card but also ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 29 WP1489.2008-9.1.2015.doc refusal to accept the show cause notices issued under sections 14 and 17 to complete the process of acquisition and thereafter till declaration of compensation, and not pointing out the factum of death of Nenshi Monji, are facts which need to be taken into consideration while exercising the discretionary jurisdiction under Article 226 of the Constitution, because as per the settled legal position, writ jurisdiction is extraordinary, prerogative and discretionary where it is not sufficient for the writ petitioner to point out some illegality but the writ petitioner must also satisfy the Court that the impugned action has caused grave injustice to the writ petitioner. In the facts of the present case, we find that granting any relief to the petitioner would, in fact, do grave injustice to the slum dwellers who are waiting for the last nine years after acquisition of their property in quesiton.
26. Now, coming to the third relevant aspect, we find that even if the lands in question were not acquired by the State Government and the petitioners were ready and willing to carry out the work of redevelopment of slums by undertaking a slum rehabilitation scheme on their own, the petitioners would have been required to obtain consent of 70% of the eligible slum dwellers for undertaking such a slum rehabilitation scheme. This is the undisputed requirement of Regulation 33(10) of the DCR, the relevant portion of which reads as under :
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APPENDIX-IV
[Regulation 33(10)]
"1.15 Where 70 per cent or more of the eligible
hutment-dwellers in a slum or pavement in a viable stretch at one place agree to join a rehabilitation scheme, it may be considered for approval.
Provided that nothing contained herein shall apply to slum Rehabilitation Projects undertaken by the State Government or Public authority or as the case may be a Government Company as defined in Section 617 of the Companies Act, 1956 and being owned and controlled by the State Government."
27. In the facts of the present case, respondent no.5 -- slum dwellers housing society (proposed) has filed affidavit dated 23 August 2011 supporting the slum rehabilitation scheme of respondent no.7 developer and at the hearing also, learned Senior Advocate appearing for the slum dwellers housing society has stated in unequivocal terms that the slum dwellers society wants the slum rehabilitation scheme to be undertaken only by respondent no.7 developer and by no other person, much less by the petitioners. In this view of the matter, even if the petitioners were to be granted any relief by quashing the acquisition Notification dated 22 December 2005, the petitioners would not be able to undertake or implement any slum rehabilitation scheme on the lands in question where eligible slum dwellers are residing in 334 protected slum structures in conditions of filth and squalor.
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28. The pendency of this petition and the status quo order passed by this Court on 30 July 2008 at the instance of the petitioners has considerably delayed implementation of the Slum Rehabilitation Project for which L.O.I. was granted by the Slum Rehabilitation Authority as far back as on 23 September 2010. But for the status quo order obtained by the petitioners, respondent no.7 would have completed the project and implemented the project for rehabilitation of 334 families of slum dwellers. Hence, any interference by this Court at this stage in exercise of its extraordinary writ jurisdiction at the instance of the petitioners who have not shown any diligence before filing the petition would only defeat the ends of justice.
29. The Apex Court laid down the following principles on the discretionary nature of writ jurisdiction of the High Court in State of Maharashtra & Ors. v. Prabhu4:
"4. Even assuming that the construction placed by the High Court and vehemently defended by the learned counsel for respondent is correct should the High Court have interfered with the order of Government in exercise of its equity jurisdiction. The distinction between writs issued as a matter of right such as habeas corpus and those issued in exercise of discretion such as certiorari and mandamus are well known and explained in countless decisions given by this court and English Courts. It is not necessary to recount them. The High Courts exercise control over Government functioning and ensure obedience of rules and law by enforcing proper, fair and just 4 (1994) 2 SCC 481 ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 32 WP1489.2008-9.1.2015.doc performance of duty. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power."
30. We are, therefore, of the view that the cumulative effect of the above circumstances is that the petitioners do not deserve to be granted any relief in the matter challenging acquisition Notification dated 22 December 2005 issued under section 14 of the Slum Act.
31. We are, therefore, not inclined to exercise our prerogative, extraordinary and discretionary jurisdiction in favour of the petitioners in view of the aforesaid equitable considerations which tilt the balance in favour of respondent no.5 co-operative society of slum dwellers and respondent no.7 developer who has already invested Rs.50 crores in the project. We, therefore, decline to set aside the acquisition Notification dated 22 December 2005 issued under section 14 of the Slum Act.
32. The next question is whether the petitioners are entitled to and deserve to be granted the other relief in the matter of challenge to the award dated 19 May 2006 awarding compensation of only Rs.34,992/- passed by the Deputy Collector under section 17 of the Slum Act.
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33. In this behalf, the principles for determination of the compensation are as under :
(a) Section 17 of the Slum Act read with the First Schedule to the said Act lays down the principles for determination of the net average monthly income. Section 17(3) of the Slum Act provides that where no agreement is reached between the Government and the land owner, the amount payable as compensation in respect of any land acquired shall be "an amount equal to sixty times the net average monthly income actually derived from such land during the period of five consecutive years immediately preceding the date of publication of the notice referred to in section 14".
(b) Section 17(4) read with the First Schedule to the Slum Act provides that for such determination, the Competent Authority may hold any local inquiry and obtain, if necessary, certified copies of extracts from the property tax assessment books of the local authority concerned showing the rental value of such lands. After such gross rent actually derived by the owner of the land is ascertained, forty per cent of the gross monthly rental is to be deducted in lieu of the expenditure which the owner of the land would normally incur for payment of any property tax to the local authority, for collecting charges, for works of repairs and maintenance of buildings, if any, on the lands, etc. ::: Downloaded on - 16/01/2015 23:46:38 ::: krs 34 WP1489.2008-9.1.2015.doc
(c) Paragraph 5 of the First Schedule provides that where the land has been unoccupied or the owner has not received any rent for occupation of the land during the whole year or any part of the period of five years preceding the date of notice under section 14, the gross rent shall be taken to be the income the owner would have derived if the land would have been leased out for rent during the said period. For this purpose, the rent actually derived from the land during a period prior or subsequent to the period during which it remained vacant or from similar land in the vicinity shall be taken into account.
34. However, when one considers that paragraphs 3 and 4 of the principles for determination of net average monthly income laid down in the First Schedule to the Slum Act provide for further deduction of forty per cent of the gross monthly rental actually derived or derivable rent by the owner of the land, the amount of compensation would work out to thirty-six times the gross average monthly income actually derived or derivable by the owner of the land i.e. only three times the amount of average gross annual income.
35. By judgment dated 10 May 2013 in Writ Petition no.2582 of 2003 (Sara Harry D'Mello v. State of Maharashtra & Ors.) and connected matters, including the present Writ Petition, a Division Bench of this Court has upheld the constitutional validity of section 17 of the Slum Act read with the First Schedule thereto, because sections 14 and 17 of the Slum Act and other provisions of the said Act are in furtherance of the goals set out in Article 39(b) and ( c) of the Constitution. We have further held in the said judgment as under:
::: Downloaded on - 16/01/2015 23:46:38 :::krs 35 WP1489.2008-9.1.2015.doc "75. Acquisition of slum lands under the provisions of the Slum Act are not merely for the benefit of a large number of persons residing in sub-
human conditions in slums but also to ensure that improvement of their living conditions will lead to improvement of the urban economy which is very much dependent upon the labour force being supplied by the occupants of hutments in the slums. As per the settled legal position, scope of judicial review in such cases is to find out whether the principles for valuation set out in the legislation are relevant to the principles for determination of value of the land and since we find that the principles are relevant, the scope of the judicial review stops here and we are not concerned with the final outcome or the actual amount of compensation arrived at by the Competent Authority".
36. Even after upholding the constitutional validity of the aforesaid provisions of sections 14 and 17 of the said Act, by the aforesaid judgment, we granted one more opportunity to the aggrieved land owners to challenge the fixation of compensation by filing appeals under section 17(6) of the Slum Act within 30 days from the date of the judgment, if not already done.
37. There is no dispute about the fact that the total area of the lands acquired by the State Government under the aforesaid Notification dated 22 December 2005 is approximately 9,140 sq.meters. But the Deputy Collector has awarded compensation of only Rs.34,992/-. On the face of it, therefore, the compensation at the rate of less than Rs.4/- (Rupees Four only) per sq. mtr. in the city of Mumbai appears to be illusory.
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38. In view of the finding that the compensation is illusory, we would have ordinarily quashed the award dated 19 May 2006 and permitted the petitioners to file an appeal before the Appellate Authority for enhancement of the compensation amount. However, looking to the aforesaid principles for determination of compensation and having regard to the fact that the lands in question are occupied by slum dwellers, enhancement of the compensation amount, if at all, would not be significantly substantial. At the same time, having regard to the fact that the petitioners have lost about 9,140 sq. mtrs. of land under the impugned Notification dated 22 December 2005, we are of the view that the petitioners deserve to get compensation and not mere illusory amount for compulsory acquisition of their lands.
39. It is true that ordinarily an authority acquiring land has to pay compensation and, therefore, it would be the liability of the State Government to pay enhanced compensation, but having regard to the fact that the land is to be utilized for rehabilitation of slum dwellers, but the slum dwellers are not in a position to bear any financial burden, we called upon the learned counsel for respondent no.7 developer to indicate whether respondent no.7 was ready to pay any sum by way of compensation or otherwise to the petitioners for acquisition of the lands in question on which respondent no.7 is going to execute the Slum Rehabilitation Project. The learned counsel for respondent no.7 submitted that ::: Downloaded on - 16/01/2015 23:46:39 ::: krs 37 WP1489.2008-9.1.2015.doc though respondent no.7 is legally not bound to pay any such compensation to the petitioners, respondent no.7 is ready and willing to pay a reasonable amount.
40. Our attention is invited to the provisions of regulation 1.11 of Appendix IV of Regulation 33(10) as modified by Government Order dated 16 April 2008 which after amendment read thus:
"1.11 Premium for ownership and Terms of Lease.--The part of the Government/ MCGM/MHADA land on which the rehabilitation component of the Slum Rehabilitation Scheme will be constructed shall be leased to the Co-operative Housing Society of the slum dwellers on 30 years lease at the lease rent of Rs.1001 to 4000 sq. m. of the land or part thereof and renewable for a further period of 30 years. The same conditions shall prevail for the land under the free sale component and not through the society of hutment dwellers, and pending the formation of the Society/Association of the purchasers in the free sale component, it shall be leased to the Developer. The said lease deed shall be executed within 60 days from the date of building permission being issued.
In addition to above, the Developer/Co-op. Housing Society shall pay premium at the rate of Twenty five percent in terms of Ready Reckoner in respect of Slum Rehabilitation Scheme proposed to be undertaken on lands owned by Government, Semi- Government Undertakings and Local Bodies."
If the land occupied by the slum dwellers had belonged to the State Government, the amount of premium payable by the developer to the State Government under the above Regulation ::: Downloaded on - 16/01/2015 23:46:39 ::: krs 38 WP1489.2008-9.1.2015.doc would have been 25% of the Ready Reckoner price of the land on the date of acquisition. If the two parcels of land in question had belonged to the State Government, the premium payable by the developer to the State Government under the above Regulation would have been 25% of the Ready Reckoner price of the land. On the date of the acquisition notification i.e. 22 December 2005, the Ready Reckoner price of the land was Rs.13,500/- per sq. mtr. and the area of the land being 9140 sq. mtrs., the amount of premium payable would have been approximately Rs.2.17 crores. The learned counsel for respondent no.7 stated, under instructions of respondent no.7, that respondent no.7 is ready and willing to pay the petitioners a sum of Rs.2.17 crores, without prejudice to the rights and contentions of respondent nos.5 and 7 and only to buy peace and in order to execute and complete the Slum Rehabilitation Project at the earliest.
41. We accept the above statement made on behalf of respondent no.7 and propose to apply the following maxim of equity as quoted in Corpus Juris Secundum Vol. 30.
"104. Equity Delights to Do Justice and Not by Halves The maxim that equity delights to do justice, and that not by halves, means that it is the aim of equity to have all interested parties in court and to render a complete decree adjusting all rights and protecting the parties against future litigation.::: Downloaded on - 16/01/2015 23:46:39 :::
krs 39 WP1489.2008-9.1.2015.doc Equity delights to do justice, and that not by halves. The significance of this maxim lies in its last words, and it means that it is the aim of equity to have all interested parties in court and to render a complete decree adjusting all rights and protecting the parties against future litigation. The principle of the maxim embraces the well-established doctrine, discussed supra 67, that when equity once acquires jurisdiction it will retain it so as to afford complete relief."
42. In the result, the writ petition is disposed of in the following terms:
(a) We do not interfere with the acquisition notification dated 22 December 2005 issued by the State Government under section 14 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.
(b) We decline to interfere with the award dated 19 May 2006 of the Deputy Collector (Encroachment Removal) awarding compensation of Rs.34,992/- under section 17 of the Slum Act, in view of the statement of the learned counsel for respondent no.7 developer that respondent no.7 will pay the petitioners a sum of Rs.2.17 crores, without prejudice to the contention of respondent nos.5 and 7 that respondent nos.5 and 7 are not liable to pay any amount to the petitioners.::: Downloaded on - 16/01/2015 23:46:39 :::
krs 40 WP1489.2008-9.1.2015.doc The amount of Rs.2.17 crores shall be deposited by respondent no.7 with the Prothonotary and Senior Master of this Court within a period of six weeks from today. Upon deposit of the aforesaid amount, the petitioners will be at liberty to withdraw the same in full and final settlement of their claim for compensation of the lands which are the subject-matter of this petition and upon withdrawal of the said amount, the petitioners shall not be entitled to claim any other or further amount from the State Government, Slum Rehabilitation Authority, respondent no.5 society of slum dwellers or respondent no.7 developer or any other respondent-authority.
43. The writ petition is disposed of in the above terms with no order as to costs. The interim order is vacated. The Contempt Petition is also dismissed.
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