Bombay High Court
A.H.Wadia Tust And 4 Ors vs State Of Maharashtra And 5 Ors on 9 January, 2023
Author: R.D.Dhanuka
Bench: R.D. Dhanuka, M.M. Sathaye
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1347 OF 2019
1. A.H. Wadia Trust )
A Public Charitable Trust, registered under )
the Maharashtra Public Trusts Act, 1950 )
under Registration No.PTR No.E-470, )
(Bom) having its office at 70, )
Dr.V. B. Gandhi Marg, )
Mumbai - 400 023. )
2. Jehangir Adi Wadia )
3. Muncherji Nusserwanji Muncherji Cama )
4. Adil Jehangir Wadia )
5. Sheroo Jehangir Wadia )
Petitioner Nos. 2 to 5, all Adults, all of )
Mumbai, Indian Inhabitants, being the )
present Trustees of the Petitioner No.1 )
Having their office at 70, )
Dr.V. B. Gandhi Marg, )
Mumbai - 400 023. ) .. Petitioners
Versus
1. State of Maharashtra )
having their office at Housing Department )
Madam Cama Raod, Hutatma Raj Guru Chowk)
Mantralaya, Mumbai - 400 032. )
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2. Slum Rehabilitation Authority )
Administrative Building, Anant Kanekar Marg)
Bandra (East), Mumbai - 400 051. )
3. Chief Executive Officer )
Slum Rehabilitation Authority )
Administrative Building, Anant Kanekar Marg)
Bandra (East), Mumbai - 400 051. )
4. Deputy Collector )
Slum Rehabilitation Authority )
Administrative Building, Anant Kanekar Marg)
Bandra (East), Mumbai - 400 051. )
5. Utkarsh Co-operative Housing )
Society Limited (proposed) )
Village-Sahar, Taluka -Andheri, )
Vile Parle (East), Mumbai )
6. Baluwala Builders )
A/902, Aristo Saphire CHS, )
2nd Hasnabad Lane, Santacruz (West), )
Mumbai - 400 054. ) .. Respondents
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Mr.Vineet Naik, Senior Advocate a/w Mr.Chaitanya Chavan and
Mr.Sameer Panwalakar i/by M/s.LR & Associates for the petitioners.
Mr.Amit Shastri, , AGP for the respondent no.1 -State.
Mr.Vijay Dinkarrao Patil for the respondent nos.2, 3 & 4.
Mr.D.S. Sakhalkar i/by Mr.Nutan Moily for the respondent nos.5 & 6.
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CORAM : R.D. DHANUKA &
M.M. SATHAYE, JJ.
RESERVED ON : 2nd December 2022 PRONOUNCED ON : 9th January 2023 Judgment :-(per R.D.Dhanuka, J.) . Rule. Mr.Shastri, learned AGP waives service for the respondent no.1. Mr.Patil, learned counsel waives service for the respondent nos.2, 3 and 4. Mr.Sakhalkar, learned counsel waives service for the respondent nos.5 & 6. Rule is made returnable forthwith.
2. By this petition filed under Article 226 of the Constitution of India, the petitioners have prayed for a writ of certiorari for quashing and setting aside the impugned order dated 9th February 2017, report dated 9th February 2017 and the notification dated 23rd May 2018 issued by the respondents.
3. The petitioners also prayed for a writ of mandamus for an order and direction against the respondent no.2 - Slum Rehabilitation Authority (SRA) and the respondent no.3 - Chief Executive Officer (CEO) to first accord/offer a reasonable opportunity to the petitioners to redevelop the said land in accordance with the law under the provisions of Section 13(1) read with Section 3D(b)(iii) and Section 3B(4)(c) of Chapter IA of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short "the Slum Act"). Some of the relevant facts for the purpose of deciding this petition are as under :-
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4. It is the case of the petitioners that the petitioners are the absolute owners of a piece of land bearing CTS No.46, 46/1 to 39 situated at Village Sahar, Taluka Andheri, Mumbai admeasuring 3022.40 sq. mtrs. (hereinafter referred to as "the writ property"). It is the case of the petitioners that on 3rd July 2015, the respondent no.6 developer approached the petitioners for purchase of the writ property. On 4 th August 2015, the respondent no.6 made an application before the CEO of SRA for seeking acquisition of land bearing CTS Nos.22, 27, 27/1 to 11, 28, 28/1, 44, 44/1 to 4, 45, 46, 46/1 to 39 as a Slum Rehabilitation Area under the provisions of Section 14(1) of the Slum Act without giving any notice/intimation to the petitioners.
5. On 23rd September 2015, the respondent no.3 issued a notice to conduct survey of the said area. The petitioner no.1-trust opposed the said survey being conducted in such shoddy and hasty manner. Survey of the said area however, was carried out. On 16 th January 2016, the respondent no.6 made an application to the SRA for declaring the said area which includes the writ land as a Slum Rehabilitation Area. It is the case of the petitioners that the petitioners have not been issued any notice or were not informed by the respondent no.6 developer in respect of the said application dated 16th January 2016.
6. On 6th February 2016, the SRA issued a public notice inviting objections from the interested persons to the proposed declaration as a Slum Rehabilitation Area. The CEO of SRA issued two notices i.e. 1st March 2016 and 10th March 2016 respectively only to the respondent no.5-Society, the respondent no.6 developer and the promoter of the Thakur Chawl calling upon them to participate in a ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 5 wp-1347.19(j).doc hearing to be conducted on the issue of declaration of the said area as Slum Rehabilitation Area.
7. It is the case of the petitioner that ex parte hearing was conducted by CEO of SRA on 15th March, 2016 without granting any opportunity to the petitioners to participate in the same proceedings. According to the petitioners, the petitioner no.1 Trust could not take any steps to represent their side before the CEO, SRA. On 7 th April 2016, CEO of SRA passed an order declaring and notifying inter alia the writ property as Slum Rehabilitation Area in terms of Section 3C of the Slum Act. On 11th April 2016, a Gazette Notification was issued publishing the Notification notifying and declaring inter alia the writ land as Slum Rehabilitation Area.
8. On 30th May 2016, the SRA issued a notice to the petitioners calling upon them to show cause as to why the writ property should not be acquired under Section 14(1) of the Slum Act. By letter dated 14 th June 2016, the petitioners contended that the said land had not been declared as Slum Rehabilitation Area and sought inspection of all the documents. It is the case of the petitioners that as there was no response to the said letter dated 14th June 2016, the petitioners filed an application under the Right to Information Act, 2005.
9. On 22nd July 2016, SRA issued another notice calling upon the petitioners to show cause as to why the said land should not be acquired under the provisions of the Slum Act. On 6 th December 2016, after CEO of SRA heard the objections, the petitioners submitted their written submissions before the SRA. It is the case of the petitioners that ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 6 wp-1347.19(j).doc it was pointed out that the acquisition of the writ property is being sought to be done at the instance of the developer which is impermissible.
10. On 9th February 2017, the CEO of SRA passed the impugned order recommending acquisition inter alia of the writ property and allowed the application filed by the respondent no.6 developer for acquisition inter alia of 1336.80 sq.mtrs. out of the said area. On 9 th February 2017, the CEO of SRA submitted its impugned report to the State recommending acquisition inter alia of 685.3 sq.mtrs. out of the writ property. On 23rd May 2018, the State Government published the impugned Notification for declaring and notifying inter alia the portion of the writ property for acquisition as per Section 14(1) read with Section 3D of the Slum Act.
11. On 5th December 2018, the petitioners received a notice issued by the SRA inter alia informing about the acquisition of their land and further calling upon the petitioners to submit the information regarding the revenue earned as regards the writ property to determine compensation under Section 17 of the Slum Act. On 8 th March 2019, the petitioners filed this petition for various reliefs.
12. Mr.Vineet Naik, learned senior counsel for the petitioners invited our attention to various documents annexed to the writ petition. He submitted that there were adequate basic amenities, the said land was not overcrowded and did not warrant action under Section 3B, Section 3C and Section 14 of the Slum Act. He submitted that the respondents had carried out survey of the writ property without giving any notice to the petitioners. In response to the private notice issued to the petitioners ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 7 wp-1347.19(j).doc by the SRA inviting their objection to the possible acquisition of the said writ land, without granting personal hearing to the petitioners, the SRA issued a notification under Section 3C of the Slum Act without taking consent of the petitioners. The Notification under Section 3C itself was thus illegal and in violation of the principles of natural justice.
13. It is submitted by the learned senior counsel that the SRA ought to have given a reasonable opportunity to the petitioners to submit its scheme after issuance of notification under Section 3C of the Slum Act. The petitioners being the owners of the land were willing to submit the scheme within a reasonable period.
14. It is submitted that the words "reasonable period" was substituted by 2018 amendment prescribing that the scheme which is submitted by the developer within 120 days from the date of issuance of Section 3C declaration. He also placed reliance on Section 13 of the Slum Act in support of this submission. He submitted that in this case, the declaration under Section 3C was issued prior to the date of amendment and thus the reasonable time ought to have been given to the petitioners to submit its scheme for the purpose of carrying out development on the writ property.
15. Learned senior counsel placed reliance on the judgment of this Court in case of Indian Cork Mills Private Limited vs. State of Maharashtra, 2018 (4) Bom.C.R. 618 and in particular paragraphs 56, 57, 60 to 62, 66, 67, 69, 73, 74, 76, 84, 95 to 97. He also placed reliance on the judgment of this Court in case of Anil Gulabdas Shah vs. State of Maharashtra & Others, 2011(1) Mh.L.J. 797. He submitted that the ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 8 wp-1347.19(j).doc entire action on the part of the respondent nos. 1 to 4 is contrary to the principles of law laid down by this Court in the aforesaid two judgments.
16. It is submitted that the respondent no.6 had initially applied for requisition of the land under section 14(1) of the Slum Act on 4 th August, 2015. When the respondent no.6 realized that the property of the petitioners could not have been acquired directly, the respondent no.6 applied for seeking a declaration in respect of the writ property as a slum rehabilitation area under section 3(C) of the Slum Act. He submitted that the SRA did not even bother to grant reasonable time to the petitioners to submit a proposal for redevelopment. Learned senior counsel placed reliance on the written submissions filed by the petitioners before the Chief Executive Officer, SRA.
17. Learned senior counsel for the petitioners submitted that the respondent no.6 have applied for a declaration under section 3 (C )(1) of the Slum Act on on 16th January, 2016. He submitted that before the issuance of the notification under section 14(1) of the Slum Act issued by the SRA on 13th May, 2016, the petitioners ought to have been called upon to submit their scheme. He submitted that though the petitioners had filed Originating Summons in this Court for interpretation of the Will, the petitioners are ready and willing to withdraw the said Originating Summons now and to submit the scheme for redevelopment within such time as this Court may direct.
18. It is submitted by the learned senior counsel that the decision taken by the Hon'ble Minister also was not communicated to the petitioners. On this ground itself the entire action on the part of the ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 9 wp-1347.19(j).doc respondents shall be quashed and set aside.
19. Mr.Patil, learned counsel for SRA on the other hand distinguished the judgment of this Court in case of Indian Cork Mills Private Limited (supra) relied upon by Mr.Naik, learned senior counsel for the petitioners on the ground that in that matter, there was no notice given to the land owner. The land owner had shown his readiness and willingness to carry out redevelopment on the plot which was the subject matter of the notification issued by SRA under the Slum Act. This Court had granted ad-interim status-quo order from taking possession. The award was already passed in that matter.
20. Learned counsel for SRA tenders a copy of the letter dated 18th May, 2022 issued through their advocate to the Chief Executive Officer of SRA and Tahsildar reiterating that the petitioner trust had filed the Originating Summons before this Court, which is pending. The said letter states that once the petitioner trust is permitted by this Court, the trust will redevelop the subject property by submitting the scheme for redevelopment under the Slum Act. He submitted that even today, the petitioners are not clear whether they are allowed to carry out development under the Will relied upon by the petitioners for which the petitioners have applied for clarification or interpretation by filing the Originating Summons.
21. It is submitted by the learned counsel that on 2 nd November, 2022, physical possession of the writ property has been already taken by SRA. The amount of compensation has been already deposited by SRA ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 10 wp-1347.19(j).doc with the Civil Court under section 17A of the said Fair Compensation Act. He relied upon the show cause notice dated 16 th June, 2015 from the SRA to the petitioners calling upon the petitioners to indicate whether they claim to have the first preferential right for implementation of the slum rehabilitation scheme on the subject property under amended DCR 33(10) as per section 13(1) of the Slum Act and in case of the petitioners having any claim to develop the subject property, the petitioners shall submit the documents to substantiate such claim and to submit the slum rehabilitation scheme in respect of the said land under the amended Regulation 33(10) of DCR within three months from the date of receipt of the said notice. He submitted that the petitioners however, did not submit any scheme inspite of an opportunity granted by SRA. He submitted that the notification under section 4(1) of the Slum Act was issued as back as in the year 1980. The petitioners did not bother to take any steps to challenge the said notification.
22. Learned counsel for SRA relied upon the judgment delivered by the Hon'ble Supreme Court in case of Murlidhar Teckchand Gandhi & Ors. vs. State of Maharashtra & Ors. dated 29th August, 2017 in Civil Appeal No.11077 of 2017 and submitted that the Hon'ble Supreme Court has clearly held that the provisions of section 14 of the Slum Act are independent under which land is acquired by the State, subject to the hearing of the objection pursuant to a show cause, and a decision has to be taken thereafter. He submitted that the provisions under Chapter III contain no express or implied stipulation that acquisition cannot be resorted to under the provisions of section 14 without recourse to any of the provisions contained in Chapter III. The Court cannot impose any ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 11 wp-1347.19(j).doc such stipulation which is against the legislative intent. He submitted that section 14 of the Slum Act can be invoked without issuing notification under section 3 (C) of the Slum Act and the said provision is an independent provision.
23. Learned counsel also placed reliance on the judgment delivered by a Division Bench of this Court on 31 st October, 2018 in Writ Petition (Lodging) No.2632 of 2018 in case of Rajesh G. Jain vs. State of Maharashtra & five others and batch of petitions and more particularly paragraphs 13, 14 and 18 and submitted that the judgment of this Court in case of Indian Cork Mills Private Limited (supra) was distinguished by the Division Bench of this Court in the said judgment in case of Rajesh G. Jain (supra). This Court had noted that there was no proposal submitted by the petitioners in that case for implication of the slum rehabilitation scheme.
24. It is submitted by the learned counsel that this Court in the said judgment in case of Indian Cork Mills Private Limited (supra) had followed the judgment in case of Ramniklal S. Kushawaha vs. Deputy Collector (2004) 3 Bom.CR 14 which judgment was overruled by the Hon'ble Supreme Court in case of Ramniklal S. Kushawaha (supra). Learned counsel for SRA also placed reliance on the judgment of this Court delivered on 31st May, 2022 in Writ Petition No.1863 of 2017 in case of Nusli N. Wadia vs. State of Maharashtra & Ors. and the judgment delivered on 17th November, 2022 in case of Deena Pramod Baldota vs. State of Maharashtra & Ors. and submitted that the judgment of this Court in case of Indian Cork Mills Private Limited ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 12 wp-1347.19(j).doc (supra) has been distinguished by this Court in the said two judgments.
25. Learned counsel for the respondent nos.5 and 6 submitted that the petitioners had withdrawn the earlier writ petition with liberty to reply to the notice. He submitted that though SRA had categorically called upon the petitioners to submit the scheme for redevelopment, the petitioners did not choose to submit the said scheme. He submitted that at this stage the petitioners have prayed for an opportunity to submit the scheme in prayer clause (d) of the petition. Seven other plot owners whose plots were also acquired under the notification issued under section 14(1) of the Slum Act, have not challenged the order of acquisition. Those seven plot owners are not impleaded as parties to the petition.
26. It is submitted that the Slum Authority has already deposited the amount of compensation. IOD is required to be issued in favour of the respondent nos.5 and 6. The respondent nos.5 and 6 have taken various steps after the notification under section 14(1) of the Slum Act has been issued. The demarcation of land is already done. The notification under section 4 is issued as far back as in the year 1981 which has not been challenged by the petitioners. He submitted that there is gross delay on the part of the petitioners in filing this petition and on this ground also, this Court shall not entertain this petition.
27. Mr.Naik, learned senior counsel for the petitioners in his rejoinder arguments submitted that in this case, notices were issued prior to the date of notification under Section 3C of the Slum Act. He made an attempt to distinguish the judgment of the Supreme Court in case of ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 13 wp-1347.19(j).doc Murlidhar Teckchand Gandhi & Ors. (supra) and submitted that the said judgment has already been considered by this Court in case of Indian Cork Mills Private Limited (supra). He submitted that in case of Indian Cork Mills Private Limited (supra), preferential right of the parties was not considered by this Court.
28. Learned senior counsel made an attempt to distinguish the judgment in case of Rajesh G. Jain Vs. State of Maharashtra & Ors. (supra) and submitted that the said judgment has been distinguished in the judgment in case of Indian Cork Mills Private Limited (supra). He submitted that section 14 of the Slum Act cannot be invoked at the behest of the owners. No notice under Section 13 was issued. No order was passed by the State Government as required under Section 14(1) of the Slum Act.
REASONS AND CONCLUSIONS :-
29. The question that arises for consideration of this Court is whether the impugned order dated 9 th February 2017 was passed in violation of the principles of natural justice causing any prejudice to the rights of the petitioners or not. It is not in dispute that the petitioners claimed to be the absolute owners of the writ property.
30. The respondents developer had approached the petitioners for purchase of the said writ property as far back as 3 rd July 2015 and thereafter made an application before the CEO of SRA for seeking acquisition of the writ property on 4 th August 2015 under the provisions of the Slum Act and more particularly under Section 14(1) of the Slum Act thereof.
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31. On 6th February 2016, the SRA issued a public notice inviting objections from the interested persons to propose declaration as a Slum Rehabilitation Area. No objection was raised by the respondents in response to the said public notice. The CEO of SRA passed an order under Section 3C declaring the writ property as Slum Rehabilitation Area and issued a notification in that regard which was duly published in Government Gazette.
32. The petitioners have not disputed that the SRA thereafter issued a notice on 30th May 2016 to the petitioners calling upon them to show cause as to why the writ property should not be acquired under Section 14(1) of the Slum Act. The petitioners had responded to the said notice contending that the said land had not been declared as Slum Rehabilitation Area. In response to the second notice dated 22 nd July 2016 issued by the SRA, the petitioners appeared and filed objections which were heard by the CEO of SRA. The petitioners had also filed written submissions before the SRA.
33. In this backdrop, we will consider whether the petitioners were granted a reasonable opportunity to submit its scheme after issuance of notification under Section 3C of the Slum Act or not.
34. A perusal of Section 3C of the Slum Act indicates that CEO is empowered to declare a land as Slum Rehabilitation Area. In this case, the petitioners all throughout had made their position clear that the originating summons filed by the petitioners for interpretation of Will propounded by the petitioners is pending before this Court even till today. The petitioners were thus not in a position to submit any scheme for ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 15 wp-1347.19(j).doc development of the writ property until the said originating summons would have been decided by this Court. The notice dated 18th May 2022 from the advocate representing the petitioners to the CEO of SRA and the Tehsildar-1 of SRA, during the pendency of this petition, also makes it clear that even in this notice sent recently, the petitioners reiterated that the petitioners had filed originating summons before this Court which is pending and once it is permitted, the petitioner will redevelop the subject property by submitting the scheme for rehabilitation under the Slum Act.
35. Mr.Naik, learned senior counsel for the petitioners could not dispute that the said originating summons is still pending before this Court. Learned senior counsel for the petitioners submitted that the petitioners may withdraw the said originating summons which is pending before this Court for quite some time if the petitioners are granted an opportunity to submit a scheme for redevelopment of the writ property even at this stage. This offer of the petitioners at this stage cannot be accepted on the ground that possession of the writ property has already been taken by the SRA on 2 nd November 2022. The amount of compensation has already been deposited with the Civil Court under Section 17 A of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. These facts are not disputed by the petitioners.
36. Be that as it may, we have perused the record which indicates that the show cause notice was issued by the SRA on 16 th June 2016 to the petitioners calling upon them to indicate whether they claim to have the first preferential right for implementation of the slum ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 16 wp-1347.19(j).doc rehabilitation scheme on the subject property under DCR 33(10) as per Section 13(1) of the Slum Act and in case if the petitioners have any claim to develop the subject property, the petitioners shall submit documents to substantiate the scheme and submit the said rehabilitation scheme within three months from the date of receipt of the said notice.
37. Admittedly the petitioners did not submit any scheme inspite of an opportunity granted by the SRA in this regard. We are thus not inclined to accept the submission made by the learned senior counsel for the petitioners that there was no opportunity granted by the SRA to the petitioners to submit a scheme of redevelopment of the property after issuance of Section 3C of the Slum Act.
38. A perusal of the record further indicates that several other owners' plots were also acquired under the said impugned notification issued under Section 14 (1) of the Slum Act. Those plots' owners however, did not challenge the said order of acquisition. The Slum Authority had already issued IOD in favour of the respondent nos.5 & 6. The respondent nos.5 & 6 have also taken various steps after the notification issued under Section 14(1) of the Slum Act has been issued. The demarcation of the land is already done by the respondent nos.5 and
6. Though the notification was issued by the SRA as far back as in the year 1981, the petitioners did not bother to challenge the said notification. There is gross unexplained delay on the part of the petitioners in impugning the said notification under Section 14(1) and also the notification under Section 3C of the Slum Act.
39. Be that as it may, in view of the steps already taken by the ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 17 wp-1347.19(j).doc Slum Authority as well as the respondent nos. 5 and 6, in pursuance of the notification issued under Section 3C read with Section 14(1) of the Slum Act which facts are not disputed by the petitioners, no case is made out for interfering with the impugned order/notification issued by the SRA.
40. In our view, there is no straight jacket formula applicable while following the principles of natural justice. The Court has to consider whether the party who has alleged violation of principles of natural justice was at all affected or any prejudice is caused to him in view of the alleged violation of principles of natural justice or not. In the facts of this case, though the petitioners have failed to show that there was any violation of principles of natural justice on the part of the respondents or any irregularities in issuing of notification under Section 3C or Section 14(1) of the Slum Act, on their own showing, the petitioners are not in a position to take any decision whether to carry out any development on the writ property or not in view of the originating summons seeking interpretation of the Will which remains pending before this Court.
41. Since the petitioners do not show whether they are entitled to develop the writ property till date, the petitioners cannot be allowed to take a stand that they were not granted any reasonable time to submit a proposal for redevelopment. We are not inclined to accept the submission of Mr.Naik, learned senior counsel for the petitioners that the notification under Section 14(1) preceded by notice under Section 3C of the Slum Act was issued at the instance of the respondent no.6.
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42. A perusal of the order passed by the Slum Authority allowing the application filed by the respondent no.6 and rejecting the objection raised by the petitioners indicates that the authority has recorded the statement made by the petitioners that since there was no clarity in Will of their ancestors, they have filed the originating summons in this Court for obtaining directions in respect of the construction of development work. In view of these facts, CEO of SRA has rightly allowed the application filed by the respondents in respect of the writ property and has rightly rejected the objection raised by the petitioners.
43. Mr.Naik, learned senior counsel for the petitioners could not dispute before this Court that the petitioners were waiting for outcome of the originating summons filed by the petitioners all these years, and thus during the pendency of the said originating summons petitioners could not submit a scheme for development though an opportunity was granted by withdrawing the said originating summons before this Court.
44. In so far as the submission of the learned senior counsel for the petitioners that there were adequate basic amenities, the said land was not overcrowded and did not warrant action under Section 3B, Section 3C and Section 14 of the Slum Act is concerned, these disputed question of fact cannot be entertained in this petition and that also at this stage. The CEO has taken all the steps in accordance with law and after giving full opportunity to the petitioners.
45. Supreme Court in case of Murlidhar Teckchand Gandhi & Ors. (supra) has construed Section 14(1) and various other provisions of the Slum Act and has held that Slum Rehabilitation scheme has a ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 19 wp-1347.19(j).doc totally different object under Chapter IA. It contains procedure with respect to slum rehabilitation which is not so in case of acquisition. Thus, the provisions of Chapter IA are not at all attracted. It is held that provisions of Section 14 are independent under which area is acquired by the State, subject to the hearing of the objection pursuant to a show cause, a decision has to be taken thereafter. The pre-requisite for exercise of power under Section 14 is the satisfaction of State Government that authority can execute work of improvement in "slum area" or any building in such area or redevelop "clearance area", and it is necessary that land within, adjoining or surrounded by any such area be acquired, it can initiate proceedings under section 14(1) of the Act.
46. Division Bench of this Court in case of Rajesh Jain Vs. State of Maharashtra (supra) distinguished the judgment of this Court in case of Indian Cork Mills Private Limited (supra) relied upon by learned senior counsel for the petitioner on the ground that no proposal has been submitted by the petitioner therein to implement the slum rehabilitation scheme in respect of the writ property. This Court also considered the fact that there were two petitions filed by the petitioners claimed to be the owners before this Court challenging the notification. This Court held that in absence of any proposal for implementing Slum Rehabilitation Scheme being submitted by the owners of the said property (apparently due to the disputes as regards the ownership of the said property), the question of consideration by SRA of any preferential right of the Petitioners for redevelopment of the said property did not arise.
47. This Court also considered that the said property was ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 20 wp-1347.19(j).doc declared as slum as far back as in the year 1979. This Court held that under section 13(1) of the Slum Act (as modified by Chapter 1-A), the petitioners are required to come forward with the Slum Rehabilitation Scheme within a reasonable time. Though not relevant for the purposes of the present Petitions, it is required to be noted that section 13(1) of Slum Act has been amended w.e.f. 26 April 2018 and the reasonable time appearing in the said section is now specified by adding the words 'which shall not be more than one hundred and twenty days.' Even though in this case, the said amendment is not applicable. The petitioners did not submit any proposal for carrying out construction within the reasonable time though the opportunity were granted. The principles of law laid down by this Court in case of Rajesh Jain Vs. State of Maharashtra (supra) would apply to the facts of this case. We do not propose to take different view in the matter.
48. This Court in case of Nusli N. Wadia (supra), after considering the judgment of this Court in case of Murlidhar Teckchand Gandhi & Ors. (supra) and several other judgments, held that as there was no proposal of the petitioners to implement the rehabilitation scheme on the writ property, the question of consideration by the authority of any preferential right of the Petitioner for redevelopment of the said property did not arise.
49. It is further held that on the basis of a claim of preferential right under section 13 of the Slum Act without any scheme for redevelopment being submitted by the owners of a property, the owners cannot be allowed to stall the redevelopment, after the property is validly acquired by the State Government under section 14 of the Slum Act. The ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 21 wp-1347.19(j).doc objects of enacting the Slum Act would be frustrated, if the slum rehabilitation areas are not redeveloped. The principles of law laid down by this Court in case of Nusli N. Wadia (supra) would squarely apply to the facts of this case. The petitioners have made an attempt to frustrate the object of the Slum Act by challenging the order passed by the authority validly passed after applying the principles of natural justice and more particularly when the respondents have taken steps pursuant to the order passed by the authority.
50. Division Bench of this Court in case of Deena Pramod Baldota (supra) after considering the several judgments of this Court including the judgments already referred to in the earlier paragraphs of this judgment and also in case of Indian Cork Mills Private Limited (supra) relied upon by the learned senior counsel for the petitioners has held that the decision of this Court in case of Indian Cork Mills Private Limited (supra) does not lay down any proposition that for want of notice to the owner, whatsoever may be the facts situation, sequitur would be quashing of the acquisition proceedings. There is no such absolute proposition of law laid down by Indian Cork Mills Pvt Ltd (supra).
51. This Court has held that before granting any relief in the writ jurisdiction, the facts and circumstances have to be considered, particularly whether the owner had bonafide interest to develop the property so as to benefit the slum dwellers or the owner was merely trying to create hurdles in achieving the ultimate object of rehabilitation of slum dwellers. If it is found that the owner was given opportunity to develop the property, was incapable of doing so or did not have any bonafide interest, then Writ Court will not stall the process of ::: Uploaded on - 09/01/2023 ::: Downloaded on - 10/01/2023 18:49:33 ::: ppn 22 wp-1347.19(j).doc rehabilitation of slum dwellers at the behest of such owner. In our view, the principles of law laid down by this Court applies to the facts of this case.
52. Notification under Section 4 of the Slum Act was issued as far back as in the year 1980-81. The order was passed by this Court under Section 3C on 7th April 2016. The order passed by the authority under Section 14(1) is passed on 9 th February 2017. The impugned notification was issued on 23rd May 2018. No case is thus made out for interference with the impugned order.
53. In so far as the judgment in case of Indian Cork Mills Private Limited (supra) relied upon by the learned senior counsel for the petitioners is concerned, the said judgment is clearly distinguishable on the facts and has been distinguished in series of the judgments referred to aforesaid. In our view, the judgment of this Court in case of Indian Cork Mills Private Limited (supra) thus would not advance the case of the petitioners.
54. In so far as the judgment in case of Anil Gulabdas Shah Vs. State of Maharashtra & Ors. (supra) relied upon by the learned senior counsel for the petitioners is concerned, the said judgment is clearly distinguishable on the facts. Be that as it may, in view of subsequent judgments referred to aforesaid, taking different view after distinguishing the said judgment in case of Indian Cork Mills Private Limited (supra), the said judgment would not assist the case of the petitioners.
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55. We accordingly pass the following order :-
(i) Writ petition is dismissed. Rule is discharged.
(ii) Ad-interim order passed by this Court to stand vacated.
(iii) No order as to costs.
(iv) Parties to act on the authenticated copy of this order.
M.M. SATHAYE, J. R.D. DHANUKA, J.
56. Learned counsel for the petitioners, at this stage, seeks continuation of the ad-interim order passed by this Court. Oral application for continuation of the ad-interim order is opposed by the learned counsel for the respondents. The application for continuation of the ad-interim order is rejected.
M.M. SATHAYE, J. R.D. DHANUKA, J.
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