Bombay High Court
Hansaben Bhavanji Shah vs State Of Maharashtra on 5 July, 2023
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2023:BHC-OS:6201-DB
18-WP-1066-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1066 OF 2023
WITH
INTERIM APPLICATION (L) NO. 7928 OF 2023
IN
WRIT PETITION (L) NO. 1066 OF 2023
Hansaben Bhavanji Shah & Anr. ...Petitioners/Applicant
Versus
State of Maharashtra & Ors. ...Respondents
....
Dr. Virendra Tulzapurkar a/w Mr. Simil Purohit a/w Mr. Bhavin Gada a/w
Mr. Dhawal Visawadia i/b Harakhchand & Co., for the Petitioners.
Mr. Saket Mone a/w Mr. Devansh Shah i/b Vidhi Partners for Respondent
No.2/MMRDA.
Mr. S. B. Gore, AGP a/w Mr. Manish Upadhye, AGP for State/Respondent
No.3.
CORAM : G. S. KULKARNI &
JITENDRA JAIN, JJ.
DATE : 5 JULY, 2023
P.C.
1. This petition under Article 226 of the Constitution of India is filed praying for the only substantive relief as prayed for in prayer clause (a). The prayers as made in the petition reads thus:
"(a) that this Hon'ble Court be pleased to issue a Writ of Mandamus and/or a writ in the nature of Mandamus or any other appropriate writ, order or direction thereby calling for the records from Respondents in respect of the Award dated 29 th January 2020 passed by Respondent No.3 in connection with the Properties and after going through the same, this Hon'ble Court be pleased to quash and set aside the Award dated 29 th January 2020 passed by Respondent No.3;
(b) that pending the hearing and final disposal of this Petition this Hon'ble Court be pleased to stay the effect, implementation, execution and operation of the Award dated 29 th January 2020 Kiran Kawre 1 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc passed by Respondent No.3 in connection with the Properties;
(c) For interim and ad-interim reliefs in terms of prayer clause
(b) above;
(d) for costs and
(e) for such other and further reliefs as the nature and circumstances of the case may require."
2. The petitioners, who are two in number claim to be the tenant/sub-tenants of shops No.5 & 6 in a building on land CTS No.577, 577/1 to 577/18 situated at the Junction of S. V. Road and J. P. Road, Andheri West, Mumbai - 400 058.
3. The building in question which houses the petitioners tenements is owned by one Mr. Ambalal Maganlal Patel. The land along with building was subject matter of acquisition by the respondent No.2/Mumbai Metropolitan Region Development Authority, (for short "the MMRDA"). The acquisition was for a public purpose namely for the Mumbai Metro Project i.e. for the Mumbai, Versova, Ghatkopar and Andheri Metro Railway.
4. It appears from the record that the MMRDA had taken steps to acquire various lands for such public purpose, initially, by taking recourse to settlement with the owners of the different lands, and wherever settlement could not be achieved, as in the present case, by issuance of a notification under Section 11 of the Kiran Kawre 2 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the 2013 Act").
5. Insofar as the land in question is concerned, a notification under Section 11 was issued by the Special Land Acquisition officer on 29 August 2018. On 5 September 2018, such notification was also published in the local newspapers as also affixed on the site as also on various noticeboards of the respondents authorities. Thereafter, on 24 January, 2019 and 13 January 2018 notifications under Section 19 (1) of the 2013 Act, were issued. Such notification(s) were published in the local newspapers on 13 February 2019 as also were published on the website as also were affixed on various notice boards of the respondent authorities as per the requirement of law.
6. On 4 November 2019 a public notice was issued inter alia calling for claims for compensation in accordance with the provisions of Section 21 (1), (2), (3) and (4) of the 2013 Act. After following the requisite procedure on 29 January 2020, the impugned award came to be declared as per the provisions of Section 23 of the 2013 Act, under which three buildings having 17 tenements namely in the Patil Building (subject building), Kiran Kawre 3 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc Castro Building and Mukund building, and the land thereunder, of the ownership of Mr. Ambalal Maganlal Patel were acquired.
7. It is stated in the reply-affidavit filed by the MMRDA that the landlord handed over possession of the lands to the MMRDA accepting the award amount of about Rs.10.5 crores. He also executed a possession receipt which was counter signed by the official of the MMRDA. It is stated that subsequent thereto on 20 May 2021 the MMRDA addressed letters to the occupants of the buildings that a hearing would be fixed to take a decision on the affected persons including the petitioners to be offered an option of either to rehabilitate such persons by providing alternate premises in four colonies available with the MMRDA or compensation to be offered as per the computation in the impugned award.
8. It appears that although the said notice was responded by the petitioners by their advocates letter dated 30 July 2021, the alternatives as offered to the petitioner by the MMRDA were not acceptable to the petitioners. They were neither inclined to accept the alternate premises as offered by the MMRDA or the compensation. On such backdrop the petitioners approached this Court by filing this petition on 11 January 2023. Kiran Kawre 4 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc
9. Dr. Tulzapurkar learned counsel for the petitioners in support of the prayer as made in the petition has limited submissions. His first submission is referring to a recent notice dated 6 March 2023 issued by the MMRDA to the petitioners, a copy of which is annexed at Exhibit-A to the Interim Application. Such letter was issued by the MMRDA after filing of the present petition. The contention as urged by Dr. Tulzapurkar referring to such letter is to the effect that the letter demonstrates that the original purpose of acquisition no more subsists and the land as acquired is sought to be used for the purpose other than original purpose. The reason being that by such notice the petitioners are called upon to vacate their premises being informed that as the land would be required for installing safety measures for movement of the fire engines. It is submitted that this cannot be the requirement of the Metro Project and for such reason the acquisition be declared to be illegal and the impugned award be set aside.
10. Dr. Tulzapurlkar would next submit that in fact, the petitioners had entered into correspondence with the MMRDA praying for various documents to be furnished to them in relation to the acquisition and the Metro Project, however, none of the Kiran Kawre 5 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc documents including public notices were furnished to the petitioners. It is hence submitted that also for such reason the present petition is required to be entertained and reliefs as prayed for be granted.
11. On the other hand Mr. Mone, learned counsel for the MMRDA has made submissions drawing our attention to the reply- affidavit filed on behalf of the MMRDA. Mr. Mone's primary objection is that the petition is barred by delay and laches. He submits that the memo of petition does offer any explanation to explain such long delay of three years in filing the present petition. He would next submit that the petition also suffer for non-joinder of necessary parties. In such context it is submitted that the petitioners have become wiser after reply affidavit was filed by the MMRDA, inasmuch as, now an Interim Application has been filed to add respondents including the landlord, as party respondents to the petition. Mr. Mone would next submit that the petitioners contention that there is change in the public purpose, is untenable, inasmuch as the MMRDA's requirement of the land in question for the purpose for which it was acquired persists and/or whatever works which are sought to be undertaken by removing the buildings are works which are completely within the scope of Kiran Kawre 6 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc the metro project for which the lands were acquired. In supporting such submission, Mr. Mone has drawn our attention to the relevant paragraphs in the reply affidavit to submit that there is no change whatsoever in the purpose of acquisition.
12. Mr. Mone has next submitted that infact a similar issue was raised with the MMRDA by one of the tenants Mr. Hussan Ali Kasam Ali who had occupied residential and non-residential premises in a building adjoining the Patil building, on which a hearing was granted to such person and a decision was taken rejecting his contention. It is submitted that such decision was not challenged by said person. It is hence Mr. Mone's submission that now the petitioners cannot come forward before this Court, at such belated stage when the acquisition proceedings have attained finality, by raising contentions which are untenable in assailing the land acquisition award. He would accordingly submit that the petition be summarily dismissed.
13. We have heard learned counsel for the parties, we have also perused the record.
14. At the outset, we may observe that there is much substance in contention as urged on behalf of the MMRDA that the petition is hit by the doctrine of delay and laches. We have perused the Kiran Kawre 7 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc memo of the petition, there is not a whisper nay any explanation on the inordinate delay on the part of the petitioners in approaching this Court to challenge the impugned award dated 29 January 2020, by filing this petition in January 2023 after a lapse of almost 3 years from the passing of the impugned award. In such context Dr. Tulzapurkar making a reference to the recent notice dated 6 March 2023 would submit that the delay ought not to be considered as fatal, inasmuch as now it has come to the notice of the petitioners, that the purpose of the acquisition itself is for security and/or for movement of the fire engines and not actually for the purpose of Metro line-1 i.e. Versova, Andheri and Ghatkopar, Metro Project. It is hence submitted that for such reason it be considered that there are no delay and laches in filing the present proceedings. We do not accept Dr. Tulzapurkar's submission that the delay in the present proceedings is not fatal, for more that one reason. Firstly, the petitioners are mere tenants/ sub-tenants of the small portion of the premises subject matter of acquisition, who at no point of time raised any objection responding to the land acquisition notices issued by the MMRDA as fairly conceded by Dr. Tulzapurkar. The petitioners cannot be sitting on the fence. Dr. Tulzapurkar was unable to satisfy the Court on any objection being raised by the petitioners to either Kiran Kawre 8 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc Section 11 notices or any further notices in relation to the acquisition in question, till the passing of the award. Thus, by following the lawful procedure, the MMRDA has published the impugned award. Secondly, when the basic notifications issued for acquisition of the land were not challenged by the petitioners and/ or the petitioners had acquiesced in such notifications and notices, leading to the acquisition in question, it would not be open for the petitioners to approach the Court and belatedly and blanketly challenge the land acquisition award, when the different lands in the scheme of the acquisition of which the land in question is a part are already is being utilised for the metro work of which substantial work is already completed.
15. It is also not the case that the petitioners interest is not taken care of in the impugned award. Not only adequate provision for the petitioners to be entitled to compensation has been made in the award, but also alternate premises have already been offered by the MMRDA to the petitioners. Thus, the petitioners cannot have any grievance, that in any manner, the petitioners were kept out of acquisition proceedings qua the limited interest they have in respect of their shop premises. Thus, the intention of the petitioners to file this petition to assail the entire award and that Kiran Kawre 9 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc too on the weak contentions as argued by Dr. Tulzapurkar appear to be quite intrigue.
16. Insofar as Dr. Tulzapurkar's contention that the original purpose of the acquisition stands modified, referring to the recent notice dated 6 March 2023, in our opinion, such contention is wholly untenable. We have perused the notice dated 6 March 2023 issued by the MMRDA. Firstly, such notice is issued after filing of the petition, secondly, it is a notice calling upon the occupants to vacate the premises so as to make way for the facilities being provided relevant to the metro rail. It is surprising that the petitioners on the basis of such notice contend that the purpose of the acquisition has changed. There is no material brought to our notice either on record or in the course of the arguments that the purpose for which such notice is issued is not connected with anything to do with the project in question. Also it is not brought to our notice much less on any materials that the acquisition itself is sought to be in any manner dropped and/or the land is not required for the purpose of the Metro Project. Mr. Mone would infact submit that the land as acquired for the purpose of Metro Project, the same is now immediatley required for such project, and as the occupants of the building are not Kiran Kawre 10 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc vacating their tenements, notices were required to be issued calling upon them to vacate the premises. Thus, the contention of the petitioners that the purpose of the acquisition is being changed, is totally unacceptable.
17. In any event the project in question is a large public project, such project has several requirements, the petitioners cannot pinpoint or assert that a particular requirement is not the exact requirement of the Metro Project. It is for the MMRDA to decide as to in what manner the acquired land is required to be utilised for the public project which has already stood vested in it. Thus, any such contention questioning the public purpose falling from persons like petitioners is unacceptable, that too in challenging the award. It is a settled principal of law that once the land is acquired and the same stands vested with the acquiring authority, it is for the acquiring authority to use the same for the public purpose. The public purpose in any case is not different from the original purpose. We may also observe that only two petitioners are before us, the other tenants appears to have accepted the award.
18. In the light of the above observations, looked from any angle, we cannot entertain this petition challenging the land acquisition award rendered as far back as on 20 January 2020. Kiran Kawre 11 of 12 ::: Uploaded on - 07/07/2023 ::: Downloaded on - 08/07/2023 07:32:17 ::: 18-WP-1066-2023.doc The petition is accordingly summarily rejected. No costs.
19. Interim application would not survive, it stands disposed of.
20. At this stage Dr. Tulzapurkar would submit that the status qua order which was passed on 14 March 2023, be continued for a period of 4 weeks. Considering the facts and circumstances of the case, the request is rejected.
[JITENDRA JAIN, J.] [G.S. KULKARNI, J.]
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