Bombay High Court
H.I.M.S. Botawala Charities And Anr vs State Of Maharashtra And 5 Ors on 31 August, 2021
Bench: Ujjal Bhuyan, Madhav J. Jamdar
Digitally signed
MINAL by MINAL
SANDIP PARAB
SANDIP Date:
PARAB 2021.08.31
15:06:40 +0530
WP1366_09.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1366 OF 2009
H.I.M.S. Botawala Charities and another ... Petitioners
Vs.
State of Maharashtra and others ... Respondents
WITH
INTERIM APPLICATION NO.799 OF 2020
IN
WRIT PETITION NO.1366 OF 2009
Sarah Housing Development Pvt. Ltd. ... Applicant
IN THE MATTER BETWEEN
H.I.M.S. Botawala Charities and another ... Petitioners
Vs.
State of Maharashtra and others ... Respondents
Mr. Sharan Jagtiani, Senior Advocate a/w. Ms. Surabhi Agarwal,
Mr.Kaizer Merchant and Ms. Nidhi Salian i/b. Apex Law Partners for
Petitioners.
Mr. Himanshu B. Takke, AGP for Respondent Nos.1, 2 and 7-State.
Mr. P. G. Lad a/w. Ms. Aparna Kalathil and Ms. Priyanka Naik for
Respondent Nos.3 to 6-MHADA.
CORAM : UJJAL BHUYAN &
MADHAV J. JAMDAR, JJ.
Reserved on : JULY 28, 2021
Pronounced on : AUGUST 31, 2021
JUDGMENT AND ORDER : (Per Ujjal Bhuyan, J.)
Heard Mr. Jagtiani, learned senior counsel for the petitioners; Mr. Takke, learned AGP for respondent Nos.1, 2 and 7-State; and Mr. Lad, learned counsel for respondent Nos.3 to 6-MHADA.
2. By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of order dated 21.12.2006 issued by the 1/42 WP1366_09.doc Special Land Acquisition Officer, Maharashtra Housing and Area Development Authority, Mumbai i.e., respondent No.6 and further seeks a direction to the respondents for release of the entire property of the petitioners from acquisition.
3. Be it stated that vide order dated 21.12.2006, respondent No.6 in exercise of powers conferred by sub-section (5) of section 93 of the Maharashtra Housing and Area Development Act, 1976 (briefly "the MHADA Act" hereinafter) sanctioned the acquisition proposal forwarded by the Mumbai Building Repairs and Reconstruction Board for compulsory acquisition of the land described in the schedule thereto.
4. Before adverting to the impugnment, it would be apposite to briefly set out the relevant facts as pleaded as well as the orders passed by this Court from time to time in the present writ proceeding.
4.1. Petitioner No.1 is a public charitable trust duly registered under the erstwhile Bombay Public Trusts Act, 1950, having its office at Mumbai. Petitioner No.2 is a private limited company incorporated under the provisions of the Companies Act, 1956 and having its office at Mumbai.
4.2. Sometime in the year 1914, petitioner No.1 by a registered deed of conveyance had purchased the properties bearing C.S.Nos.641 and 642 of Mazgaon Division admeasuring near about 4721.60 sq.mtrs. In that year itself, petitioner No.1 constructed certain buildings on the said property and further constructed three other buildings on the said land in the year 1922. Be it stated that all these structures comprised of ground plus two floors.
4.3. Petitioners have stated that altogether six structures were constructed on the said plot of land having municipal house Nos.289/299, 299A, 299B, 299C, 299D and 299E. All the buildings 2/42 WP1366_09.doc together are known as 'Botawala Chawl' having the address at R. Bhogale Marg, Mazgaon, Mumbai (briefly referred to hereinafter as the "petitioners' property"). According to the petitioners there are about 423 occupants residing in the six buildings (petitioners have furnished a list of such occupants / tenants which has been annexed to the writ petition).
4.4. Since all the buildings on the petitioners' land were constructed prior to 01.04.1940, Bombay Municipal Corporation (BMC) categorized the said buildings as 'A-cess category' and issued corresponding certificates to that effect.
4.5. On 19.08.2000, Mumbai Building Repairs and Reconstruction Board (briefly "the Board" or alternatively "respondent No.5"
hereinafter) issued certificate in respect of building No.299A under section 88(3) of the MHADA Act inter alia certifying that the said building was not capable of being repaired to render it fit for habitation within reasonable expenses and therefore the said building was not considered for repairs under the MHADA Act. Similar certificate dated 20.06.2001 was issued by respondent No.5 in respect of building No.299B. This was followed by another certificate dated 02.07.2003 issued by respondent No.5 under section 88(3) of the MHADA Act regarding building No.289/299.
4.6. The 423 occupants residing in the six buildings on the petitioners' property formed a co-operative housing society and requested petitioner No.1 to develop the property under Development Control Regulation (DCR) No.33(7) of the Development Control Regulations for Greater Mumbai, 1991. It is stated that 319 occupants out of 423 occupants gave written consent in favour of petitioner No.1 for development of the said property which is more than 70% of the total number of occupants, thus fulfilling one of the essential requirements of that provision.
4.7. Despite the aforesaid development, respondent Nos.3 to 5 decided 3/42 WP1366_09.doc to acquire the petitioners' property. In this connection, respondent No.6 issued show cause notice dated 25.05.2005 calling upon the persons interested to show cause as to why the said properties should not be acquired under the provisions of MHADA Act. Petitioner No.1 filed objection before respondent No.6 on 27.06.2005. It was stated that the chawls were very much repairable and strong enough to sustain far more time which was supported by a certificate of the structural engineer. It was pointed out that the tenants were opposed to the redevelopment scheme of Maharashtra Housing and Area Development Authority (for short "MHADA" hereinafter). It was further pointed out that in case tenants were interested, petitioner No.1 could carry out the repairs or reconstruction. Petitioner No.1 also stated that the list accompanying the show cause notice contained only a part of the total number of residents being 423. While objecting to the acquisition proceedings, petitioner No.1 called upon respondent No.6 to afford a reasonable opportunity of hearing and thereafter to drop the acquisition proceedings.
4.8. In the meanwhile petitioner No.1 invited tenders for sale of the said property. Offer made by petitioner No.2 was the highest and was accordingly accepted. Petitioner No.1 agreed to sell the said property to petitioner No.2 on 'as is where is basis'. In this connection, on an application filed by petitioner No.1 the concerned Charity Commissioner passed an order dated 31.05.2007 according sanction / allowing petitioner No.1 to sell the said property to petitioner No.2 for an amount of Rs.1,30,00,000.00. Following the same and upon payment of the aforesaid amount by petitioner No.2 together with the amount covering stamp duty and registration charges, petitioner No.1 executed deed of conveyance dated 15.12.2007 transferring the right, title and interest in respect of the said property in favour of petitioner No.2.
4.9. Since more than 70% of the occupants had given consent for redevelopment through petitioner No.1, petitioners submitted proposal on 29.03.2006 before respondent Nos.3 to 5 for issuance of no objection 4/42 WP1366_09.doc certificate (NOC) for development of the entire property under DCR 33(7). At the time of filing the writ petition, the said proposal of the petitioners was stated to be pending consideration before respondent Nos.3 to 5.
4.10. It is stated that respondent No.6 vide letter dated 18.11.2006 had informed respondent Nos.3 to 5 that more than 70% of the occupants were objecting to the redevelopment through MHADA. He accordingly requested the said respondents to drop the acquisition proceedings.
4.11. However, contrary to the content of the above letter respondent No.6 issued the impugned order dated 21.12.2006 acquiring a part of the petitioners' property under section 93(5) of the MHADA Act. Subsequently, the said order was published in the Government gazette.
4.12. According to the petitioners, by the impugned order dated 21.12.2006 respondent No.6 had not acquired the entire petitioners' property; only the land and three out of the six buildings i.e., building Nos.289/299, 299A and 299B were acquired.
4.13. Aggrieved by the issuance of the impugned order dated 21.12.2006, petitioners instituted S.C.Suit No.881 of 2007 in the City Civil Court, Bombay for a declaration that the order dated 21.12.2006 was illegal, bad in law and, therefore, should be set aside and quashed.
4.14. It may be mentioned that respondent No.5 had time and again addressed letters to respondent No.2 pointing out that the acquisition order was defective in as much as three out of the six buildings on the acquired land were not acquired. Such letters were issued on 08.03.2007, 01.06.2007 and 20.10.2007 requesting respondent No.2 to issue corrigendum. Again on 28.11.2007 respondent No.5 wrote to respondent No.2 stating that proper notice was required to be given to all the tenants for acquisition which could not be done as only three out of the six 5/42 WP1366_09.doc buildings were acquired. Therefore corrigendum was required to be issued.
4.15. It may be mentioned that petitioners under legal advice that challenge to the acquisition proceedings may not be maintainable in the City Civil Court sought leave to withdraw the suit. City Civil Court vide order dated 23.11.2007 was pleased to grant leave to the petitioners to withdraw S.C.Suit No.881 of 2007 and to file fresh proceedings subject to limitation.
4.16. Thereafter, the present writ petition came to be filed seeking the reliefs as indicated above.
5. On behalf of respondent Nos.3 to 5, a reply affidavit was filed by Mr. Pralhad Pandurang Mahishi, Deputy Engineer on 26.03.2010. Stand taken in the affidavit is that there is delay and laches in filing the writ petition. The suit was withdrawn by the petitioners on 23.11.2007 with liberty to file a fresh suit subject to limitation. Instead of filing a fresh suit, petitioners filed the present writ petition belatedly on 06.07.2009. Reason given for the delay is not at all convincing.
5.1. It is stated that the lands bearing C.S.Nos.641 and 642 were acquired by MHADA on 21.12.2006 by virtue of the impugned notification issued under section 93(5) of the MHADA Act. On and from the date of publication of the said notification in the official gazette the said lands stood vested absolutely with respondent No.3 free from all encumbrances. Under DCR 33(9), respondent Nos.3 to 5 are empowered to carry out reconstruction of cessed buildings.
5.2. Reference has been made to a decision of this Court reported in 2002 (5) BCR 653 to the effect that redevelopment of the acquired property be carried out by MHADA alone. When the matter was carried to the Supreme Court, State Government filed an affidavit requesting 6/42 WP1366_09.doc that appropriate guidelines may be laid down for the purpose of implementation of redevelopment scheme by availing floor space index (FSI) in accordance with DCR 33(9). Supreme Court vide order dated 07.03.2003 approved the scheme in respect of redevelopment, setting aside the order passed by this Court.
5.3. Pending Government's decision to frame guidelines MHADA in principle issued letters of intent in respect of acquired properties for the purpose of undertaking redevelopment in joint venture. Petitioners too had applied for redevelopment in joint venture with MHADA for redevelopment of the property. In this connection, letter of intent came to be issued to the petitioners on 10.08.2007.
5.4. However, it is stated that DCR 33(9) was amended with effect from 02.03.2009. Following the same petitioners made an application to the High Power Committee constituted thereunder for obtaining NOC for redevelopment of the property. It is stated that Housing Department had approved the said proposal in principle and thereafter forwarded the same to the Urban Development Department.
5.5. According to the deponent land measuring about 4000 sq.mtrs. acquired under the MHADA Act empowered respondent No.3 to carry out redevelopment under the amended DCR 33(9) in joint venture. It is contended that on and from 21.12.2006, the acquired land and buildings stood vested with respondent Nos.3 to 5. Notwithstanding the same, petitioner No.1 entered into agreement for sale of the acquired land with petitioner No.2. Post acquisition such agreement for sale is void ab initio.
5.6. On or about 20.06.2009 petitioners had submitted proposal to respondent No.5 through their architect for redevelopment of the said plot under the amended DCR 33(9). Said proposal was also earlier submitted by the petitioners pursuant to notice issued by the 7/42 WP1366_09.doc Government of Maharashtra on 19.05.2009 proposing to amend DCR 33(7) whereby the acquired properties were permitted to be redeveloped in joint venture with MHADA.
5.7. In the circumstances, it is contended that petitioners had acquiesced to the acquisition of the land covered by C.S.Nos.641 and
642. Therefore, they are estopped from challenging the legality and validity of the acquisition proceedings.
5.8. Respondents have further contended that the acquisition made is legal and valid. It is for a public purpose. Question of setting aside the acquisition and restoring the acquired land and buildings back to the petitioners does not arise.
6. This Court by order dated 19.03.2010 directed the parties to maintain status-quo. Thereafter vide order dated 19.07.2010 as corrected on 02.08.2010 this Court admitted the writ petition for hearing by issuing Rule. Petitioners were permitted to carry on joint development of the property as per sanction given by the High Power Committee under DCR 33(9) subject to the approval that might be granted by the State Government and further subject to the condition that within a period of eight weeks from the approval of the Government petitioners would deposit in the Court the amount payable as per DCR 33(9). This Court directed that on payment being made by the petitioners, the same should be kept in fixed deposit by the Registry in a nationalized bank to the credit of the petition. This Court also directed that upon grant of approval by the government within a period of two weeks, MHADA and / or the Competent Authority should inform the petitioners about the amount of premium to be paid whereafter petitioners should deposit the same in the Court within a period of six weeks thereafter.
6.1. On 02.11.2012, learned AGP informed the Court that Government of Maharashtra had approved the proposal on 06.01.2012 whereafter a 8/42 WP1366_09.doc letter was addressed by MHADA to the architect of the petitioners on 19.04.2012 calling upon the petitioners to deposit an amount of Rs.3,96,61,760.00. When learned AGP raised the objection that the aforesaid amount was required to be deposited by the petitioners within six weeks of communication which period had expired, the order records that learned counsel for the petitioners had stated that the aforesaid amount would be deposited within three weeks with the observation that liability of the petitioners to pay interest, if any, for the delayed payment would be decided at the time of hearing.
6.2. On 23.11.2012, Court was informed that petitioners had already deposited an amount of Rs.2,00,00,000.00 out of Rs.3,96,61,760.00 within time. Petitioners were given liberty to deposit the remaining amount within two weeks. It was clarified that such deposits were without prejudice to the rights and contentions of the respondents.
6.3. Petitioners informed this Court on 14.12.2012 that the balance amount of Rs.1,96,61,760.00 was already deposited on 07.12.2012.
6.4. By order dated 13.08.2019 corrected on 03.09.2019, petitioner No.2 was permitted to withdraw a sum of Rs.2,00,00,000.00 within two weeks. Petitioner No.2 was further given liberty to withdraw the balance amount of Rs.1,96,61,760.00 after construction of both the rehabilitation buildings. It was clarified that the withdrawals would be subject to written undertaking of petitioner No.2 that in the event the Court so orders, petitioner No.2 would re-deposit the withdrawn amount.
6.5. On an interim application filed by the State objecting to the permission granted to the petitioners for withdrawal of the deposited amount, learned counsel for the petitioners informed the Court on 10.12.2020 that petitioners would redeposit Rs.2,00,00,000.00 in two installments; first installment of Rs.50,00,000.00 on or before 14.12.2020 and second installment of Rs.1,50,00,000.00 within six 9/42 WP1366_09.doc weeks. This was accepted by the Court and petitioners were permitted to redeposit the withdrawn amount. On the aforesaid basis, the interim application filed by the State was disposed of.
7. Petitioner No.2 filed Interim Application No.799 of 2020 seeking a declaration that the impugned order dated 21.12.2006 is bad in law and, therefore, should be set aside and quashed. Further prayer made is for a direction to the respondents to release petitioners' property from acquisition.
7.1. It is stated that after filing of the writ petition and after amendment of the same, additional relief was sought for seeking approval for redevelopment of the petitioners' property under the provisions of DCR 33(9). As the proposal submitted by the petitioners was accepted by the High Power Committee in principle in its meeting held on 28.07.2009, this Court upon consideration of the provisions of DCR 33(9) passed order dated 19.07.2010 (corrected by order dated 02.08.2010) permitting the petitioners to undertake redevelopment of the property in joint venture with MHADA on deposit of the amount to be determined by MHADA. When MHADA determined the amount to be paid by the petitioners at Rs.3,96,61,760.00, the same was deposited by the petitioners before this Court in two tranches on 22.11.2012 and 07.12.2012. The amount so deposited was invested in fixed deposit by the Prothonotary and Senior Master of the Court.
7.2. Thereafter petitioners pursued the matter of redevelopment with the High Power Committee under DCR 33(9). High Power Committee sanctioned the scheme of redevelopment following which Municipal Corporation of Greater Mumbai (MCGM) issued letter of intent dated 14.01.2013 in favour of the applicant / petitioner No.2. In terms of condition No.35 of the said letter of intent, a joint venture agreement dated 10.03.2014 was executed between petitioner No.2 and Mumbai Building Repairs and Reconstruction Board, already referred to as the 10/42 WP1366_09.doc "Board" hereinbefore. This was followed by scrutiny and verification of tenants / occupants whereafter the list of certified / verified tenants was published in newspaper on 19.06.2015. Following scrutiny and verification of the list of tenants / occupants, Board issued NOC for redevelopment of the petitioners' property under DCR 33(9) on 22.09.2015. Upon receipt of such NOC, petitioner No.2 submitted plans for approval before the MCGM which granted intimation of disapproval dated 02.01.2017 approving the plans submitted by petitioner No.2 whereafter petitioner No.2 received first commencement certificate on 29.04.2017.
7.3. It is stated that in view of change in the policy under DCR 33(9), Board and petitioner No.2 executed supplementary agreement on 24.07.2017 whereby certain terms of the original agreement were modified. In view of above, petitioner No.2 applied for modification of the NOC dated 22.09.2015 whereafter the Board issued revised NOC dated 13.06.2018.
7.4. According to petitioner No.2 construction of the rehabilitation buildings had already commenced. All the 422 (sic) tenants have been re-accommodated by the petitioners at their cost in temporary transit camps or have been provided transit rents. The transit camps have been taken on lease from MHADA in New Hind Mills Compound, Cotton Greens, Mumbai. Construction activity is going on in full swing in the petitioners' property. Seven slabs of car parking had been constructed; further twenty slabs of the rehabilitation wing and twelve slabs of the sale wing were constructed at the time of filing the interim application. Petitioners had executed nearly 301 permanent alternate accommodation agreements with tenants / occupants. Execution of permanent alternate accommodation agreements with the remaining tenants / occupants was in progress.
7.5. Thus petitioners have contended that the objective of the 11/42 WP1366_09.doc respondents of providing alternate accommodation to the tenants / occupants on the petitioners' property has been fulfilled. It is in the above circumstances that the interim application has been filed seeking the reliefs as indicated above.
8. Respondent Nos.1 and 2 filed reply affidavit on 08.10.2020 opposing the said interim application. Respondent Nos.1 and 2 have stated that petitioners cannot approbate and reprobate at the same time. Petitioners cannot be permitted to derive benefits and incentives under DCR 33(9) which is applicable only in respect of acquired properties under the MHADA Act admeasuring more than 4000 sq.mtrs. and at the same time continuing the challenge to the acquisition proceedings.
9. Respondent Nos.3, 4 and 5 in their reply affidavit to the interim application filed on 13.03.2020 have stated that the reason for petitioners' withdrawing the suit and filing the writ petition was the change in DCR 33(9) as per which under the urban renewal scheme cluster redevelopment would be applicable to properties admeasuring more than 4000 sq.mtrs. It is stated that attention of the Court was drawn to letter dated 20.06.2009 of MHADA which recorded that it would be in the interest of all the parties to carry out redevelopment on petitioners' property jointly under DCR 33(9). By order dated 19.07.2010 as corrected on 02.08.2010 this Court permitted the petitioners to undertake redevelopment in joint venture with MHADA on deposit of the amount determined by MHADA in this Court. Rs.3,96,61,440.00 was the amount quantified by respondent No.3 and intimated to the petitioners which amount was thereafter deposited by the petitioners before this Court.
9.1. The said respondents thereafter referred to the developments leading to issuance of letter of intent and execution of joint venture agreement which was followed by issuance of NOC by respondent No.3 for redevelopment of petitioners' property under DCR 33(9). Upon 12/42 WP1366_09.doc modification in the scheme of redevelopment in view of amendment in DCR 33(9) a supplementary agreement was executed which was followed by issuance of revised NOC by respondent No.3.
9.2. They have admitted that petitioners have taken on lease from respondent No.3 rooms at New Hind Mills Compound for the purpose of transit accommodation of the tenants / occupants. All the 422 (sic) tenants have been either provided alternate accommodation or are being paid rent in lieu thereof. It is also acknowledged that none of the tenants / occupants have complained against the petitioners regarding transit accommodation or rent.
9.3. It is also stated that during the course of the acquisition proceedings and in the course of the events subsequent thereto respondent No.3 had made correspondence with respondent No.6 to issue corrigendum reducing the land area mentioned in the initial notice as well as in the impugned order dated 21.12.2006 from 4721.60 sq.mtrs. to 2140 sq.mtrs., covering only the three acquired buildings and the land thereunder. However, no steps were taken by respondent No.6 in this regard.
9.4. According to respondent Nos.3, 4 and 5, objective of the acquisition proceedings carried out under sections 92 and 93 of the MHADA Act was to acquire the property for the purpose of redevelopment and re-accommodation of the tenants. However before possession of the petitioners' property could be taken over by respondent No.3 for redevelopment, petitioners submitted a scheme to the High Power Committee to undertake redevelopment under DCR 33(9). This Court also permitted redevelopment in joint venture between petitioners and respondent No.3. Thus the objective and purpose of redevelopment and obligations of MHADA and Board on account of redevelopment have been taken over by petitioners. It is stated that MHADA / Board would have had to provide transit accommodation to 422 (sic) tenants and also would have had to construct buildings at their cost for re-
13/42WP1366_09.doc accommodating 422 (sic) tenants in permanent alternate accommodation on ownership basis. The entire responsibility has now been fulfilled by the petitioners.
9.5. Finally, respondent Nos.3, 4 and 5 have stated that construction activity on the petitioners' property is going on in full swing. Petitioners have not defaulted on any conditions of redevelopment.
10. Respondent Nos.1 and 2 have also filed reply affidavit to the writ petition very recently on 18.02.2021 through Ramchandra K. Dhanawade, Deputy Secretary to Government of Maharashtra in the Housing Department. At the outset it is stated that the writ petition involves disputed questions of fact and contractual obligations of the petitioners. Therefore, this Court may not entertain the writ petition under Article 226 of the Constitution of India. It is further stated that the reliefs sought for in the writ petition have been rendered infructuous in as much as petitioners had sought to redevelop the property under DCR 33(7) vide proposal dated 29.03.2006. However, they undertook the redevelopment under DCR 33(9). Thus it is contended that petitioners have acquiesced to the acquisition of the property and taken benefits under DCR 33(9) which pertains to the acquired property. In view of such acquiescence, petitioners are estopped from pursuing the writ petition. In any view of the matter since approval sought for by the petitioners for redevelopment of the property has been granted by the Government, the writ petition does not survive.
10.1. It is stated that out of the six buildings standing on the petitioners' property, building Nos.289/299, 299A and 299B were declared as being beyond economic repairs under section 88(3)(a) of the MHADA Act. Building Nos.299A and 299B were demolished by respondent No.5. Tenants / occupants of the said two buildings were shifted by respondent No.5 to transit camps. Building No.289/299 is adjacent to Rambhau Bhogale Marg. Access to the remaining five buildings was through 14/42 WP1366_09.doc building No.289/299. Accordingly, respondent No.5 prepared composite layout of all the six buildings which was approved by the MCGM on 02.09.2002. The composite redevelopment scheme would not be possible without including building Nos.299C, 299D and 299E in the composite redevelopment scheme.
10.2. On 21.12.2006, respondent No.6 issued notification under section 93(5) of the MHADA Act acquiring petitioners' property. Upon publication of the said notification petitioners' property stood vested in respondent No.5.
10.3. Government of Maharashtra in the Urban Development Department amended DCR 33(9) on 02.03.2009 for implementing the urban renewal scheme. It is stated that for implementation of such scheme, minimum plot area should be 4000 sq.mtrs.
10.4. Petitioners submitted proposal to the Government for cluster redevelopment under amended DCR 33(9) on 12.06.2009. Since the petitioners' land stood vested with respondent No.5 upon acquisition on 21.12.2006, petitioners could undertake cluster redevelopment under urban renewal scheme only in joint venture with respondent No.3 in terms of DCR 33(9). Further, the area of petitioners' acquired property was 4721.60 sq.mtrs. It is thus contended that petitioners' undertook redevelopment scheme under DCR 33(9) in respect of the petitioners' property to obtain the benefits thereunder.
10.5. On 28.07.2009, the High Power Committee approved petitioners' proposal under DCR 33(9).
10.6. Respondent Nos.1 and 2 have contended that right from the beginning petitioners were fully aware of the fact that redevelopment scheme under DCR 33(9) was undertaken by them on the petitioners' property since acquired and thereafter belonging to respondent No.5 in 15/42 WP1366_09.doc joint venture.
10.7. Reference has been made to letter of intent dated 04.07.2013 issued by the MCGM to petitioner No.2 in respect of the joint venture cluster redevelopment upon grant of approval by the Government. Clause 2 of the said letter of intent clearly stated that owner of the property is MHADA and hence land premium or built up area to be surrendered in lieu of land cost would be as decided by MHADA, besides reimbursing expenditure incurred by the Board towards structural repairs, demolition etc. before issue of commencement certificate.
10.8. Petitioners undertook redevelopment under DCR 33(9) without any demur qua clause 2 of the letter of intent as well as knowing fully well that such redevelopment was possible in joint venture only upon acquisition and thus there was acknowledgment that the property stood vested with respondent No.5. This position became more clear upon amendment of DCR 33(9) which made it clear that redevelopment was to be undertaken only upon acquired lands. Petitioners having accepted such condition and having bound themselves with the same, now stand estopped from challenging the acquisition. Petitioners by their own conduct have acquiesced to the acquisition of the land by undertaking redevelopment under DCR 33(9).
10.9. Answering respondents have denied that there were flaws in the acquisition process. However, while not admitting any such flaws as alleged it is contended that even if flaws were there in the acquisition process those would be deemed to have been waived by the petitioners by undertaking redevelopment scheme under DCR 33(9). Prior to acquisition, hearing notices were issued to the petitioners. Those who had attended the hearing were personally heard. Thus, due process was followed. Therefore, impugned notification dated 21.12.2006 is legal and valid.
16/42WP1366_09.doc 10.10. It is contended that merely because proposal was submitted by the petitioners for redevelopment under DCR 33(7), respondent No.5 was not precluded from acquiring the petitioners' property under section 93(5). However, the said grievance of the petitioners no longer survives as petitioners have been permitted to undertake redevelopment under DCR 33(9). MHADA Act does not contemplate obtaining consent of tenants / occupants for respondent No.5 to acquire property.
10.11. In the above context, respondent Nos.1 and 2 submitted that no case is made out by the petitioners for this Court to exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India. Accordingly, the writ petition is liable to be dismissed with cost.
11. Mr. Sharan Jagtiani, learned senior counsel for the petitioners at the outset submits that the impugned order dated 21.12.2006 suffers from fundamental errors rendering the same null and void. He submits that the total land area of petitioners' property would be approximately 4721.60 sq.mtrs. with six structures standing thereon. However, only three of the structures bearing Nos.289/299, 299A and 299B were acquired along with the land leaving out the other three structures bearing municipal house Nos.299C, 299D and 299E. In other words, though the land was acquired, all the structures standing thereon were not acquired. Resultantly, the tenants / occupants of the remaining three buildings were not given notice and were not heard prior to acquisition. This was brought to the notice of MHADA by its various authorities including respondent No.6 requesting MHADA to issue necessary corrigendum to rectify the defect in the acquisition process. But that was not done. For lack of completeness as well as for denial of opportunity of hearing to the tenants / occupants of the three left out structures, the acquisition process stood vitiated. Thus there is clear violation of the principles of natural justice and fair procedure. Therefore, the impugned order cannot be sustained and should be declared as void.
17/42WP1366_09.doc 11.1. Mr. Jagtiani's further contention is that more than 70% of the tenants / occupants of the six structures had objected to development through MHADA. They wanted petitioners to develop the property. Initially petitioners had submitted proposal prior to issuance of the impugned order before respondent Nos.3 to 5 seeking permission for development of the property under DCR 33(7). He submits that when DCR 33(9) was amended, petitioners submitted proposal to respondent No.5 for redevelopment under the amended DCR 33(9).
11.2. Mr. Jagtiani, learned senior counsel has referred to order of this Court dated 19.07.2010 as corrected on 02.08.2010 and submits that after admission of the writ petition, petitioners were permitted to carry out joint development as per sanction given by High Power Committee under DCR 33(9). He submits that after approval was granted by the State Government and the amount of premium to be deposited by the petitioners was quantified, petitioners deposited total amount of Rs.3,96,61,760.00 in two tranches on 22.11.2012 and 07.12.2012. After receipt of NOC and letter of intent from the competent authorities, petitioners commenced construction of the rehabilitation buildings. Regarding the status of construction as on 22.07.2021, he submits that nine commercial tenants of ground floor have already been handed over possession; in so far 'A' Wing (rehabilitation building) of 35 floors is concerned, construction of all 35 floors is complete. Petitioners are in a position to handover possession of the completed floors as soon as it receives occupancy certificate. Regarding 'B' Wing (rehabilitation building), out of 35 floors, slab cast has been done upto 8 th floor; as regards the 'C' Wing (sale wing) is concerned, out of total 45 floors already 28 floors have been completed. He submits that construction is in progress on day to day basis and petitioners would be in a position to complete construction shortly.
11.3. In the circumstances, learned counsel for the petitioners submits 18/42 WP1366_09.doc that having regard to the subsequent developments leading to rehabilitation of the tenants / occupants, the very purpose and object behind acquisition of the petitioners' property vide impugned order dated 21.12.2006 has been achieved. Therefore, what remains is only the formality of completion of construction by the petitioners. He submits that the impugned order dated 21.12.2006 having lost its force and effect should be declared as redundant and consequently should be set aside.
11.4. Learned senior counsel for the petitioners have filed a compilation of case laws to support his submissions. In so far acquisition under MHADA Act is concerned, he has placed reliance on a Division Bench decision of this Court in Bhalchandra Datey Vs. State of Maharashtra, 2012 (2) Mh.L.J. 543. Relying upon this judgment he submits that in the said case Court had set aside the acquisition of the property after the Court found that the tenants for whose benefit the property was acquired did not want the acquisition. He further submits that this Court observed that no useful purpose would be served by continuing the property under acquisition because the property was being acquired basically for the benefit of the tenants who did not want such acquisition or that the purpose for which acquisition was sought for had been achieved otherwise.
11.5. In support of his submissions that the impugned acquisition proceedings suffers from violation of the principles of natural justice and that principles of natural justice would have to be followed in such decision making, he has placed reliance on the decision of the Supreme Court in Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 and a Division Bench decision of this Court in Harakchand Misrimal Solanki Vs. Collector, (2008) SCC Online Bom.1067.
12. Mr. Takke, learned AGP for respondent Nos.1, 2 and 7 has referred to the orders passed by this Court and submits that there is clear acquiescence on the part of the petitioners to redevelopment of the 19/42 WP1366_09.doc property in joint venture with MHADA under DCR 33(9). He has referred to the memorandum of understanding dated 20.09.2006 entered into between petitioner Nos.1 and 2 and submits that clause 2 of the said agreement would clearly reveal full knowledge of the petitioners about acquisition of the property by MHADA for redevelopment of the existing structures. His submission is that it was for a public purpose i.e., rehabilitation of the tenants that the property was acquired for redevelopment. Redevelopment of the property presently is underway under the amended DCR 33(9) which would indicate that petitioners have accepted ownership of the land and property by MHADA through acquisition. In such circumstances, it is not open to the petitioners to pursue the challenge to the impugned order dated 21.12.2006.
13. Supporting Mr. Takke, Mr. Lad, learned counsel appearing for MHADA submits that as a matter of fact following the turn of events after this Court's order dated 19.07.2010 as corrected on 02.08.2010, nothing survives in the writ petition. Though the writ petition was filed challenging the order of acquisition dated 21.12.2006, at the intervention of the Court petitioners have accepted joint redevelopment with MHADA under amended DCR 33(9). Mr. Lad has referred to various provisions of the MHADA Act and submits that acquisition under the MHADA Act is different. In the course of his submissions, Mr. Lad also raised a technical objection regarding belated filing of the writ petition after withdrawal of the suit which cast aspersions on the bonafides of the petitioners. Reverting back to the arrangement or course of action directed by this Court vide order dated 19.07.2010 as corrected on 02.08.2010, he submits that redevelopment of the property under DCR 33(9) is not an interim arrangement. Such a course of action by its very nature has attained finality. All that remains is payment of premium by the petitioners to MHADA.
14. In his reply submissions, Mr. Jagtiani, learned senior counsel for the petitioners strongly refuted the contention that there was 20/42 WP1366_09.doc acquiescence to the acquisition by the petitioners and that the arrangement suggested by the Court vide order dated 19.07.2010 as corrected on 02.08.2010 is a final arrangement. His submission is that when Rule was issued it would mean that all contentions raised by the petitioners in the writ petition were admitted for final hearing and, therefore, the course of action suggested by the Court in the order dated 19.07.2010 as corrected on 02.08.2010 cannot but be an interim arrangement. He has referred to various documents on record to contend that the course of action suggested by the Court and all subsequent events were subject to outcome of the present writ proceeding. Therefore, question of acquiescence does not arise. Challenge to the impugned order of acquisition remains and the same is required to be decided on its own merit. On a query by the Court he submits that if the acquisition fails, the consequence would be that the petitioners would not be required to pay premium to MHADA since it would be construed that petitioners had carried out redevelopment on their own land.
14.1. In support of his contentions that there was no acquiescence or waiver on the part of the petitioners, learned counsel has relied upon the following decisions:-
1. M/s. Power Control Appliances Vs. Sumeet Machines Private Limited, (1994) 2 SCC 488;
2. Emcure Pharmaceuticals Limited Vs. Corona Remedies Private Limited, 2014 SCC OnLine Bom 1064; and
3. Kalpraj Dharamshi Vs. Kotak Investment Advisors Limited, 2021 SCC OnLine SC 204.
15. Submissions made by learned counsel for the parties have received the due consideration of the Court.
16. At the outset we may advert to the stand taken by MHADA and its authorities i.e., respondent Nos.3, 4 and 5 in the reply affidavit filed to the interim application of the petitioners. This is because this affidavit 21/42 WP1366_09.doc reflects the stand of the said respondents as recent as on 13.03.2020. After acknowledging that petitioners had taken on lease rooms from MHADA at New Hind Mills Compound for the purpose of transit accommodation of the tenants, it is stated that all the tenants have either been provided alternate accommodation or are being paid rent in lieu thereof by the petitioners. None of the tenants / occupants have complained against the petitioners regarding transit accommodation or rent. As to the acquisition proceedings, it is stated that respondent No.3 had exchanged correspondence with respondent No.6 to issue corrigendum to reduce the area of the land mentioned in the initial notice and the impugned order dated 21.12.2006 from 4721.60 sq.mtrs. to 2140 sq.mtrs. However, no steps were taken by respondent No.6 in this regard.
16.1. Proceeding further respondent Nos.3, 4 and 5 have admitted that the objective of the acquisition proceedings was to acquire the property for the purpose of redevelopment and re-accommodation of the tenants. But before possession of the property could be taken over by respondent No.3, petitioners submitted scheme to the High Power Committee for redevelopment under DCR 33(9) which was permitted by this Court to be carried out jointly with respondent No.3. In the circumstances, the said respondents have fairly admitted that the objective and purpose of redevelopment and obligations of MHADA / Board arising from such redevelopment have been taken over by the petitioners and all the responsibilities have been fulfilled by the petitioners including providing transit accommodation to the tenants and constructing buildings at their cost for the purpose of re-accommodating all the tenants. Paragraph 13 of the reply affidavit of respondent Nos.3, 4 and 5 to the interim application of the petitioners is relevant and the same is extracted hereunder:-
"13. I further say that it is true that acquisition proceedings had been initiated under section 92 read with 93 of the MHADA Act at the instance of the tenants / occupants of the suit property since the previous landlord had failed to keep the 22/42 WP1366_09.doc building on the suit property in tenantable repairs and habitable conditions. The entire objective of the acquisition proceedings under section 92 read with 93 of the MHADA Act is to acquire the property for the purpose of redevelopment and re- accommodation of the tenants. However, in the present case, before the possession of the property could be taken by respondent No.3 for the purpose of redevelopment, the applicants submitted a scheme to the High Power Committee set up under Regulation 33(9) of DCR 1991 to undertake the redevelopment work of the suit property. This Hon'ble Court also permitted redevelopment of the suit property in terms of joint venture between respondent No.3 and the applicants. The objective and purpose of redevelopment and obligations of MHADA / MBRRB arising from such redevelopment have been taken over by the applicants. MHADA / MBRRB would have had to provide 422 tenants transit accommodation and also construct buildings at its costs for the purpose of re- accommodating 422 tenants in permanent alternate accommodation on ownership basis. The entire responsibility has been fulfilled by the applicants."
16.2. The said respondents have also admitted that construction activity on the petitioners' property is being carried out in full swing. Petitioners have not defaulted on any conditions of redevelopment.
17. In view of the fair stand taken by respondent Nos.3, 4 and 5 in their reply affidavit to the interim application of the petitioners, the writ petition can be disposed of accordingly. However, since petitioners have pursued the challenge to the acquisition proceedings and since respondent Nos.1 and 2 and at the hearing learned counsel for respondent Nos.3, 4 and 5 as well have taken the stand that there is acquiescence by the petitioners to the acquisition proceedings in view of their opting for redevelopment under DCR 33(9), we are of the view that we should also deal with the above two aspects. But before proceeding further it would be apposite to deal with the relevant legal provisions.
18. The Maharashtra Housing and Area Development Act, 1976, already referred to as the 'MHADA Act' hereinabove, is an act to unify, consolidate and amend the laws relating to housing, repairing and reconstructing dangerous buildings and carrying out improvement works 23/42 WP1366_09.doc in slum areas. The objective behind enactment of the MHADA Act has been explained in section 1A by declaring that MHADA Act is for giving effect to the policy of the state towards securing the principle specified in Article 39(b) of the Constitution of India and for execution of proposals, plans or projects therefor and acquisition of the lands and buildings and transferring the lands, buildings or tenements therein to the needy persons and the co-operative societies of occupiers of such lands or buildings.
18.1. Various words and expressions used in the MHADA Act are defined in section 2. As per section 2(3), 'authority' has been defined to mean the Maharashtra Housing and Area Development Authority (MHADA) established under section 3. 'Board' has been defined under section 2(6) to mean a Board established under section 18. Section 18 deals with establishment of Boards. Clause (c) says that the state government shall by notification in the official gazette establish two Boards for carrying out the activities of repairs and reconstruction and slum improvement having the area of jurisdiction in the districts as shown against each of them. Amongst the two Boards established the one relevant for the present purpose is the Mumbai Repairs and Reconstruction Board, already referred to as the 'Board' hereinabove for the city of Mumbai.
18.2. Going back to the definitions, we find that under section 2(7) building for the purpose of Chapter VIII has been defined to mean building in respect of which cess is levied under that chapter and includes a tenement let or intended to be let or occupied separately and a house, out-house, stable, shed, hut and every other such structure but does not include unauthorized or temporary building or structure. Section 2(13) defines 'development' to mean carrying out of building, engineering, mining or other operations in or over or under any land or the making of any material change in any building or land and includes redevelopment and lay out and sub-division of any land and also the 24/42 WP1366_09.doc provision of amenities. Amongst existing boards mentioned in section 2(14) is included the Bombay Building Repairs and Reconstruction Board constituted under the Bombay Building Repairs and Reconstruction Board Act, 1969.
18.3. 'Land' has been defined in section 2(16) as including open sites and land which is being built upon or is already built upon, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth and also includes land under sea, creek, river, lake or any other water.
19. Chapter VIII of the MHADA Act comprising of sections 74 to 103 deals with repairs and reconstruction of dilapidated buildings. Section 74 says that the Mumbai Repairs and Reconstruction Board established under section 18 of the MHADA Act shall be the Board for carrying out the purposes of Chapter VIII. However, section 75 clarifies that the Board shall exercise its powers and perform its duties and functions under Chapter VIII subject to the superintendence, direction and control of MHADA. Section 76 lays down the duties of the Board relating to repairs and reconstruction of dilapidated buildings.
19.1. Section 88 deals with the power of the Board to undertake structural repairs to buildings which are in ruinous condition and likely to deteriorate and fall. As per sub-section (1) which is subject to other provisions of Chapter VIII, where the Board on consideration of information given by the Municipal Commissioner or on a report of its authorized officer or on other information in its possession, is satisfied that any building, which is occupied by persons, is in such ruinous or dangerous condition, that it is imminently likely to fall unless structural repairs are urgently done which will render it fit and safe for habitation, then in such cases the Board shall undertake such repairs subject to provisions of sub-section (3). As per sub-section (2), the Board may prepare a list of such buildings in order of priority or urgency. Under 25/42 WP1366_09.doc sub-section (3), if the Board is of the opinion that, (a) the cost of structural repairs to a building per square meter will exceed such amount as may be specified by the State Government by notification in the official gazette to be the structural repairs cost per square meter, or (b) the cost of structural repairs to a building per square meter will exceed the amount specified under clause (a) but the size of the land on which such building is standing is such that for some reason or the other it would not be possible or economical to erect any new building thereon and there is an adjoining building but the cost of structural repairs to such building per square meter does not exceed the amount specified under clause (a), then in such cases falling under both the clauses, the Board may not consider such building or buildings for repairs and instead may issue a certificate to that effect to the owner thereof, fix a copy of the relevant certificate in some conspicuous part of the building or buildings for the information of the occupiers and proceed to take action as provided in Chapter VIII. As per the first proviso, in cases of special hardship, the Board may consider a building for structural repairs even if the cost of such repairs is likely to exceed the limits specified. As per the second proviso, where the occupiers of the building undertake that they shall bear the cost of such repairs which are in excess of the amounts specified under clause (a) and abide by such terms and conditions for payment of the excess cost to the Board, the Board may carry out structural repairs to such building.
19.2. The procedure to be undertaken before carrying out structural repairs is laid down in section 89. Section 90 deals with temporary accommodation pending structural repairs.
19.3. Submission of proposal for acquisition is dealt with in section 92. As per sub-section (1), if in respect of any building the Board has issued a certificate under sub-section (3) of section 88 or the Municipal Commissioner under section 354 of the Mumbai Municipal Corporation Act, 1888 has issued a written notice requiring the owner or occupier 26/42 WP1366_09.doc thereof to pull down the building with a view to preventing all causes of danger therefrom and the Board is of the opinion that such building is not capable of being repaired or rendered fit for habitation at reasonable expense and is dangerous or injurious to the health or safety of the inhabitants thereof or where the Mumbai Corporation under section 354- R of the Mumbai Municipal Corporation Act, 1888 has passed a resolution declaring the area in which any such building is situated as the clearance area, the Board may submit to the State Government a proposal to acquire the land including a proposal for issue of a clearance and compulsory acquisition order to clear and acquire the land with the existing building in whatever condition and for constructing a new building on the same site and simultaneously prepare plans and estimates for the same. As per sub-section (2) in preparing the plans and estimates of the building to be reconstructed, it shall be the duty of the Board to see that all the occupiers in the building proposed to be demolished shall as far as practicable be provided in the reconstructed building accommodation with a floor area equivalent to their floor area in the old building.
19.4. Pausing here for a moment, from a conjoint reading of sub- sections (1) and (2) of section 92, we find that the proposal to acquire the land which is to be submitted by the Board to the State Government should include the land with the existing building thereon in whatever condition and for constructing a new building on the same site. While preparing the plan and estimate, the Board shall see to it that all the occupiers in the building proposed to be demolished are provided accommodation with equivalent floor area in the reconstructed building as far as practicable. Thus sub-section (1) of section 92 read with section 2(16), which defines land, would go to show that acquisition of land has to be with the existing building standing thereon in whatever condition.
19.5. Section 93 deals with clearance and compulsory acquisition. This section being relevant is quoted in its entirety:-
27/42WP1366_09.doc " 93. Clearance and compulsory acquisition.- (1) Notwithstanding anything contained in the Corporation Act, if on receipt of an acquisition proposal under section 92, the State Government is satisfied about the reasonableness of the proposal and of the resources available with the Board for constructing a new building, it may approve the proposal and communicate its approval to the Board.
(2) On receipt of the Government approval, the Board shall forward the acquisition proposal to the Land Acquisition Officer for initiating land acquisition proceedings.
(3) On receipt of the acquisition proposal from the Board, the Land Acquisition Officer shall publish simultaneously in the Official Gazette, and in at least four newspapers circulating within Brihan Mumbai a notice stating the fact of such proposal having been made by the Board and approved by the Government and alternative accommodation proposed to be provided to the occupiers affected by the proposal and the time before which the building must be vacated.
(4) The Land Acquisition Officer shall serve the notice referred to in sub-section (3) on the occupiers and owner of the building and, so far as it is reasonably practicable to ascertain such persons, on every mortgagee of the building, and call upon them to submit objections and suggestions, if any, why the land should not be acquired, so as to reach him on or before a date specified in the notice.
(5) On considering the objections and suggestions and on giving a reasonable opportunity of being heard to the persons affected by the proposal, the Land Acquisition Officer may sanction the proposals with or without any modification (the modifications being approved by the Board) and shall publish a notification in the Official Gazette fixing a date on which the proposal as approved shall become operative and the land specified therein, shall, on and from the date of such publication, vests absolutely in the Board on behalf of the Authority free from all encumbrances.
(6) The notification published under sub-section (5) shall be sufficient authority for the Collector to give notice to the person in possession of the land to surrender or deliver possession thereof within a specified period and on his refusal or failure to do so to take possession of the land and for that purpose to use such force as may be necessary, and to hand over possession thereof to the Board, and for the Board to take further action to get the building vacated in accordance with the next succeeding sub-sections. No person interested in the land shall have any right to object to taking such possession or 28/42 WP1366_09.doc to vacating of the building merely on the ground that the amount of acquisition has not been fixed or paid.
(7) After the proposal becomes operative, the occupiers of the building shall vacate their premises within the time allowed for that purpose under the proposal.
(8) After expiry of the time referred to in sub-section (7), the Board shall, for the purpose of vacating the building or such part thereof, as has remained occupied take or cause to be taken such steps and use or cause to be used such force as may in the opinion of the Board be reasonably necessary therefor.
(9) The Board may, after giving seven clear days' notice to the persons evicted under sub-section (8), remove or cause to be removed or dispose of by public auction any property remaining in such building.
(10) Where the property is sold under sub-section (9), the sale proceeds shall, after deducting the expenses of sale, be paid to such person or persons as may appear to the Board to be entitled to the same:
Provided that, where the Board is unable to decide as to the person or persons to whom the balance of the amount is payable or as to the apportionment of the same, it shall refer such dispute to a civil court of competent jurisdiction, and the decision of the court shall be final.
(11) After the building is completely vacated, the Board shall proceed to construct a new building on the site according to the proposal."
19.6. As per sub-section (1), if the state government is satisfied about the reasonableness of the acquisition proposal submitted under section 92 and is also satisfied of the resources available with the Board for constructing a new building, it may approve the proposal and communicate its approval to the Board. Under sub-section (2), on receipt of the government approval, the Board shall forward the acquisition proposal to the land acquisition officer for initiating land acquisition proceedings. Sub-section (3) requires that upon receipt of the acquisition proposal from the Board, the land acquisition officer shall publish a notice stating about such proposal made by the Board and approved by the government and alternative accommodation proposed to be provided 29/42 WP1366_09.doc to the occupiers affected by the proposal. The notice should also indicate the timeline for vacating the building. Such a notice shall be published by the land acquisition officer simultaneously in the official gazette and in at least four newspapers having circulation within Greater Mumbai. Under sub-sections (4) and (5), the land acquisition officer shall serve the notice referred to in sub-section (3) upon the occupiers and owner of the building as well as on the mortgagee of the building calling upon them to submit objections and suggestions as to why the land should not be acquired. On objections and suggestions being made, the land acquisition officer shall provide a reasonable opportunity of being heard to the persons affected by the proposal whereafter the land acquisition officer may sanction the proposal with or without any modification. This shall be followed by publishing a notification in the official gazette fixing a date on which the proposal as approved shall become operative and on and from such a date the land in question shall vest absolutely in the Board on behalf of MHADA free from all encumbrances.
19.7. Section 94 provides for temporary and alternative accommodation to the affected occupiers where property is acquired. As per sub-section (1), the Board shall allot temporary accommodation to occupiers of building acquired by it for constructing new building.
19.8. Under section 96, on publication of the notification under sub- section (5) of section 93, the land acquisition officer shall determine the amount of acquisition in accordance with the provisions of Chapter V. 19.9. Thus from a careful and conjoint reading of section 93 what transpires is that notice is required to be served by the land acquisition officer on the occupiers and owner of the building sought to be acquired under sub-section (3) calling upon them to submit objections and suggestions as to why the land should not be acquired. The use of the word shall in sub-section (4) is indicative of the obligatory character of notice being served upon all the occupiers of the building sought to be 30/42 WP1366_09.doc acquired. Upon receipt of objections and suggestions, it is also the duty of the land acquisition officer to give a reasonable opportunity of being heard to the affected persons. Occupiers of the building sought to be acquired are certainly persons affected. Therefore, what can be deduced from the above is that if notice is not served on all the persons affected and resultantly they are not given a reasonable opportunity of being heard then in such a case, the acquisition proposal may fall through. Not only that after the persons affected are given reasonable opportunity of hearing, the land acquisition officer shall publish a notification in the official gazette fixing a date on which the acquisition proposal shall become operative and it is from such notified date that the property shall vest with the Board. Additionally, upon publication of such a notification under sub-section (5) of section 93, it is also the duty of the land acquisition officer to determine the amount of acquisition. That apart, after the building is completely vacated, the Board shall proceed to construct a new building on the site according to the proposal.
20. Having analyzed the above, we may now advert to the facts of the present case.
20.1. Show-cause notice was issued by respondent No.6 on 25.05.2005 to the petitioners for acquisition of land admeasuring approximately 4721.60 sq.mtrs. with building Nos.289/299, 299A and 299B of survey Nos.641 and 642. The said notice was issued under sub sections (3) and (4) of section 93 of the MHADA Act. The occupiers of the buildings and the owners were called upon to submit objections and suggestions within thirty days. In the list of tenants/occupants as per 'schedule-C' appended to the notice, names of tenants/occupants of only the three buildings i.e. building Nos.289/299, 299A and 299B were mentioned. Petitioners in their objection dated 27.06.2005 strongly objected to the acquisition process. It was pointed out that the chawls were strong enough to be sustained for some more time as per report of structural engineer. That apart, the chawls were very much repairable. Tenants 31/42 WP1366_09.doc were opposed to redevelopment by MHADA. If tenants were interested, it was pointed out, petitioners could carry out repairs/reconstruction. Further it was brought to the notice of respondent No.6 that the list appended to the show-cause notice did not contain names of all the tenants/occupants. Therefore, respondent No.6 was requested to drop the acquisition proceedings.
20.2. Respondent No.5 also wrote to respondent No.2 on 26.08.2005 stating that reconstruction of only three buildings was taken up at the first stage for which acquisition of only 2140 sq.mtrs. area out of the total of 4721.60 sq.mtrs. area was required. Therefore, respondent No.2 was requested to issue necessary corrigendum rectifying the mistake in land area. This was followed by subsequent letter dated 24.07.2006. It may be mentioned that in both the letters total number of buildings in the petitioners property was mentioned as five though it should have been six.
20.3. As a matter of fact, respondent No.6 had written to respondent No.5 on 18.11.2006 pointing out that 70% of the occupants of the buildings had objected to re-development through MHADA which was submitted in writing during the hearing carried out under section 93(3) and (4) of the MADA Act. Therefore, respondent No.6 requested that the proposal for acquisition be dropped.
20.4. Surprisingly and contrary to what the respondent No.6 wrote to and requested respondent No.5, he issued the impugned order dated 21.12.2006 sanctioning the acquisition proposal under sub section (5) of section 93 of MHADA Act in respect of land admeasuring 4721.60 sq.mtrs. with building Nos.289/299, 299A and 299B (already referred to as "the petitioners property"). Thus from the above, it is evident that though the entire plot of land was sought to be acquired, only three buildings out of the six buildings standing thereon were sought to be acquired.
32/42WP1366_09.doc 20.5. Respondent No.5 continued to correspond with respondent No.2, firstly on 08.03.2007, thereafter on 01.06.2007 and again on 20.10.2007 requesting the latter to issue corrigendum for reducing the area of the land acquired from 4721.60 sq.mtrs. to 2140 sq.mtrs. as only three of the buildings were sought to be acquired. It was pointed out that issuance of the corrigendum was necessary to enable respondent No.6 to take over possession of the land and the buildings in terms of section 93(6) of the MHADA Act. In fact, this was made more specific in the letter dated 28.11.2007 written by respondent No.5 to respondent No.2 where it was pointed out that only that portion of the land acquired under the three buildings may be considered as valid.
20.6. Respondent No.3 in its letter dated 20.06.2009 addressed to respondent No.2 pointed out that only three out of the six buildings were acquired. In this way, hearing was not given by respondent No.6 to the tenants/occupants of the remaining three buildings.
20.7. Finally, we may refer to the stand taken by respondent Nos.3, 4 and 5 in their reply affidavit filed on 13.03.2020 to the interim application of the petitioners. In the said affidavit besides stating that it is the petitioners who had provided transit accommodation or rent in lieu thereof to the tenants/occupants, it is admitted that correspondences were made with respondent No.6 for issuance of corrigendum to reduce the land area from 4721.60 sq.mtrs. to 2140 sq.mrs.. However, no steps were taken by respondent No.6. It is also admitted that possession of the property could not be taken over by respondent No.3 for the purpose of re-development. Prior to that petitioners submitted scheme before the High Power Committee for redevelopment under 33(9) which was permitted by the Court. Therefore, the objective sought to be achieved by MHADA by way of acquisition has been achieved by the petitioners.
21. Thus, from the factual narrative as above, it is evident that the 33/42 WP1366_09.doc procedure prescribed for acquisition under section 93 of the MHADA Act, more particularly under sub sections (4), (5), (6) and (11), has not been followed. That apart, the provisions of section 96 has also not been complied with. In addition, the temporary alternate accommodation to be provided to the tenants/ occupants by the Board under section 94 has not been provided by the Board; instead the same has been done by the petitioners. Thus, it is crystal clear that respondent Nos.3 to 6 have not followed the procedure for acquisition laid down under sections 93, 94 and 96 of the MHADA Act. Because of the faulty show-cause notice and the impugned order, respondent No.6 has not been able to take possession of the property. The same has clearly vitiated the acquisition proceeding.
22. It is a salutary principle of administrative law that when the law requires a thing to be done in a particular manner, it has to be done in that particular manner or not at all. For failure to adhere to the procedure laid down in sections 93, 94 and 96 of the MHADA Act more particularly in not serving notice under sub section (3) of section 93 upon all the occupiers of the buildings standing on the petitioners property and not giving them reasonable opportunity of being heard, respondent No.6 has acted in violation of the principles of natural justice which has clearly vitiated the acquisition proceedings.
23. For the aforesaid reasons, the impugned order dated 21.12.2006 cannot be sustained and on this ground alone, the same is liable to be set aside and quashed.
24. However, since respondents have raised the issue of acquiescence by the petitioners to the process of acquisition by proceeding with redevelopment under DCR 33(9), we feel that the said aspect may also be addressed. But before that we may refer to DCR 33(7) and DCR 33(9).
34/42WP1366_09.doc
25. In exercise of the powers conferred by sub section (1) of section 31 of the Maharashtra Regional and Town Planning Act, 1966, the Development Control Regulations (DCR) have been framed. At the relevant point of time, Development Control Regulations for Greater Mumbai, 1991 were in force. The same has since been replaced by the Development Control and Promotion Regulations for Greater Mumbai, 2034 which have come into force with effect from 01.09.2018. DCR 33 deals with additional floor space index (FSI) which may be allowed in certain categories. DCR 33(7) deals with reconstruction or redevelopment of cessed buildings in Mumbai by co-operative housing societies or of old buildings belonging to the MCGM or of old buildings belonging to the police department. We have seen that petitioners had initially submitted proposal for redevelopment under DCR 33(7) but subsequently fresh proposal was submitted under DCR 33(9). Prior to 02.03.2009, DCR 33(9) provided for repairs and reconstruction of cessed buildings and urban renewal scheme. It stated that for repairs and reconstruction of cessed buildings and urban renewal scheme undertaken by MHADA or by the Mumbai Housing and Area Development Board or by the MCGM, the FSI should be 1.00 or the FSI required for rehabilitation of existing tenants/occupiers, whichever was more. After 02.03.2009, there was change in DCR 33(9). Amended DCR 33(9) read as under :-
"(9) Reconstruction or redevelopment of cessed buildings/Urban Renewal Schemes on extensive area.-
For reconstruction or redevelopment of cessed buildings/Urban Renewal Schemes in Island City, undertaken by (a) the Maharashtra Housing and Area Development Authority or Municipal Corporation of Greater Mumbai either departmentally or through any suitable agency or (b) MHADA/MCGM jointly with land owners and/or Co-operative Housing Societies of tenants/occupiers of buildings or Developer or Co-operative Housing Society of hutment dwellers therein (c) independently by land owners and/or Co-operative Housing Societies of tenants/occupiers of buildings or Developer, the FSI shall be 4.00 or the FSI required for rehabilitation of existing tenants/occupiers plus incentive FSI as given in Appendix III-A, whichever is more."
35/42WP1366_09.doc 25.1. It may be mentioned that DCR 33(9) came to be further amended on and from 09.09.2014 in the following manner:-
"(9) Reconstruction or redevelopment of Cluster(s) of Buildings under Urban Renewal Scheme(s).- For reconstruction or redevelopment of Cluster(s) of buildings under Urban Renewal Scheme(s) in the Island City of Mumbai undertaken by (a) the Maharashtra Housing & Area Development Authority (MHADA) or the Municipal Corporation of Greater Mumbai (MCGM) either departmentally or through any suitable agency, or (b) MHADA/MCGM, jointly with land owners and/or Co-op.
Housing Societies of tenants/occupiers of buildings and/or Co-op. Housing Society of hutment dwellers therein, or (c) land owners and/or Co-op. Housing Society of tenants/occupiers of buildings and/or Co-op. Housing Society of hutment dwellers, independently or through a Promoter/Developer, the FSI shall be 4.00 or the FSI required for rehabilitation of existing tenants/occupiers plus incentive FSI as per the provisions of Appendix-III-A, whichever is more."
26. Thus reconstruction or redevelopment of cessed buildings or under the urban renewal scheme could be carried out in the following manner :-
(a) by MHADA or MCGM either departmentally or through any suitable agency; or
(b) by MHADA/MCGM jointly with land owners and/or Co-
operative Housing Societies of tenants/occupiers of buildings or Developer or Co-operative Housing Society of hutment dwellers; or
(c) independently by land owners and/or Co-operative Housing Societies of tenants/occupiers of buildings or Developer or as per amendment on 09.09.2014 by Co-operative Housing Society of hutment dwellers independently or through a Promoter / Developer.
27. Therefore what is deducible from the above is that the amended 36/42 WP1366_09.doc DCR 33(9) provides that reconstruction or redevelopment could be independently carried out by the land owners and/or co-operative housing societies of tenants/occupiers of the buildings or by the developer. Though under the Development Control and Promotion Regulations for Greater Mumbai 2034, DCR 33(9) has undergone substantive changes, it may not be necessary to deal with the same as the redevelopment has taken place under the amended DCR 33(9) of Development Control and Promotion Regulations for Greater Mumbai, 1991, as extracted above. Because the reconstruction or redevelopment has been carried out by the land owners (in this case petitioners) with MHADA, it does not mean that there is acceptance by the petitioners to the acquisition by MHADA.
28. This brings us to the concept of acquiescence or waiver.
29. Black's Law Dictionary, Eighth Edition has defined 'acquiesce' as to accept tacitly or passively; to give implied consent to an act. 'Acquiescence' has been explained as a person's tacit or passive acceptance; implied consent to an act.
29.1. Acquiescence as a principle of substantive law is grounded in the concepts of good faith and equity.
30. Supreme Court in M/s. Power Control Appliances (supra) in the context of infringement of trade mark held that acquiescence is sitting by when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark etc. It implies positive acts and not merely silence or inaction. It was held as follows:
"26. Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches. In Harcourt v. White Sr. John Romilly said: "It is important to distinguish mere 37/42 WP1366_09.doc negligence and acquiescence." Therefore, acquiescence is one facet of delay. If the plaintiff stood by knowingly and let the defendants build up an important trade until it had become necessary to crush it, then the plaintiffs would be stopped by their acquiescence. If the acquiescence in the infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J. G.) & Co. v. Boehm. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers v. Nowill."
30.1. Elaborating on the law of acquiescence, reference was made to English decisions. It was held that to support a plea of acquiescence in a trade mark case, it must be shown that the plaintiff has stood by for a substantial period and thus encouraged the defendant to expend money in building up a business associated with the mark. Again referring to Halsbury's Laws of England, Fourth Edition, Volume 24 at paragraph 943, it has been held that an injunction may be refused on the ground of the plaintiff's acquiescence in the defendant's infringement of his right. Though the principles on which the court will refuse interlocutory or final relief on this ground are the same but a stronger case is required to support a refusal to grant final relief at the hearing. This is because at the time of hearing it is the court's duty to decide upon the rights of the parties and the dismissal of the action on the ground of acquiescence amounts to a decision that a right which once existed is absolutely and forever lost.
31. In State of Punjab Vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, Supreme Court after referring to M/s. Power Control Appliances (supra) clarified that inaction in every case does not lead to an inference of implied consent or acquiescence. Court has to examine the facts and circumstances in an individual case. Acquiescence being a principle of equity must be made applicable where a party knowing all the facts of bias etc. surrenders to the authority of the Court / Tribunal without raising any objection. It has been held that acquiescence is sitting by when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in 38/42 WP1366_09.doc other party.
32. A Single Bench of this Court in Emcure Pharmaceuticals Limited (supra) which was also a case of trade mark infringement held that the question of acquiescence arises where a mark's proprietor being aware of his rights and being aware that the infringer may be ignorant of these does some affirmative act to encourage the infringer's misapprehension so that the infringer worsens his position and acts to his detriment. A mere failure to sue without a positive act of encouragement is no defence and is no acquiescence. It has been held that a man cannot sit indolent and idle, aware of the invasion of his rights by another, and then complain of that invasion. Elaborating further it has been held that acquiescence is a species of estoppel, a rule in equity and a rule of evidence. Essential to the acquiescence doctrine is that it is accompanied by an encouragement or an inducement. Acquiescence is sitting by when another invades his rights and spends money in the doing of it. It is a conduct incompatible with claims of exclusivity but it requires positive acts, not mere silence or inaction. Acquiescence is not mere negligence or oversight. There must be abandonment of the right to exclusivity.
33. Supreme Court in the case of Kalpraj Dharamshi (supra) held that for constituting acquiescence or waiver it must be established that though a party knows the material facts and is conscious of his legal rights in a given matter but fails to assert his rights at the earliest possible opportunity, it creates an effective bar of waiver against him. On the one hand, acquiescence would be a conduct where a party is sitting by when another is invading his rights and acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant, on the other hand, waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege. It is an agreement not to assert a right; there can be no waiver unless the person who is said to have waived is fully informed as to his rights and with full 39/42 WP1366_09.doc knowledge about the same, he intentionally abandons them.
34. Having noticed the above, we find that in the instant case, petitioners had initially submitted proposal on 29.03.2006 before respondent Nos.3 to 5 for development of the entire property under DCR 33(7) which had the support of 70% of the tenants. The said proposal was stated to be pending. When respondent No.6 issued the impugned order dated 21.12.2006, this order dated 21.12.2006 came to be challenged by the petitioners in the present writ proceeding.
35. We have already discussed about the exchange of communications between different authorities pointing out the defects in the acquisition notice and order. We have mentioned that DCR 33(9) was amended with effect from 02.03.2009. Following the same petitioners had submitted proposal on 20.06.2009 to respondent No.5 for redevelopment under amended DCR 33(9). We have also seen that under amended DCR 33(9) there is provision for the land owner to carry out redevelopment independently.
36. This Court by order dated 19.07.2010 as corrected on 02.08.2010 had admitted the writ petition by issuing Rule. In the meanwhile, petitioners were permitted to carry out joint development of the property under DCR 33(9) with MHADA. Petitioners have carried out redevelopment jointly with MHADA as per order of this Court. When this Court had issued Rule by admitting the writ petition and thereafter passed the order in the above terms, such order would necessarily be construed to be an order in the interregnum. When the petitioners acted upon the said order it cannot be construed that petitioners had abandoned their challenge to the acquisition proceedings by going ahead with the redevelopment jointly with MHADA. As already noticed above, there is no sitting by of the petitioners to the invasion of their rights by MHADA. As a matter of fact in several subsequent documents which have been placed on record it has been clarified that such redevelopment 40/42 WP1366_09.doc was subject to outcome of the writ petition. In the letter dated 22.09.2015 written by the Board to the High Power Committee it was pointed out that this Court had permitted redevelopment of the property under DCR 33(9) as cluster on assumption that the property had been acquired by MHADA. However, it was mentioned that the present writ petition was pending for final hearing and the final outcome of the writ petition would be binding upon the petitioners and MHADA. Again in the supplementary agreement dated 24.07.2017 entered into between the Board and petitioner No.2, it was mentioned that the purported order of acquisition by MHADA dated 21.12.2006 was challenged by the petitioners in the present writ petition which was pending for final hearing and disposal. It was also mentioned that the redevelopment was subject to final outcome of the pending writ petition.
36.1. We may also mention that once a writ petition is admitted for hearing by issuing Rule, it would be highly unjust and inequitable to non-suit the petitioners on the ground of delay and laches after a decade or so at the stage of final hearing. However, in the given facts and circumstances of the case, we are of the opinion that there was no undue delay by the petitioners.
37. Thus having regard to the above we are of the considered view that the plea of acquiescence by the petitioners as raised by the respondents is without any substance and is accordingly rejected.
38. Though learned counsel for the petitioners had referred to and relied upon the Division Bench decision of this Court in Bhalchandra Datey (supra), in view of the conclusions reached, it may not be necessary for us to dwell on the same.
39. For the reasons already indicated we are of the unhesitant view that the impugned order dated 21.12.2006 cannot be sustained. Accordingly the same is hereby set aside and quashed.
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40. Petitioners succeed and consequently the writ petition is allowed to the above extent. Interim Application is also disposed of. However, there shall be no order as to cost.
(MADHAV J. JAMDAR, J.) (UJJAL BHUYAN, J.)
Minal Parab
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