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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.658 OF 2017
Indian Cork Mills Private Limited. )
A private limited company )
Having its registered office at )
Saki Vihar Road, Powai, )
Mumbai-400 072 )..Petitioner
Vs.
1.The State of Maharashtra, through its Housing )
Department having its office at 6th floor, )
Mantralaya, Mumbai. )
2. The Slum Rehabilitation Authority through the )
Chief Executive Officer. )
3. The Deputy Collector, )
The Slum Rehabilitation Authority )
4. Tarabai Nagar Co-op Hog. Society (Proposed) )
(i.e. Tarabai Nagar Sahakari Grihanirman Sanstha)
proposed) A society duly formed to be registered )
under the provisions of Maharashtra Cooperative )
Housing Societies Act, 1960 by all slum dwellers )
Having its office at Tarabai nagar, Tungwa gaon, )
Saki Vihar Road, Mumbai-400 072 through its )
Chief Promoter Abdul Rashid Kadar Khan )
Committee members,(i) Irba Kamble (ii) Rajaram )
Jondhle (iii) Mohammed MK (iv) Ramesh Waghmare)
(v)Omprakash Singh (vi) Mariyam Sayyed )
(vii) Navinder Kaur (viii) Ibrahim Shaikh )
All Indian inhabitants of Mumbai. )…Respondents
with
Chamber Summons No.232 of 2017
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Mr.Virag Tulzapurkar, Senior Advocate with Mr.Nikhil Sakhardande,
Mr.Vikram Deshmukh, Abinash Pradhav and Ms.Deepu Jojo i/b.
M/s.Wadia Ghandy Co., for the Petitioner.
Mr.Milind Sathe, Senior Advocate with Mr.Girish Utangale, Mr.Bhushan
Deshmukh, Mr.Gaurav Srivastav, Chetan Mhatre and Mr.Suyash Gadre i/b.
M/s.Utangale Co., for SRA-Respondent nos.2 and 3.
Mr.Sukanta Karmarkar, AGP for State-Respondent No.1.
Mr.Pravin Samdani, Senior Advocate with Mr.Sanjeev R.Singh, Mr.Amogh
A.Singh, Mr.Ritesh A.Singh and Ms.Nilima Hode i/b. Mr.Sanjeev Singh, for
Respondent No.4.
Mr.Kalpesh Joshi with Mr.Arvind Shrivastava i/b. M/s.Kalpesh Joshi
Associates, for Applicant in Chamber Summons No.232 of 2017.
……
CORAM : SHANTANU KEMKAR
G. S. KULKARNI JJ.
RESERVED ON : 2nd MAY, 2018
PRONOUNCED ON: 13th JUNE, 2018
—
JUDGMENT:(Per G.S.Kulkarni.J)
Rule returnable forthwith. Respondents waive service. By
consent of the parties and at their request heard finally.
1. The petitioner who is the owner of land bearing CTS No.191
I, 191I/1 to 83 admeasuring 9054 sq.meters at Village Tungwa, Taluka
Kurla, Mumbai (for short ‘the said land’), has filed this proceeding under
Article 226 of the Constitution, challenging the notice/notification dated
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22 December 2016 issued by respondent no.1-State of Maharashtra (for
short ‘the State Government’) under sub-section (1) of Section 14 read
with paragraph (A) of sub-clause (i) of clause (c) of Section 3D of the
Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971 (for short “the Slum Act”), declaring acquisition of the said
land of the petitioner, for the purpose namely to enable the Slum
Rehabilitation Authority (for short “the SRA”) to carry out development
under a Slum Rehabilitation Scheme, on the said land, which has been
declared as a ‘slum rehabilitation area’ under Section 3C(1) of the Slum
Act. Consequent to the impugned notification Respondent no.3-Deputy
Collector Slum Rehabilitation Authority by a communication dated 7
January 2017 has called upon the petitioner to furnish details of the
amount of rent which the petitioner has collected since last five years, to
be furnished, for determination of the acquisition compensation, failing
which it would be presumed that the petitioner has nothing to say. This
communication is also impugned by the petitioner.
2. In recent times in all urban areas we see large scale building
activities, city of Mumbai is not an exception and in fact would be the
epicenter of such activity, with skyscrapers being built wherever land is
available and the city has to grow only vertically. Apart from slums on
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public lands there are as well slums on large private lands. Thus large part
of the development activity is also the development of slums and slum
rehabilitation areas. What would be the nature of the statutory rights of
private owners of land, in re-development of such slum areas under the
Slum Act? Whether the owner of the land would have a preferential right
to undertake re-development or the only method to redevelop such areas
would be to resort to compulsory acquisition of such private land are the
question as posed in this petition.
3. Principally the following questions would require
determination in this petition :-
(i) Whether the petitioner who is owner of the land which is
declared as a slum rehabilitation area under section 3C(1) of the Slum Act
would have a preferential right under section 3B(4)(c) and (e) read with
section 13 (1) falling under Chapter I-A of the Slum Act, as inserted by
Maharashtra Act 4 of 1996 to undertake redevelopment the slum
rehabilitation area ?
(ii) If the owner of the land has such rights under the provisions as
referred in (i) above, whether the failure of the authorities to recognize
and enforce such rights of the owner of the land, would render illegal, the
acquisition of land under section 14 (1) of the Slum Act ?
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4. We narrate the conspectus of facts to aid the discussion :-
The petitioner is the owner of the land in question since the
year 1970. It is not in dispute that the land was encroached by hutment
dwellers. In the year 1979, the State Government vide notification dated
18 September 1979 issued under Section 4 of the Slum Act, declared part
of the land admeasuring 3045.03 sq.meters as a ‘slum.’ Thereafter the SRA
exercising powers under Section 3C(1) of the Slum Act by a notification
dated 11 March 2011 published in the official gazette, declared the entire
area of the petitioner’s said land admeasuring 9054 sq.meters as a ‘slum
rehabilitation area’. Consequent to this notification the SRA appears to
have taken steps, to acquire the said land purportedly on a proposal of the
respondent no. 4 which is a housing society formed by the slum
dwellers/occupants of the land.
5. The petitioner as was not fully aware of all the official details
for the SRA to initiate acquisition proceedings, the petitioner on 17 June
2016 made an application under the Right to Information Act, seeking
information/documents in relation to the acquisition proposal. In response
thereto in September, 2016 the petitioner received relevant information,
which revealed that the hutment dwellers residing on the land had
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registered society named as Tarabai Nagar Co-operative Hsg. Society
(Proposed)/ Tara Nagar Welfare Society-Respondent no.4 (for short ‘the
said society’) for implementation of a slum rehabilitation scheme on the
said land. The society had submitted a proposal dated 28 February 2012
to the State Government seeking acquisition of the said land for the
purpose of implementation of the slum rehabilitation scheme. On the said
proposal a notice dated 17 May 2012 was purportedly addressed to the
petitioner inviting objections to acquisition. The petitioner has stated that
this notice was never received by the petitioner. Thereafter by a letter
dated 4 August 2012 a report was made by the Additional Collector (slum
rehabilitation) to the State Government recommending acquisition,
however the said letter was silent on any stand of the petitioner on the
acquisition. Further by a letter dated 18 October 2012, the State
Government called upon the Chief Executive Officer of the S.R.A. to
submit its report qua the acquisition of the said land as per the
requirement of Section 14(1) of the Slums Act.
6. It is the petitioner’s case that without any intimation to the
petitioner the Slum Rehabilitation Authority by its letter dated 29
November 2012 informed the State Government that there was no
objection in acquiring the said land and the State Government may
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consider the proposal of acquisition of the said land. The SRA had also
confirmed that no proposal for implementation of any slum rehabilitation
scheme on the said land had been submitted to the SRA by any party. The
petitioner has stated that, however, the State Government in its Housing
Department, by its letter dated 9 April 2013 addressed to the Chief
Executive Officer of the SRA, inquired that though the SRA has confirmed
that there was no objection to acquire the land, however, the SRA had
failed to clarify as to whether the landlord/petitioner was given an
opportunity to submit its say/statement in regard to the said acquisition.
The State Government accordingly called upon the SRA to ensure that the
landlord/petitioner was given an opportunity to submit its statement on
the acquisition of the said land and called upon the SRA to submit its
report considering the say of the petitioner. Accordingly, on 8 August
2013, the Chief Executive Officer of the SRA issued a notice to the
petitioner/owner, as also to the Chief Promoter of the Society, informing
of a hearing as fixed on 26 August 2013 and that the parties will have to
show cause as to why the said land be not acquired at the behest of the
society and a report to that effect to be forwarded to the State
Government. Responding to the said notice, the petitioner addressed a
letter dated 23 August 2013 objecting to the acquisition proposal of the
State Government inter alia stating that the petitioner was willing to
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develop the said land and undertake rehabilitation of the slum dwellers.
The petitioner also objected and expressed its opposition to introduce any
third party for development of the petitioner’s land.
7. Accordingly a hearing took place before the SRA on 26
August 2013 in which the representative of the Society made its
submissions as also the representative of the petitioner recorded its
objection on the said land acquisition proposal. The hearing was further
adjourned to 16 September 2013.
8. On 12 September 2013, before the next hearing the petitioner
addressed a letter to the Deputy Collector- SRA, recording that the
petitioner in its capacity as the owner of the land was not made aware of
the proposal to acquire the land initiated at the behest of the society, and
that it so became aware only on receipt of the aforesaid notice dated 8
August 2013 of the SRA. The petitioner placed on record that the
petitioner was interested in re-developing the said land and rehabilitate
the slum dwellers. The petitioner further recorded that it had come to its
knowledge that several builders were trying to intrude qua the re-
development said land. The petitioner also recorded that the petitioner
was taking care of the land and of the slum dwellers since many years.
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9. On 16 September, 2013, being the adjourned date of hearing
before the Chief Executive officer, the representative of the Society again
made submissions asserting acquisition of the land, however, the
petitioner opposed the acquisition proposal reiterating that the petitioner
was willing to develop the land and rehabilitate the hutment dwellers on
the land. The petitioner stated that it was its legal right and entitlement to
redevelop the land. The Chief Executive Officer of the SRA, reserved
orders on the said hearing.
10. The petitioner thereafter addressed a letter dated 8 October
2013 to the Chairman of the Society recording its willingness to develop
the said land by implementing the slum rehabilitation scheme. The
petitioner assured the society that it would provide appropriate
rehabilitation to its members and requested the society to submit proof of
residence of all its members so as to enable the petitioner to initiate the
process of implementation of slum rehabilitation scheme. To facilitate the
process of obtaining the required consent of the hutment dwellers, the
petitioner also appointed a representative to look after the legal matters
for development of the said land. The society positively responded to the
petitioner’s letter. The Society by its letter dated 10 October 2013
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acknowledging initiatives of the petitioner, confirmed its full trust and
support from majority of its members to the petitioner. This letter was
signed by twenty three members of the society. Thereafter, the society by
another letter dated 16 October 2013 requested the petitioner to give
some time to the society on the redevelopment steps, as the committee
members were yet to be elected and the society was in the process of
conducting elections.
11. It is the petitioner’s case that from the documents received by
the petitioner under Right to Information Act, it was also revealed that at
the relevant time, one Mr. Anuj Desai, Director of Concrete Lifestyle
Infrastructure Pvt. Ltd., had filed an affidavit dated 11 December 2007,
before the Additional Collector (Encroachment and Removal) as the
alleged constituted attorney of the petitioner,in relation to the proposal for
acquisition of the said land. The petitioner states that it had neither given
any authority to Mr.Anuj Desai to act or appear for the petitioner nor the
petitioner had any knowledge as to the identity of this person. This
according to the petitioner would show that the application of the society
for acquisition of the land was motivated by a third party- developer
namely Concrete Lifestyle Infrastructure Pvt. Ltd. The petitioner,
therefore, by its Advocate’s letter dated 18 October 2013 called upon Mr.
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Anuj Desai to withdraw the said affidavit filed by him. The petitioner also
by its letter dated 22 October 2013 addressed to the Deputy Collector of
SRA placed on record the illegality of Mr.Anuj Desai interalia stating that
the petitioner had not executed any power of attorney in favour of
Mr.Anuj Desai and called upon the Deputy Collector-SRA, not to rely on
any representation made by Mr.Anuj Desai or Concrete Lifestyle
Infrastructure Pvt. Ltd. It is the petitioner’s contention that the entire
acquisition process was thus vitiated by false/ fraudulent documents and
representations as made to the authorities.
12. The Chief Executive Officer of the SRA thereafter submitted a
report dated 21 December 2013 to the Principal Secretary- Housing
Department of the State Government, inter alia recording that the society
had submitted a proposal for acquisition of the said land which was
objected by the petitioner on the ground that the petitioner itself would
implement the slum rehabilitation scheme. The SRA however stated that
since the petitioner had not submitted any proposal/scheme for slum
rehabilitation, the State Government nonetheless consider the Society’s
proposal for acquisition of land, considering that the hutment dwellers
seeking rehabilitation, are protected slum dwellers and are legally
authorized for rehabilitation. By another letter dated 9 January 2014 of
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the SRA to the Deputy Secretary-Housing Department, it was again stated
by the SRA, that for the rehabilitation of the slum dwellers on the said
land, no scheme was received by the SRA from any developer. Thereafter
the State Government by its letter dated April, 2014 called from the SRA,
further information/documents in relation to the acquisition proposal,
which was complied by the SRA by its letter dated 12 May 2014.
13. Further the SRA under its letter dated 29 November 2014
addressed to the State Government, submitted its additional report on the
status of the said land and confirmed that a slum rehabilitation scheme,
under Rule 33(10) of the Development Control Regulations,1991 (for
short ‘DCR’) can be implemented on the said land. The SRA again
requested the State Government to consider the proposal for acquisition of
the land. By another letter dated 3 January 2015, the State Government
requested the SRA to submit petitioner’s documents, objecting to the
acquisition of the land. Immediately, on the same day the SRA submitted
the documents as required by the State Government.
14. As no response was forthcoming from the SRA/State
Government, on the petitioner’s intention and assertion to undertake the
slum rehabilitation scheme, the petitioner by its letter dated 25 February
2015 re-informed the State Government and the SRA of its intention to re-
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develop the said land under the Slums Act read with the DCR 33(10).
The petitioner also recorded that certain third parties who have no right
and interest whatsoever on the said land are attempting to intrude/usurp
the petitioner’s rights on the said land. Similar letter was addressed to the
Housing Minister of the State.
15. However as a matter of further development, the Housing
Department of the State Government by its letter dated 16 April 2015
addressed to the SRA, recorded that the proposal for acquisition of the
said land was submitted for approval to the Hon’ble Minister for Housing.
The SRA was also asked to respond to the letter dated 25 February 2015
of the petitioner, which according to the petitioner, was not responded by
the SRA. As none of the petitioner’s letters by which the petitioner had
expressed its willingness to redevelop the land in question and implement
the slum rehabilitation scheme were taken cognizance by any of the
authorities, the petitioner again by its letter dated 6 May 2015 addressed
to the SRA reiterated its willingness to redevelop the land under
Regulation 33(10) of DCR and rehabilitate the slum dwellers and thus
requested the SRA to issue necessary directions to enable the petitioner to
carry out survey and demarcation on the said land to enable it to submit
its proposal for redevelopment of the said land.
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16. As regards the proposal to acquire the said land, the SRA
thereafter by its letter dated 15 May 2015 addressed to the State
Government recorded, that in the hearing held by it, the petitioner had
expressed its willingness to undertake the slum rehabilitation scheme and
had reiterated the said request by its several letters. The SRA recorded
that the petitioner had also requested an opportunity to submit a scheme
under its letter dated 6 May 2015. It was recorded that, whether one more
opportunity be granted to the owners be considered at the level of
Government. According to the petitioner, the SRA thus categorically
concluded that the petitioner was entitled to a preferential right to
develop the said land under Section 3B(4)(e) of the Slum Act and an
opportunity was thus required to be given to the petitioner to submit a
slum rehabilitation scheme before deciding finally on the acquisition
proposal under the Slum Act. The petitioner has also referred to an
internal noting dated 14 May 2015 on this letter of the SRA dated 15 May
2015. It is thus the petitioner’s case that considering this clear letter of
the SRA, an opportunity ought to have been granted to the petitioner to
submit a slum rehabilitation scheme before deciding the proposal for
acquisition of land. It is petitioner’s case that except for the documents
received by the petitioner under the Right to Information Act, none of
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these internal correspondence between the SRA and the State was known
to the petitioner.
17. The petitioner says that there was another internal noting
dated 18 May 2015 of the SRA and its officers by which it was approved
that the petitioner-landlord is entitled as a right to develop the land under
Section 3B(4)(e) of the Slums Act. The petitioner says that in view of this
noting, an opportunity ought to have been granted to the petitioner to
submit a slum rehabilitation scheme before deciding finally on the
acquisition proposal under the Slums Act.
18. The petitioner, hence, again addressed letters dated 15 July
2015 and 16 July 2015 to the State Government and the SRA respectively
reiterating its stand to redevelop the scheme as also to rehabilitate the
slum dwellers. The State Government was requested that appropriate
directions be issued to the SRA to stay the acquisition proceedings and in
the meantime, the petitioner would submit a slum rehabilitation scheme.
The SRA was also requested to allow the petitioner to submit a proposal to
take further steps and not to accept or process the slum rehabilitation
scheme from any third party. The petitioner submitted that as held in the
decision of the Division Bench of this Court in Anil Gulabdas Shah Vs.
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State of Maharashtra1, the petitioner had a preferential right to
redevelop the said land and a thus a reasonable time ought to be granted
to the petitioner being the owner of the land, to submit a scheme for
redevelopment.
19. In response to the SRA’s letter dated 15 May 2015, the State
Government by its letter dated 12 October 2015 recorded that, qua the
acquisition proposal in regard to the said land, an opportunity of a hearing
was required to be granted to the petitioner and only then the proposal
should have been submitted for implementation of the slum rehabilitation
scheme. The State Government accordingly called upon the SRA to take
appropriate steps at its level and suggested that the matter may also be
referred to the High-Power Committee.
20. The case of the petitioner on the above backdrop is that till
October, 2015, both the State Government as also the SRA were of the
view that an opportunity should be given to the petitioner to submit a
slum rehabilitation scheme to redevelop the said land before deciding the
proposal for acquisition of the land.
21. The petitioner further refers to a noting dated 16 April 2016
1 2011(1) Mh.L.J. 797
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by which according to the petitioner the Deputy Collector-SRA and other
officers of the SRA, approved that as per the decisions of this Court as
referred therein, the landlord has a preferential right to redevelop the
land, and thus an opportunity ought to have been given to the petitioner
to submit its proposal for slum rehabilitation scheme, before taking any
final decision is taken in regard to its acquisition. The petitioner contends
that however, the Chief Executive Officer contrary to the said clear stand
on record, as also discarding his own earlier stand, had taken a contrary
position that the petitioner had not submitted any proposal for slum
rehabilitation scheme, and asserted that it would not be proper to give a
chance to the petitioner to submit a rehabilitation scheme. This according
to the petitioner was clear from the internal noting dated 16 April 2016.
22. The petitioner says that the SRA however, contrary to the
above clear position as borne out by the documents, by its letter dated 12
September 2016 informed the State Government, that though the
authorised representative of the petitioner was present at the hearing
held on 26 August 2013 and 16 September 2013 respectively, however the
petitioner had not submitted any proposal for slum rehabilitation and
hence it would not be proper to give a chance to the petitioner to submit a
slum rehabilitation scheme. This according to the petitioner was contrary
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to the opinion of the State as reflected in the letter dated 12 October 2015
addressed to the SRA.
23. The petitioner says that the State Government contrary to the
record accepted the SRA’s stand and issued the impugned notification
dated 22 December 2016 under Section 14(1) of the Slums Act, deciding
to acquire the said land. According to the petitioner, the impugned
notification is issued without the petitioner being granted a reasonable
opportunity to submit a proposal for redevelopment of the said land and
recognize the petitioner’s preferential right to so develop its land. In
consequence to the said notification/ notice issued by the State
Government to acquire the said land, the SRA by its letter dated 7 January
2017 addressed to the petitioner and the Society, called upon to submit
documents of rent collected in last five years from the hutment dwellers
and to confirm the loss/ compensation in respect of the said land and also
called upon the petitioner to remain present for hearing on 19 January
2017.
24. The petitioner on the above backdrop is before the Court inter
alia seeking the following reliefs:-
“(a) that this Hon’ble Court be pleased to issue a writ of
certiorari or a writ, order or direction in the nature of certiorari
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GG-1 hereto) and Impugned Letter dated 7th January 2017
(Exhibits HH and HH-1 hereto) and after going through the
legality, validity and propriety of the same be pleased to quash
and set aside the same;
(b) This Hon’ble Court be pleased to issue writ of mandamus
or a writ in the nature of mandamus or any other appropriate
writ or direction under Article 226 of the Constitution of India
directing Respondent No.2 to permit the Petitioner to submit
application/proposal for implementation of a slum rehabilitation
scheme and further to consider and process the same for
implementation of a slum rehabilitation scheme on the said Land
under Regulation 33(10) of DCR and to issue the necessary
approvals in respect thereof within a period of 2 (two) weeks or
such time as the Hon’ble Court deems fit and proper;
(c) That this Hon’ble Court be pleased to issue a writ of
mandamus any other writ, order or direction in the nature of
mandamus directing the Respondents to allow the Petitioner to
redevelop the said Land in accordance with law and not to
entrust to or allow the work of redevelopment of or
implementation of any slum rehabilitation scheme on the said
Land by any third party /developer.
(d) That this Hon’ble Court be pleased to issue a writ of
mandamus any other writ, order or direction in the nature of
mandamus directing the Respondents to not in any manner act
upon or implement the impugned notice dated 22 nd December
2016 (Exhibits GG and GG-1 hereto) and Impugned Letter dated
7th January,2017 (Exhibits HH and HH-1 hereto);
(e) That this Hon’ble Court be pleased to issue a writ of
mandamus any other writ, order or direction restraining the
Respondents from passing any award for acquisition of the said
Land or determining the compensation (allegedly) payable to the
Petitioner in lieu of the alleged acquisition of the said Land;”
25. The petitioner has placed on record a further affidavit dated 6
December 2017, inter alia reiterating that the impugned notification
dated 22 December 2016 under Section 14(1) of the Slum Act, is
issued without offering the petitioner a prior and reasonable
opportunity to exercise preferential right to redevelop the said land which
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could have enabled the petitioner to submit a proposal/scheme under the
Slum Act. The petitioner says that the preferential right of the owner to
redevelop and implement the slum rehabilitation scheme, is a necessary
ingredient of modified Section 13(1) of the Slum Act, and thus the SRA
ought to have called upon the petitioner to submit a proposal for
redevelopment and slum rehabilitation and only on the petitioner failing
to do so within a reasonable time, the authorities could resort to take
appropriate steps under the Slum Act. It is stated that none of this
established long standing procedures have been followed in the
petitioner’s case although followed in many similar cases. To support this
contention, petitioner has placed reliance on copies of letters addressed by
the SRA calling upon the owners to exercise their rights under the
modified section 13(1) and submit a proposal for redevelopment, which
the petitioner contends would show that it is an established policy and
procedure followed by the SRA. It is stated that the petitioner having
addressed several letters to the respondent recording that the petitioner is
ready and willing to undertake re-development of the said land under its
preferential right under modified section 13(1), there was no response
from the SRA or the State Government to these letters of the petitioner.
The petitioner says that the respondent-SRA had failed to produce any
letter and/or notice calling upon the petitioner to submit a
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proposal/scheme under the modified Section 13(1) of the Slums Act. It is
stated that in the affidavit as filed on behalf of the SRA, there is no
reference or even a whisper to the aforesaid practice being followed by the
SRA prior to acquisition and/or no explanation is offered as to why such
established procedure was not followed in the present case. It is
submitted that the action of the SRA in not treating the petitioner’s
repeated applications for redeveloping the said land and failing to call
upon the petitioner to submit a proposal within a reasonable time, is
arbitrary and deliberate attempt to depriving the petitioner of its
proprietary right in breach of the statutory provision. It is thus the
contention of the petitioner that the impugned notice issued by the State
under Section 14(1) of the Slum Act is without following due procedure of
law and contrary to the provisions of the Slum Act.
26. The State Government (Respondent no.1) has filed an
affidavit-in-opposition of Mr.Manohar R.Parkar, Under Secretary of the
Housing Department. At the outset, it needs to be noted that there is a
complete misunderstanding of the deponent qua the reliefs as prayed in
the petition, when in paragraph 2 of the affidavit the State contends that
the petitioner has challenged constitutional validity of Sections 14 and 17
of the Slums Act and that the constitutional validity has been upheld in
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the decision of this Court in “Sara Harry D’Mello Vs. State of
Maharashtra Ors”2. The affidavit further states that as per the
amended provision Section 14(1) read with Section 3D(c)(i) of the Slums
Act on a representation received from the Chief Executive Officer of SRA,
to enable the SRA to execute any work of improvement or to redevelop
any slum area or any structure in such area, the State Government is
empowered to acquire the land by publishing a notice in the official
gazette. It is stated that the Chief Executive Officer, Slum Rehabilitation
Authority had declared 9054 sq.mtrs. area of CTS No.119(I), 119(I/1 to
83), Village Tungwa, Saki Naka, Vihar Road, Tarabai Nagar, Mumbai
Suburban District as a “slum rehabilitation area” as per Section 3C(1) of
the Slums Act, by a notification dated 11 March 2011 as published in the
Government Gazette dated 16 March 2011. It is stated that this
notification was not challenged by the petitioner and hence had attained
finality. It is stated that accordingly the Chief Executive Officer, SRA had
submitted its representation/ report on 21 December 2013 to the State
requesting to acquire the said land admeasuring 9054 sq.mtrs., under
Section 14(1) of the Slum Act. It is stated that as mentioned in the report
of the Chief Executive Officer of the SRA, proper procedure was followed
by publishing a notice in the newspapers calling objections and
suggestions from the land owners and giving hearing etc. It is stated that
2 2013(4) Mh.L.J. 348
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the State Government had accordingly issued the impugned notification
under Section 14(1) of the Slums Act, as published in the official gazette
dated 22 December 2016 declaring acquisition of the said land, which for
the last about thirty five years was encroached by the slum dwellers and
the petitioner had failed to develop the said land and thus had lost the
opportunity to implement the slum rehabilitation scheme on the said
property by their own conduct. It is stated that the State Government had
acquired the said land after following due procedure in law. The
impugned notification/notice of the State Government dated 22 December
2016 issued under Section 14(1) of the Slum Act is thus legal and valid.
27. The SRA (respondent nos.2 and 3) has filed an affidavit-in
-opposition, of Mr.Eknath Navale, Deputy Collector of SRA. The first
contention of the SRA is of the petition being not maintainable, as
according to the SRA by virtue of notice/notification dated 22 December
2016 issued under Section 14(1) of the Slums Act as published in the
Government Gazette, the land stood vested in the State Government free
from all encumbrances and the petitioner would be entitled, only to
receive compensation. The affidavit further states that the land is duly
acquired by the State Government by following due process of law and
after giving complete opportunity to the petitioner. It is stated that the
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acquisition is deemed to be in public interest as it is for redevelopment of
the slum area. It is stated that as the petitioner also has an alternate
remedy of an appeal under Section 17(6) of the Slums Act. It is
contended that the petitioner was well aware that in the year 1979 and in
the year 2011 the said land was notified and declared as a ‘slum’ under
Section 4 and a slum rehabilitation area under Section 3C respectively,
under the Slums Act and that the occupants/slum dwellers had formed a
co-operative society (respondent no.4). It is stated that there are 499
slum dwellers occupying the land and the petitioner being the owner had
failed and neglected to provide basic amenities and sanitation and safety
of the occupants. The society had made representations to the Competent
Authority for acquisition of the said land and for a slum rehabilitation
scheme to be implemented for their benefit. It is stated that accordingly,
an inquiry was conducted by the earlier Competent Authority and an
inquiry report dated 4 August 2012 was submitted to the State to acquire
the said land. The affidavit further states that on 11 March 2011 the land
was declared as ‘slum rehabilitation area’ under Section 3C of the Slums
Act and the same was published in the official gazette of the State
Government as per the notification dated 16 March 2011. It is stated that
in pursuance of a representation from the Society of slum dwellers, as
received by the Competent Authority and Additional Collector
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(Encroachment/removal), Eastern Suburb, Mumbai, requesting to acquire
the said land, a show cause notice dated 17 May 2012 was issued by the
Competent Authority under Section 14(1) of the Slum Act calling upon
the petitioner to show cause as to why the land should not be acquired.
Further a notice dated 8 June 2012 was issued by the Competent
Authority and the Additional Collector (Encroachment/ removal) to the
petitioner, as also to the society under Section 14(1) of the Slums Act,
requesting them to attend the hearing on 29 June 2012 in regard to the
proposed acquisition of the said land. It is stated that accordingly a
hearing was granted to the parties on 29 June 2012 as also on 10 July
2012. The parties had stated that there are litigations pending on some
part of the subject land and this litigation was inter se between the parties
and the State Government was not concerned with the said litigation. It is
stated that in pursuance of the amendment to the Slum Act by the
Maharashtra Act No.XI of 2012 dated 19 March 2012, the State can
consider the representation submitted by the competent Authority as
submitted by the Chief Executive Officer of the SRA, to carry out
development under the Slum Rehabilitation Scheme including the joining
of surrounding area. It is stated that in such a case, the State can acquire
the land under Section 3D(c)(i) of the Slum Act. It is stated that the State
Government accordingly had directed the Chief Executive Officer of SRA
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to forward a proposal for acquisition of the land. It is stated that in the
present case, the SRA has followed the due process of law as
contemplated under Section 14(1) of the Slum Act and based on the
representation of the Society the then Competent Authority on 4 August
2012 submitted its enquiry report to the State Government to acquire the
said land along with the slum plan and joint measurement of the slum
land. It is sated that after following this procedure a notice dated 8 August
2013 was issued by the SRA under Section 14(1) of the Slum Act and the
same was served upon the petitioner as also on the society and the other
concerned parties to attend the hearing on 26 August 2013. Accordingly,
hearing had taken place on 26 August 2013 and 16 September 2013, and
at the said hearing the petitioner had promised to implement the scheme
by itself on the said land. It is stated that however as at no point of time a
scheme for redevelopment was submitted by the petitioner with the SRA
and consequent to such non participation of the petitioner-owner, a
proposal was put up to the State Government on 21 December 2013 for
acquisition of the said land in the interest and welfare slum dwellers and
based on the said report the State Government had acquired the said land
under the Slums Act by following the proper procedure. It is submitted
that this Court has already upheld the constitutional validity of Sections
14 and 17 of the Slums Act and that the Court should not interfere with
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the acquisition notification.
28. Respondent no.4-Society initially was not a party, its
application to intervene being allowed, it was so impleaded, by an order
dated 7 April 2017. The Society has also filed an affidavit-in-opposition.
There are various objections to the petition, as raised by the society. It is
contended that the petitioner has not challenged before the appropriate
authority, the declaration of the said land as a slum rehabilitation area. It
is contended that one Mohammad Yusuf Trust is also asserting ownership
of the land and has approached the Maharashtra Slum Areas (LC R) and
Special Tribunal, Bandra, challenging the said notification dated 16 March
2011 issued under Section 3C(1) of the Slum Act and in that appeal the
petitioner had preferred an application in which one K.Raheja
Corp.Pvt.Ltd. has also intervened. It is stated that the said proceedings
are still sub-judice. Having not challenged the said notification dated 11
March 2011, the petitioner cannot challenge the notice/notification dated
22 December 2016 issued under Section 14(1) of the Slums Act acquiring
the said land. It is next contended that the petitioner has not made any
attempt to redevelop the said land from the year 1979 when the portion of
the property admeasuring 3045.03 sq.meters was declared and notified as
slum by a notification dated 18 January 1979 and on one or the other
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pretext had delayed the development of the land. Only to delay the slum
rehabilitation scheme, the petitioner is now intending to redevelop the
said land. It is contended that the impugned notice dated 22 December
2016 is in fact a notification issued under Section 14(1) of the Slums Act
by which the said land admeasuring 9054 sq.meters has been acquired,
however, deliberately it has been referred to as a notice by the petitioner.
That the impugned notification dated 22 December 2016 has been issued
by the State after hearing the parties at length and after following the
provisions of the Slums Act. The Chief Executive Officer of SRA had
considered the entire case of the petitioner and had furnished a report
dated 12 September 2016. That this report specifically refers to the
opportunity being granted to the petitioner prior to the acquisition of the
land. The petitioner, however, had not submitted a slum rehabilitation
scheme and therefore, the proposal for acquisition of the said land was
further processed. To support these contentions reliance is also placed on
the report dated 4 August 2012 of the Additional Collector (Encroachment
and Removal), Eastern Suburban, report dated 3 October 2012 of the
Government (Housing Board Department, SRA-2) and report dated 21
December 2013 of the Chief Executive Officer, SRA. This affidavit of the
society also sets out the chronology of dates which according to the
society has led to the issuance of the impugned notice/notification dated
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22 December 2016. The case of the society is that the society had
submitted its proposal for acquisition of the said land so as to develop the
same as a Slum Rehabilitation Scheme and out of 499 slum dwellers 92%
slum dwellers had granted their consent in favour of respondent no.4-
society. It is stated that in this regard, report dated 3 January 2015 of the
Chief Executive Officer of the SRA was clear. The society next contends
that in pursuance of the amendment to the Slums Act by Maharashtra Act
no.XI of 2012 if the Chief Executive Officer submits a report in order to
carry out the development under the Slum Rehabilitation Scheme
including the adjoining or surrounding area, the Government is
empowered to acquire the land under Section 3D(c)(i) of the Slum Act on
the basis of such representation of the Chief Executive Officer of the SRA.
It is contended that accordingly the Chief Executive Officer, SRA, had
submitted his report dated 21 December 2013, to the State Government
for acquisition of the said land and the State Government being satisfied
had issued the impugned notice/notification dated 22 December 2016
acquiring the land by virtue of which the land stands vested with the State
Government. It is stated that the State Government is having complete
control over the said land. It is thus submitted that the action of the State
in acquiring the land in question is legal and valid, the petitioner having
neglected the land and the slum dwellers, residing on the said land.
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29. Respondent no.4-Society has placed on record a rejoinder
affidavit to the additional affidavit dated 6 December 2017 filed on behalf
of the petitioner interalia denying the contentions of the petitioner. The
Society reiterates that Section 14 is an independent provision for
acquisition and there is no pre-condition the compliance of which is
required including Section 13 as modified under Chapter IA. It is stated
that in view of the law laid down by the Supreme Court in Murlidhar
Teckchand Gandhi vs. State of Maharashtra 3 it has been held that
Section 14 is an independent provision and the same is not conditional
upon compliance of Section 13 as being asserted by the petitioner. It is
stated that after the additional affidavit dated 6 December 2017 of the
petitioner was tendered, the representatives of the society made inquiries
in the office of SRA and the following facts were revealed:
(a) In the 13th meeting of the SRA held on 1 December 2014 with
the Chief Minister, it was noticed that several slums were not being
cleared by several trusts/private lands and accordingly the SRA was told
to take action under section 3A of Chapter 1-A. The said section provides
for general power of the SRA.
(b) Pursuant thereto a public notice dated 5 October 2015 was
issued by CEO, SRA for general privately owned lands in exercise of power
3 Civil Appeal No. 11077 of 2017, order dt.29/8/2017
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under 1 and 2 of Section 3A.
(c) The notices on which the reliance are placed by the petitioner
being Exhibits A to D are in pursuance of the aforesaid meeting and in
exercise of powers under section 3A of Chapter 1-A. By these notices, the
owners are told to clear the slum within three months failing which
acquisition proceedings would commence.
(d) In respect of the lands which are referred to in the notices at
Exhibits A to D of the petitioner’s additional affidavit, there is no Section
3C notification to invoke the applicability of modified provisions under
Section 3D of Chapter I-A. Thus, these are not the instances where it can
be said that the preferential right was recognized under Section 13(1).
Submissions on behalf of the petitioner:-
30. It is on the backdrop of the above rival pleas, we have heard
the learned Counsel for the parties. Mr.Tulazapurkar, learned Senior
Counsel for the petitioner in support of the petition has made the
following submissions:-
(i) The land in question is a “slum rehabilitation area” in view of
notification dated 16 March 2011 issued under Section 3C(1) of the Slums
Act. On issuance of such declaration the amended provisions of the Slums
Act falling under Chapter I-A have become applicable to the said land, by
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virtue of which, the petitioner being the owner of the said land acquires a
preferential right to redevelop the land as per the provisions of Section
3B(4)(e) and modified Section 13(1) of the Slums Act. The impugned
notification acquiring the said land is thus issued in breach of the
provisions contained in Section 3B(4)(e) and the modified Section 13(1)
of the Slums Act which recognize preferential rights of an owner to
redevelop the slum rehabilitation area.
(ii) Once a notification under Section 3C(1) is published, it
creates a vested right in favour of the owner of the land to have a first
choice to undertake a slum rehabilitation scheme and only on failure to do
so during any period if any so prescribed under Section 3B(4)(e) and
modified Section 13, the State Government can proceed to acquire the
land and not otherwise.
(iii) Under the amended Section 13 of the Slums Act, the SRA is
obliged to offer the land to the owners to come forward for redevelopment
of the same and only on their failure, the land can be handed over to a
third party. Thus the notice of acquisition of the said land has been issued
in breach of preferential right of the petitioner to develop the land and
thus the acquisition is vitiated on this ground as it suffers from lack of
authority and power to acquire. This submission is supported relying on
the decision of the Division Bench in Anil Gulabdas Shah Vs. State of
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Maharashtra (supra).
(iv) The various objections of the petitioner to the acquisition of the
land have not been dealt and disposed of by the State in issuing the
impugned notice dated 22 December 2016. On this count alone, the
acquisition notice ought to be quashed and set aside for want of due
process of law not being followed. There is thus also a breach of
principles of natural justice.
(v) That there is a preferential right to develop the land has also
been accepted by the S.R.A. which is clear from the circular dated 9
November 2015 issued by the S.R.A. which accepts that there exists a
preferential right of the owner to redevelop a slum rehabilitation area.
(vi) The S.R.A.’s contention based on Regulation 33(10) also cannot
be accepted as the contention is based on deeming fiction as contained in
the said D.C. Regulation. It is submitted that in fact, preferential right as
conferred on the owner of the land has come into existence for the first
time only on 11 March 2011 i.e. the date on which the declaration under
Section 3C(1) was issued. It is submitted that until the issuance of the
section 3C(1) declaration, no preferential rights enured to the benefit of
the petitioner. Thus, the SRA based on a deeming fiction contained in a
subordinate legislation [DCR 33(10)] cannot contend that the time to
submit the scheme or evince an intention to redevelop the said land
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commenced in 1997.
(vii) The contention of the SRA on DCR 33(10) also cannot be
accepted for the reason that the said regulation cannot be relied upon for
considering rights guaranteed under a different statute namely the Slum
Act. This on the premise that the provisions of one statutory enactment
cannot be considered or referred to interpret the provisions of another
and/or different statute. The legal principle that cannot be overlooked is
that a deeming fiction cannot be extended beyond what it was intended
for. Deeming fiction in DCR 33(10) can apply to a situation where a right
is claimed under the said Regulation 33(10) itself. This contention is
supported relying on the decision of the Supreme Court in case of State of
Karnataka Ors. vs. State of Tamil Nadu Ors. 4.
(viii) The legal concept of “Slum Rehabilitation Area” is principally
governed and legislated upon under the Slum Act being the principal
legislation concerned with the concept of slum rehabilitation area. The
DCR contains certain other rights and for the purposes of those rights
contain a deeming fiction of slum rehabilitation area. It is impermissible
to rely upon a deeming fiction contained in another statute to interpret
the principal legislation as both the statutes confer different rights and
neither of them can be relied upon to interpret the scope and extent of a
rights granted by the other.
4 (2017) 3 SCC 362
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(ix) The contention of the SRA that even though the notification
under Section 4(1) of the Slum Act was in respect of part of the land, the
entire land had trappings of a slum and thus nothing prevented the
petitioner from submitting a scheme in respect of the entire land also
cannot be accepted. It is submitted that the said contention is erroneous as
for Regulation 33(10) to apply, there must be a notification declaring the
land in question as a slum under Section 4 or under Section 3C (1) of the
Slum Act, as clear from the plain reading of D.C.R. 33(10). This also for
the reason that the declaration under Section 4(1) of the Slum Act does
not bring into existence any preferential right to develop in favour of the
owner. The preferential right comes into existence only on the issuance of
a notification under Section 3C (1) of the Slum Act.
(x) If the declaration under Section 4(1) of the Slum Act was
adequate to consider the said land as a slum rehabilitation area for the
purposes of the regulation 33(10), there was no necessity, at all, for
incorporation of Chapter I-A to the Slum Act and the consequent modified
legislative scheme. The interpretation propounded by the SRA would
render Chapter I-A, otiose and redundant which cannot be the legislative
intent.
(xi) Once a notification under Section 3C (1) is issued, there is a
significantly and materially different legislative scheme which applies and
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operates. The other provisions of Slum Act as specified under Section 3D
are either omitted or substituted and/ or modified are required to be
applied and given effect to. By virtue of this modified provisions,
preferential right is created in favour of an owner only on the issuance of
the notification under Section 3C (1) and not under Section 4(1) of the
Slum Act. Different legal consequences entail on the issuance of a
notification under Section 3C (1) which is necessarily that the declaration
under Section 4(1) stands overridden. A declaration under Section 4(1)
of the Slum Act and a declaration under Section 3C (1) of the Slum Act
are mutually exclusive and cannot co-exist. It thus cannot be contended
that the petitioner was under an obligation to submit a scheme under
Regulation 33(10) despite there being no notification either under Section
4(1) or Section 3C (1) of the Slum Act in respect of 6000 sq. mtrs. of the
said land (66% of the land). In any event the provisions of Regulation
33(10) being subordinate/delegation legislation cannot be relied upon to
interpret the provisions of the Slum Act.
(xii) The submission on behalf of the SRA that an objection to a
show cause notice for acquisition can be made only by filing a scheme for
redevelopment also cannot be accepted. According to the petitioner,
Section 14 of the Slum Act does not specify the form or manner in which
an objection can be made and therefore, there is no requirement to add
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words into the same. It cannot be expected that every person interested is
required to submit a scheme. It would be an absurd interpretation to
contend that merely because the scheme is not submitted, the interested
person’s right to object in that case must be lost. This cannot be the
intention of the legislature. An interpretation which takes away any
person’s valuable right has to be avoided. There may be multiple and
valid reasons why an owner is not in a position to submit a scheme
immediately. The petitioner submits that there may be litigation pending
with regards to the owner of the property. In such situations, taking away
a valuable right of an owner to object is unreasonable. Further the
provision does not require such a course of action.
(xiii) The contention of the SRA that the scheme is the only
method in which an objection can be raised to an acquisition and such a
scheme (obviously a valid scheme) if submitted, nothing further requires
to be heard and decided in the acquisition proceedings, obviously cannot
be the legislative intent. Once a show cause notice is contemplated, the
same will have to culminate into a decision after a hearing to the
concerned parties. It is submitted that in the facts of the present case, the
proceedings commenced with a show cause notice dated 8 August 2013
issued under the proviso to Section 14 (1) of the Slum Act by which the
petitioner was called upon to submit its objections to the acquisition of the
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said land. In answer to the said show cause notice and even thereafter,
the petitioner expressed its willingness to develop/ rehabilitate the said
land on numerous occasions however, the SRA instead of following the
normal procedure of issuance of a show cause notice, calling upon the
petitioner to submit a scheme, as followed in other cases, heard the
objections of the petitioner to the show cause notice under Section 14(1)
on 16 September 2013. Thereafter the State Government passed an order
on 17 November 2016 expressing its decision to acquire the land after a
period of more than three years from the above show cause notice and
despite receiving numerous representations from the petitioner to develop
the said land. It is submitted that in fact, after hearing the objections,
there ought to have been a due consideration of the objections as required
by the statute, before any further action/direction of acquiring the said
land is taken and an order has to be passed and communicated to the
party. Until then, the party cannot be faulted for any inaction on its part
because there cannot be a presumption that the objections will always be
rejected. Objection of an interested person if accepted, cannot result in
closure of the acquisition proceeding and no acquisition notification can
ensue thereafter. Objection is to be treated as rejected on its making. It
would amount to premeditating the issue which is antithesis to the
requirement of fair play and transparency. The petitioner in support of his
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submission, relied on the decision in case of Oryx Fisheries Pvt. Ltd. V/s.
Union of India5.
(xiv) The Honourable Minister /State Government, passed an order
on 17 November, 2016 as per the proviso to section 14 (1) of the Slum Act
expressing its decision to acquire the land. This decision of the State
Government was not communicated to the petitioner at any point of time
and was noticed for the first time only during the course of the hearing of
this petition. As the said order of the State Government was not
communicated to the petitioner, there is no valid order which exists in law
applying the well settled principle that an order which is not
communicated does not exist. The decision of the Supreme Court in
Bachhitar Singh Vs. State of Punjab Anr. 6 and State of W.B. Vs. M.R.
Mondol Anr.7, lays down as a well settled principle of law that the
decisions of the authorities must be communicated to the persons likely to
be affected by it. In absence of such communication, the same would not
assume the character of a binding order. Thus, the order dated 17
November 2017 is non-est.
(xv) Even assuming that an order rejecting the objection of the
petitioner exists and even assuming that the lack of communication does
not affect its existence, the said order is bad in law as it is an order
5 (2010) 13 SCC 427
6 AIR 1963 SC 395
7 (2001) 8 SCC 443
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without any valid reason. It is submitted that though communication of
reasons may not be necessary, however, existence of reasons is imperative.
This submission is supported by relying on the decision of this Court in
Sara Harry D’ Mello Vs. State of Maharashtra Ors.(supra).
(xvi) The only presumption which has been drawn is that the
petitioner did not submit a scheme for redevelopment/rehabilitation of
the land which is also untenable being contrary to the law laid down by
this Court in Anil Gulabdas Shah (supra) which holds that an owner has
a preferential right to develop the Slum Rehabilitation Area. Further the
accepted practice of offering the land to the owner and calling upon him
to submit a scheme has not been followed in the present case and thus,
the order dated 17 November 2017 is bad in law on account of absence of
any reasons.
(xvii) That when Section 13 of the Slum Act uses the words
‘reasonable time’ to come forward with a scheme, it is mandatory to
ascertain and fix a commencing point from which such reasonable time
shall run. It is submitted that ‘reasonable time’ would begin to run from
(a) the SRA offering the land (as is the practice) or; (b) communication of
the order passed after the hearing is conducted in respect of the objections
raised by an interested person to the acquisition of the land, as it would be
only on such communication that an interested owner would get
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knowledge of the objections and his preferential right to develop being
rejected. None of these requirements has been observed in the present
case. It is submitted that this position is clear from the observations of the
Division Bench in the case of Anil Gulabdas Shah (supra) that the SRA
is required to offer the land to the owner for
redevelopment/rehabilitation.
(xviii) It has been a consistent practice of SRA following the dicta
in Anil Gulabdas Shah (supra) to do so by issuance of a show cause
notice calling upon the owner to indicate whether the owner would
implement the Slum Rehabilitation Scheme under modified Section 13(1)
of the Slum Act. Reliance is placed on the notices (Exhibit A to D) of the
affidavit of rejoinder of the petitioner which are issued by the SRA to
owners of the land recognizing their preferential rights. It is thus
submitted that law as laid down by the Division Bench in Anil Gulabdas
Shah (supra) has been accepted, followed and implemented by the SRA.
This conduct and understanding namely offering the land to owners, is
clearly in the nature of contemporanea expositio necessary to be considered
while interpreting the provisions. This submission is supported by the
petitioner relying on the decision in case of K.P. Varghese v/s. Income
Tax Officer8. It is submitted that nothing has happened in the present
case, though internally, the petitioner’s preferential rights to develop the
8 (1981) 4 SCC 173
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said land has been acknowledged and accepted by the respondents which
is clear from the documents i.e. Exhibit Y at pages 125 and 131, Exhibit
AA at pages 138 to 141, Exhibit DD at page 146, Exhibit EE at page 150.
Decisions in Pratapsinh Vallabhdas V/s. State of Maharashtra Ors. 9,
Twin Deccan Builders V/s. State of Maharashtra Ors. 10 and
decision of this Court in Murlidhar Teckchand Gandhi V/s. State of
Maharashtra Ors.11 as relied on behalf of the respondents are not
applicable in the facts of the case as in none of the said decisions the land
in question was declared as a “Slum Rehabilitation Area” as defined in
Section 3C of the Slum Act and therefore, none of these judgments are
dealt with the preferential right of the owner to develop the land under
Section 3B(4)(e) read with modified Section 13(1) of the Slum Act as in
each of the cases, the land was declared as a slum under Section 4 of the
Slum Act whereas the land of the petitioner was notified under Section
3C(1) of the Slum Act. Apart from this, in each of the decisions, there
were several opportunities which were given to the owner to show cause
against the acquisition, make representations and opportunities of
personal hearing were also given which is not so in the petitioner’s case.
In these decisions, there was gross delay and latches on the part of owner
to come forward and re-develop or submit the scheme.
9 2016 SCC Online Bom 11532
10 (2016) 1 Bom CR 328
11 2016(2) Bom CR 539
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(xix) The decision of the Division Bench of this Court in Anil
Gulabdas Shah (supra) is good law. It has not been set aside by the
Supreme Court in Murlidhar Teckchand Gandhi Ors. V/s. State of
Maharashtra (supra). The Supreme Court has not even made a reference
to the decision of this Court in Anil Gulabdas Shah (supra) in Murlidhar
Teckchand Gandhi’s decision. This submission is being supported by
relying on the decisions in Regional Manager Anr. V/s. Pawan
Kumar Dubey12, Union of India v/s. Chajju Ram Ors.13.
(xx) The expression “landholders” appearing in the modified section
13(1) of the Slum Act necessarily would include within its ambit an
owner, because it is only on the ground of a right that the owner can be
subjected to restrictions contained in modified Section 13(2) of the Slum
Act. Reliance is placed on the definition of an ‘owner’ under Section 2 (f)
of the Slum Act as also decision in Richpal Singh Anr. Vs. Desh Raj
Singh Ors.14.
(xxi) That Section 13 of the Slum Act as modified is not an enabling
provision and that it does not contemplate any preferential rights cannot
be accepted. Such an interpretation would be contrary to the provision
and the law laid down by the Division Bench of this Court in case of Anil
Gulabdas Shah (supra).
12 (1976) 3 SCC
13 (2003) 5 SCC 568
14 (1981) 4 SCC 194
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(xxii) The contention of the Society that the Society being an
occupant which had submitted a scheme prior to the petitioner, the
preferential right in favour of the petitioner does not survive is untenable
as it is a settled principle of law that when a scheme is submitted, it is
required to be complete in all aspects. It is not permissible to improve
upon and fill in deficiencies in a scheme as time progresses. In supporting
this submission, reliance is placed on the decision of Division Bench in
Atesham Ahmed Khan Ors. Vs. Lakadawala Developers Pvt. Ltd.
Ors.15. It is submitted that the society’s scheme is admittedly not complete
which is evident from the affidavit in reply dated 9 November 2017 filed
by the society in the Chamber Summons No.232 of 2017.
(xxiii) The contention of the society that once a notification is issued
under Section 14 of the Slum Act, the property vests in the State and in
that event, the only right of the owner is to receive compensation also is
erroneous in as much as the same is contrary to law or in violation of a
statutory right vested in the petitioner. It is submitted that the similar
argument as made by the State Government was rejected in decision of
RBI Employees’ Snehdhara Co-op. Housing Society Ltd. vs. State of
Maharashtra16. It is submitted that a Court can always set aside
acquisition if the same does not conform to law.
15 2011 (3) Mh. L.J. 604
16 2015 (2) Mh.L.J. 899
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(xiv) The contention of the society that Section 14 of the Slum Act
is an independent provision and is not dependent upon any other
provisions of the statute relying on the decision of the Supreme Court in
Murlidhar Teckchand Gandhi Ors. (supra) cannot be accepted
considering the factual situation in the said case, which is completely
different from the present case.
(xxv) In any event the petitioner has submitted scheme in July 2017
which is supported by 313 members out of 499. It is submitted that in
view of circular No.144A dated 9 November 2015, it is not necessary that
70% consent is required as a condition precedent for an owner to develop
the land. Hence, the condition of 70% consent is not applicable at this
stage. It is thus submitted that the petition deserves to be allowed.
Submissions on behalf of SRA:-
31. Mr.Sathe, learned Senior Counsel for the SRA in supporting
the impugned notice/notification dated 22 December 2016 would submit
that by virtue of notification dated 22 December 2016 issued by the State
under Section 14(1) of the Slums Act, the land stood vested in the State
Government and thus the contention of the petitioner that under Section
14 as amended by Chapter I-A, the petitioner has priority to redevelop the
land in question, in view of the decision of this Division Bench in Anil
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Gulabdas Shah (supra), cannot be accepted. It is submitted that the
owner may have right to submit his claim in respect of the land which is
declared as slum under Section 4 or Section 3C of the Slum Act or which
is otherwise a slum within the meaning DCR 33(10) read with Appendix
IV, however, if a scheme for rehabilitation of the slum dwellers is not
submitted by the land owners and the occupants of the slum have moved
a proposal through the Chief Officer of SRA, then there is no requirement
in law to wait for the owner to redevelop the land and to submit a
proposal. The requirement in law is that a scheme is required to be
submitted within a reasonable time. It is submitted that the petitioner at
no point of time had submitted a scheme though the petitioner had
number of occasions to do so. Firstly, the petitioner could have submitted
a scheme after 1997 after coming into force DCR 33(10) which confers
such right upon the occupiers or owner with 70% consent of the
occupiers. Secondly, when the entire area of the land was slum although
not declared in its entirety under Section 4 of the Slums Act as 3045
sq.meters was so declared in the year 1997, however the entire land
qualified as slum as defined under DCR 33(10)and Appendix IV. It is
submitted that surely the petitioner could have submitted a scheme after
declaration under Section 3C was made on 11 March 2011. Fourthly, the
petitioner could have submitted a scheme even after the notice of
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acquisition under Section 14(1) which was first issued to the petitioner on
17 May 2012. Mr.Sathe, learned Senior Counsel for SRA submits that in
declaring the land as slum under Section 4 as well as under Section 3C of
the Slum Act proper procedure was followed, which included notice of
hearing to the owners. It is submitted that further there is a right of
appeal under Section 3C(2) for a person who is aggrieved by such
notification. It is submitted that it was imperative for the petitioner to
challenge the notification declaring the said land as a slum by preferring
an appeal as provided under the said provision.
32. Mr.Sathe, learned Senior Counsel for the SRA would next
submit that the failure of the petitioner to submit a scheme was fatal. It is
submitted that a proposal for redevelopment of slum is required to be in
the form of scheme which is compliant with the provision of DCR 33(10)
and Appendix IV and valid as per the decision of the Supreme Court in the
case “Pramila Suman Singh Vs. State of Maharashtra”17. It is
submitted that such scheme would be on the basis of first come first serve
principle as laid in the decision of this Court in the case “Awdhesh Tiwari
vs. CEO”18. Mr.Sathe referring to the decision of this Court in the case of
“Murlidhar Tekchand Gandhi Vs. State of Maharashtra (supra),
17 2009(2) SCC 729
18 2006(5) BCR 772
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Pratapsinh Shoorji Vallabhdas Vs. State of Maharashtra 19, Twin
Deccan Builders vs. State of Maharashtra 20 would submit that the
petitioner’s contention that the owners have priority to submit a scheme
even after acquisition of land cannot be accepted and such contention
stands rejected as seen from the said decisions. It is submitted that these
decisions have also considered the decision of this Court in Anil Gulabdas
Shah (supra), and have not treated the said judgment as a mandate
considering to grant an inviolable right upon the owner to submit a
scheme even after the acquisition is complete.
33. Mr.Sathe submits that the petitioner’s conduct of merely
writing letters and asserting that the petitioner being owner was willing to
develop the land and not submit a scheme cannot be construed to be
readiness on their part to develop the land. It is submitted that SRA need
not invite owner to make an offer as sought to be contended by the
petitioner relying on the decision in the case Anil Gulabdas Shah (supra)
that such an assertion of the petitioner is erroneous and would be
required to be negated considering the decisions in Pramila Suman Singh
Vs. State of Maharashtra (supra), Murlidhar Tekchand Gandhi Vs. State of
Maharashtra (supra), Pratapsinh Shoorji Vallabhdas Vs. State of
19 Judgment dt.16/9/2016 in O.S.Writ Petition No.2110 of 2014
20 Writ Petition No.747 of 2012, order dated 31/07/2015
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Maharashtra (supra) and Nenshi Monji Vs. State of Maharashtra21
34. Mr.Sathe would next submit that the petitioner had ample
opportunity before the acquisition proposal was sanctioned and procedure
under Section 14(1) of the Slums Act as amended under Chapter I-A was
duly complied with. It is submitted that however, the petitioner having not
submitted a valid proposal, the petitioner cannot assert any right to
challenge the acquisition.
35. Mr. Sathe would next submit that the petitioner’s assertion
about non compliance of the provisions of 13(1) as falling under Chapter
I-A of the Slum Act is misconceived considering the decision of the
Supreme Court in Murlidhar Tekchand Gandhi (supra), which holds that
the acquisition under Section 14 is independent and is not dependent at
all on compliance of Chapter IA, IB, IC or Chapter II, III or IV. Mr.Sathe
referring to the decision in Satyanarayan R. Dubey vs. State of
Maharashtra22, S.Ramkrishna Nayak Vs. State of Maharashtra 23,
S.Ramkrishna Nayak Vs. State of Maharashtra 24 submits that the
remedy of the petitioner on acquisition is only to claim monetary
compensation for acquisition, as the validity of the statutory provision
21 2015(5) Mah.L.J. 397
22 (2007)2 Bom.C.R. 87
23 Writ Petition (Lodg) No.1477 of 2006, order dt.13/9/2006
24 Appeal no.793 of 2006
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relating to acquisition and compensation has already been upheld by this
Court in Sara Harry Demello Vs. State of Maharashtra (supra) and as
held in several other decisions. It is submitted that all the said judgments
and more particularly the decisions of the Supreme Court in Murlidhar
Tekchand Gandhi Vs. State of Maharashtra (supra) and Pratapsinh
Shoorji Vallabhdas Vs. State of Maharashtra (supra) clearly hold that
the acquisition of lands encroached with slums and clearing them and
developing them to provide hygienic and sanitary and standard living
conditions for slum dwellers is larger public interest and for the benefit of
the society. It is submitted that in balancing the larger public interest and
to redevelop the slum scheme, on the land which the petitioner has
neglected, public interest ought to prevail. The writ petition therefore
needs to fail.
Submissions on behalf of respondent No.4-Society:-
36. Mr.Samdani, learned Senior Counsel for the society has
supported the contentions of the SRA. It is submitted that from the year
1979 the petitioner had an opportunity to clear the slum when a
declaration was made in respect of part of the property under Section 4 of
the Slum Act. Thereafter, again from 1997 when DCR 33(10) was
brought into force, no steps were taken by the petitioner to redevelop the
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slum. In supporting this submission, reliance is placed on “Om Sai
Darshan Co-op. Hsg. Society V. State of Maharashtra”25. It is submitted
that the petitioner allowed a declaration to be made under Section 3C
dated 11 March 2011, which had attained finality as it was not
challenged. Even after issuance of the said notification, the petitioner did
not take any steps to clear the slum till the impugned notice/notification
was issued on 22 December 2016. It is submitted that necessary steps to
redevelop the land can be taken only by presenting a scheme under
Regulation 33(10) of the DCR with a pre-condition of the consent of 70%
of the slum dwellers. This submission is supported by placing reliance on
the decision in the case Nenshi Moanji Vs. State of Maharashtra(supra).
It is submitted that merely addressing communications that the petitioners
were desirous to develop the said land was no good so as to contend that
the petitioner as an owner has pre-emptive right to redevelop the land.
This contention is supported by placing reliance on a decision in
Pratapsinh Shoorji Vallabhdas Vs. State of Maharashtra (supra).
37. Mr.Samdani would next submit that reliance of the petitioner
on the reports of the SRA to contend that the petitioner was entitled to an
opportunity to redevelop the said land under Section 13(1) as falling
under Chapter I-A of the Slum Act, cannot be accepted merely because the
25 2006 Vol.108(3) Bom.L.R. 2219
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authority had granted such opportunity in some cases. It is submitted that
Section 13(1) is not attracted in the present case and in any event
interpretation of the statute by the authority is not binding on the Court. It
is next submitted that the petitioner did not challenge the Section 4
notification as also there was no challenge to the notification under
Section 3C of Chapter IA and thus in view of law laid down in the decision
in “Apurva Natvarlal Parikh Vs.The Slum Rehabilitation Authority
Ors.”26, the petitioner is not entitled to challenge the acquisition.
38. In regard to the application of Section 13 under Chapter I-A,
Mr. Samdani submits that it is only an enabling provision which enables
the slum rehabilitation authority to entrust the redevelopment to any
other agency. It is submitted that this provision operates only if the
“landholders”or the “occupants” do not come forward within a
“reasonable time” with a “scheme for redevelopment”. It is submitted that
since the society which is formed by the occupants, was always ready with
a scheme which was with the consent of 92% of slum dwellers, the
provisions of Section 13(1) were not attracted for appointing “any other
agency”. It is submitted that there is nothing in the modified Section 14
as falling under Chapter IA which makes it conditional upon compliance
of Section 13. The scheme of Chapter I-A is more favourable to make it
26 Writ Petition No.1965 of 2013, order dt.15.4.2013
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unconditional and independent as compared to unmodified Section 14. It
is submitted that Section 14 is an independent provision for acquisition of
the land. The contention and challenge of the petitioner that before
issuance of a notification under Section 14 (1), the petitioner has pre-
emptory right under Section 13(1) to re-develop the land and rehabilitate
the slum dwellers cannot be accepted in view of the law laid down by the
Supreme Court in “Murlidhar Teckchand Gandhi V/s. State of
Maharashtra Ors.” (supra). The contention of the petitioner that there
are no reasons recorded by the State in passing the order under Section 14
dated 22 December 2016 cannot be accepted, as there is already a formal
order on record for issuance of a notification. This established that a
proper procedure was followed by the State considering the law as laid
down in Sara Harry D’Mello Vs. State of Maharashtra Ors. (supra).
39. Mr.Samdani submits that reliance of the petitioner on the
decision in Anil Gulabdas Shah (supra) is misplaced as the said decision
was set aside by the Supreme Court by consent of the parties. It is
submitted that the Division Bench in the case Pratapsinh Shoorji
Vallabhdas Vs. State of Maharashtra(supra) had upheld the correctness
of acquisition after noticing the judgment in the case Anil Gulabdas Shah
(supra) and has held that mere writing of communications without
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presenting a scheme, no right can be claimed. It is submitted that in view
of the law laid down by the Supreme Court in Murlidhar Teckchand
Gandhi V/s. State of Maharashtra Ors. (supra), it cannot be argued
that the compliance of Section 13 is a pre-condition for acquisition under
Section 14. It is submitted that statutorily there is no distinction in Section
14 under Chapter V and modified Section 14 under Chapter IA.
40. Mr.Samdani would submit that prior to the decision of the
Supreme Court in Murlidhar Teckchand Gandhi V/s. State of
Maharashtra Ors. (supra) following the decisions in “Ramkali
S.Kushawaha Ors. Vs. Deputy Collector (ENC) Ors. 27, Maruti
Mane Anr. Vs. Ramkali S.Kushawaha Ors. 28, the Court had taken a
view that compliance of Sections 5, 12, 13 was a pre-condition to the
acquisition under Section 14, in the absence of Section 3C notification
under Chapter IA of the Slum Act. It is submitted that the law as laid
down in these decision is no longer good law in view of the decision of the
Supreme Court in Murlidhar Teckchand Gandhi V/s. State of
Maharashtra Ors. (supra). Mr.Samdani would submit that Chapter I-A
does away with several provisions before acquisition under Section 14. It
is submitted that there is a material difference between Section 13(1)
27 (2004)3 Bom.C.R. 14
28 Appeal no.324 of 20014 in WP 608/04.
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under Chapter IV and Section 13(1) under Chapter I-A. This is for the
reason that in the unmodified section the commencement of development
is contemplated by the “owner” and the competent authority can
determine “to develop it by itself at its cost”, while under the modified
provision there is a clear departure and it provides for ‘landholders’ or
‘occupants’ and any other agency. Thus, there is no material difference in
the language of section 14 under Chapter V or under Chapter I-A except
the change in the authority i.e. from Competent Authority to Chief
Execution Officer.
41. Mr.Samdani would submit that on issuance of a notification under
Section 14 the land has vested in the State and the only right the owner
has, is a right of compensation. It is submitted that acquisition under
Section 14 cannot be equated with the acquisition under the Land
Acquisition Act. As the acquisition under the Slum Act is the acquisition
under the Special Statute, it is welfare legislation to improve the standard
and quality of living of the slum dwellers and is in larger public interest.
In supporting this submission Mr.Samdani relied on the case
Satyanarayan Dube vs. State of Maharashtra (supra), S.Ramkrishna
Nayak Vs. State of Maharashtra (supra), Girnar Vs. State of
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Maharashtra29, Manohar Joshi Vs. State of Maharashtra30
Reasons and Conclusion
41A. Having heard the learned Counsel for the parties as also
having perused the record, we undertake the following discussion.
Statutory Ambit:
42. It would be apposite to consider the statutory background in
which the controversy in the petition would fall. There are too many
causes which are attributable for creation of slums in urban areas. Rapid
growth of industries resulted in mass migration of population from rural
areas to the urban centres. This for the reason that places outside the
urban areas were not proving sufficient and fulfilling the requirements of
the means of livelihood, which were primarily depending on agriculture
and other allied activities. This resulted into overcrowding of the urban
areas coupled with lack of housing facilities, which created development
of large slums in the urban centers and heavily so in and around Greater
Mumbai as also other urban areas in Maharashtra. The development in
urban activities and business did not find a corresponding development in
the housing sector, much less a provision for a decent housing for such
large migrant population. Also lack of planning by the concerned
authorities to cater to the housing requirements, the neglect of the
29 (2011)3 SCC 1
30 (2012)3 SCC 619
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authorities to safeguard open public lands from encroachment as also the
apathy of the private landlords to prevent encroachment and/or to neglect
the appropriate use of land so as to prevent them being converted as
slums by the occupants, added to the urban problems. Consequently in the
absence of affordable public and private housing, large population was
compelled to reside in slums in unhealthy and unhygienic conditions. It is
difficult to visualize the number of slums which are created on public and
private lands in the city of Mumbai, where land is limited. As the history
unfolds the problems are not recent. They are further aggravated and have
become complex and more particularly due to variety of interests playing
active roles in slum projects, rehabilitation projects in anticipation of
monetary gains. This has been the general scenario in such litigation, with
which the Court is frequently confronted.
43. We have one of the most ideal Constitution providing for a
variety of fundamental and other legal rights guaranteed to our citizens.
Part III of the Constitution guarantees fundamental rights, under which
Article 21 confers right to livelihood, which has been interpreted to mean,
that a person is entitled to live a life of dignity and not just an animal life.
Further the Directive Principles of State Policy as contained in Part IV of
the Constitution, under Article 38 and 39 provide for the welfare of the
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people and the policy to be followed by the State. Article 43 and 47 are
also relevant when it comes to the obligations of the State to secure
adequate standard of living and improvement of public health.
44. Undoubtedly, slums had created menace to the safety, health
and morals of the inhabitants. There were multiple municipal laws in
operation, there was no uniformity in the provisions of these enactments
as also the provisions were not sufficient to improve the situation. It is for
this reason the legislature thought it appropriate to enact a special law to
deal with the improvement clearance and development of slum areas. The
Slum Act was accordingly enacted interalia to make better provision for
the improvement and clearance of slum areas in the State, for
redevelopment as also for the protection of occupiers from eviction and
distress warrants. The Slum Act was brought into force with effect from 11
August 1971. This legislation casts onerous duties on the authorities.
How far the same are discharged and whether at all effectively to achieve
the object of the legislation, are larger issues which all the concerned need
to ponder.
45. In order that the contentions which are presented with some
perspicacity are apprehended in its proper prospective, a conspectus of the
essential provisions of the Slum Act is necessary. The terms ‘Chief
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Executive Officer’, Competent Authority’, ‘occupier’, ‘owner’, ‘slum
clearance’, ‘slum rehabilitation area’, ‘Slum Rehabilitation Scheme’ ‘Slum
Rehabilitation Work’, ‘works of improvement’ as defined under Section 2
(ba), (c) (e), (f), (h-b), (h-d), (h-e), (h-j) respectively would read thus:-
“Section 2(b)(a) ‘Chief Executive Officer’ means a Chief Executive
Officer of the Slum Rehabilitation Authority appointed under sub-section
(2) of Section 3A;
Section 2(c) ‘Competent Authority’ means a person or body appointed to
be the Competent Authority under Section 3Section 2(e) “occupier” includes, –
(i) any person who for the time being is paying or is liable to pay to
the owner the rent or any portion of the rent of the land or building in
respect of which such rent is paid or is payable;
(ii) an owner in occupation of, or otherwise using, his land or
building;
(iii) a rent-free tenant of any land or building;
(iv) a licensee in occupation of any land or building; and
(v) any person who is liable to pay to the owner damages for the use
and occupation of any land or building;
(f) “owner”, when used with reference to any building or land, means
the person who receives or is entitled to receive the rent of the building or
land, if the building or land were let, and includes, –
(i) an agent or trustee who receives such rent on account of the
owner;
(ii) an agent or trustee who receives the rent of, or is entrusted with, or
concerned for, any building or land devoted to religious or charitable
purpose;
(iii) a receiver, sequestrator or manager appointed by a court of
competent jurisdiction to have the charge of or to exercise the rights of
owner of the said building or land; and
(iv) a mortgagee-in-possession; [but does not include, a slumlord;]
… … …
(ga) “slum area” means any area declared as such by the Competent
Authority under sub-section (1) of section 4 and includes any area deemed
to be a slum area under section 4A;
(h) “slum clearance” means the clearance of any slum area by the
demolition and removal of building therefrom;
… … ..
(h-b) “Slum Rehabilitation Area” means a slum rehabilitation area,
declared as such under sub-section (l) of section 3C by the Competent
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Authority in pursuance of the Slum Rehabilitation scheme notified under
section 3B.”
… … …
(h-d) “Slum Rehabilitation Scheme” means the slum Rehabilitation
Scheme notified under Section 3B;
(h-e) “Slum Rehabilitation Work” means the work relating to demolition
of any structure or any part thereof in slum area or in Slum Rehabilitation
Area, and construction of a new building thereon;
… …. …
(j) “works of improvement” includes in relation to any building in a slum
area the execution of any one or more of the following works, namely:-
(i) repairs which are necessary;
(ii) structural alterations;
(iii) provision of light points, water taps and bathing places;
(iv) construction of drains, open or covered;
(v) provision for latrines, including conversion of dry
latrines into flush latrines;
(vi) provision of additional or improved fixtures or fittings;
(vii) opening up or paving of courtyards;
(viii) construction of passages or roads;
(ix) any other work including the demolition of any building or
any part thereof which in the opinion of the Competent
Authority is necessary for executing any of the works
specified above.”
46. By Maharashtra Ordinance No.14 of 1995 Chapter I-A titled
as “Slum Rehabilitation Scheme” came to be incorporated. The Ordinance
was brought into effect from 24 October 1995, which was repealed by
Maharashtra Act No.IV of 1996. The following is the Statement of object
and reasons of Maharashtra Act no.4 of 1996.
“STATEMENT OF OBJECTS AND REASONS
By the Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) (Amendment) Act, 1995 (Mah.IV of 1996)
the Government of Maharashtra has amended the Maharashtra
Slum Areas (Improvement, Clearance and Redevelopment) Act
1971, with a view to provide for appointment of Slum
Rehabilitation Authorities to look after every aspect of the problem
of slum rehabilitation within the area of its operation including
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and implementation of the Scheme by the Authority in the event of
non-participation of the slum dwellers and the allotment of houses
constructed under the Scheme to the slum dwellers, free of cost.
2. Although the Slum Rehabilitation Authority for Brihan
Mumbai has been appointed and has started functioning
Government considers it expedient to make every Slum
Rehabilitation Authority a body corporate, so as to enable every
Slum Rehabilitation Authority to function more effectively and
expeditiously.
3. Hence, this Bill.”
47. By the said amending Act No. 4 of 1996 Chapter I-A came to
be inserted providing for a “Slum Rehabilitation Scheme.” Sections 3-A to
3-W were inserted. Some of the relevant provisions can be discussed.
Section 3-A provides for appointment of a Slum Rehabilitation Authority,
for implementing a slum rehabilitation scheme. Section 3B provides for
preparation of a general slum rehabilitation scheme for areas specified
under sub-section (1) of Section 3A. Section 3C provides for declaration of
a slum rehabilitation area. Section 13 which dealt with the ‘power of the
competent authority to redevelop clearance area’ came to be substituted in
its application to Chapter I-A to provide for ‘Power of Slum Rehabilitation
Authority to develop Slum Rehabilitation Area”. Section 14 which deals
with the “power of the State Government to acquire land” also came to be
amended in its application to Chapter I-A, to enable ‘the slum
rehabilitation authority to carry out developments under the slum
rehabilitation scheme in any slum rehabilitation area.’ section 23 and
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section 24 and 47 also came to be substituted and further section 3-E to
3-W came to be inserted.
48. It is not in dispute that the provisions of the amended
Chapter I-A of the Slum Act are applicable to the present case in view of
the notification dated 11 March 2011 issued by the SRA declaring the
subject land as a ‘slum rehabilitation area’ under section 3-C (1) of the
Slums Act. As the parties have extensively advanced submissions on this
provision as contained in this chapter, it would be appropriate to note
some of the provisions in Chapter I-A which reads thus:-
Section 3A: Slum Rehabilitation Authority for implementing Slum
Rehabilitation Scheme.
(1) Notwithstanding anything contained in the foregoing
provision, the State Government may, by notification in the
Official Gazettee, appoint an authority to be called the Slum
Rehabilitation Authority for such area or areas as may be
specified in the notification; and different authorities may be
appointed for different areas.
Section 3B: Slum Rehabilitation Schemes
(1) The State Government, or the Slum Rehabilitation Authority
concerned with the previous sanction of the State Government,
shall, prepare a general Slum Rehabilitation Scheme for the
areas specified under sub-section (1) of Section 3A, for
Rehabilitation of slums and hutment colonies in such areas.
(2) The General Slum Rehabilitation Scheme prepared under
sub-section (1) shall be published in the Official Gazette, by the
State Government or the concerned Slum Rehabilitation
Authority, as the case may be, as the Provisional Slum
Rehabilitation Scheme for the area specified under section
3A(1), for the information of general public, inviting objections
and suggestions, giving reasonable period of not less than thirty-
days for submission of objections and suggestions, if any, in
respect of the said Scheme.
(3) The Chief Executive Officer of the Slum Rehabilitation
Authority shall, consider the objections and suggestions, if any,
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received within the specified period in respect of the said
Provisional Scheme and after considering the same, and after
carrying out such modifications as deemed fit or necessary,
finally publish the said scheme, with the approval of the State
Government or, as the case may be, the Slum Rehabilitation
Authority in the Official Gazette, as the Slum Rehabilitation
Scheme.
(4) The Slum Rehabilitation Scheme so notified under sub-
section (3) shall, generally lay down the parameters for
declaration of any area as the slum rehabilitation area and
indicate the manner in which rehabilitation of the area declared
as the slum rehabilitation area shall be carried out. In particular,
it shall provide for all or any of the following matters, that is to
say, –
(a) the parameters or guidelines for declaration of an
area as the slum rehabilitation area;
(b) basic and essential parameters of development of
slum rehabilitation area under the Slum Rehabilitation Scheme;
(c) provision for obligatory participation of the
landholders and occupants of the area declared as the slum
rehabilitation area under the Slum Rehabilitation Scheme in the
implementation of the Scheme;
(d) provision relating to transit accommodation
pending development of the slum rehabilitation area and
allotment of tenements on development to the occupants of such
area, free of costs;
(e) scheme for development of the slum rehabilitation
areas under the Slum Rehabilitation Scheme by the landholders
and occupants by themselves or through a developer and the
terms and conditions of such development; and the option
available to the Slum Rehabilitation Authority for taking up such
development in the event of non-participation of the landholders
or occupants;
(f) provision regarding sanction of Floor Space Index
and transfer of development rights, if any, to be made available
to the developer for development of the slum rehabilitation area
under the Slum Rehabilitation Scheme;
(g) provision regarding non-transferable nature of
tenements for a certain period, etc.
Section 3C.Declaration of a slum rehabilitation area.
(1) As soon as may be after the publication of the Slum
Rehabilitation Scheme, [the Chief Executive Officer] on being
satisfied that circumstances in respect of any area, justifying its
declaration as slum rehabilitation area under the said scheme,
may by an order published in the Official Gazette, declare such
area to be a “slum rehabilitation area”. The order declaring
slum rehabilitation area (hereinafter referred to as “the slum
rehabilitation order”), shall also be given wide publicity in such
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manner as may be specified by [the Slum Rehabilitation
Authority].
(2) Any person aggrieved by the slum rehabilitation order
may, within four weeks of the publication of such order prefer an
appeal to the Special Tribunal; and the decision of the Special
Tribunal shall be final.
(3) On the completion of the Slum Rehabilitation Scheme,
the Slum Rehabilitation Area shall cease to be such area.
Section 3D. Application of other chapters of this Act to Slum
Rehabilitation area with modification.
On publication of the Slum Rehabilitation scheme under sub-
section (1)of section 3B, the provisions of other Chapters; of this
Act shall apply to any area declared as the slum rehabilitation
area subject to the following modifications namely
(a) Chapters II and III shall be omitted.
(b) in Chapter IV
(i) Section 11 shall be omitted.
(ii) in section 12-
(A) for sub-section (1), the following sub-section shall be
substituted namely:
“(1) As soon as may be after the Chief Executive Officer has
declared any slum area to be a slum rehabilitation area, he shall
make a clearance order in relation to that area ordering the
demolition of each of the buildings specified therein and
requiring each such building to be vacated within such time as
may be specified in the clearance order.”
(B) sub-sections (2) and (3) shall be omitted.
(C) for sub section (4) the following sub-section shall be
substituted namely-
(4) Any person aggrieved by the clearanace order may, within
four weeks of the publications of such order prefer an appeal to
the Special Tribunal; and the decision of the Special Tribunal
shall be final.”
(D) in sub section (5) for the word “Tribunal” in both the
places where it occurs the words “Special Tribunal” shall be
substituted.
(E) in sub-section (7), for the words “Competent Authority” the
words “Chief Executive Officer” shall be substituted.
(F) In sub-section (8) for the words “Competent Authority” the
words “Chief Executive officer” shall be substituted;
(G) In sub-section (9) the words “Competent Authority”
wherever they occur the words “Chief Executive Officer” shall be
substituted;
(H)In sub-section (10)-
(a) for the words “Competent Authority” the words “Slum
Rehabilitation Authority” shall be substituted;
(b) In the proviso-
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(i) for the words “Competent Authority” the words “Chief
Executive Officer” shall be substituted.
(ii) for the word “Tribunal” the words “Special Tribunal” shall be
substituted.
(iii) for section 13, the following section shall be substituted
namely-
Section 13 Power of Slum Rehabilitation Authority to
develop Slum Rehabilitation Area
13 (1) Notwithstanding anything contained in sub section (1) of
section 12,the Slum ‘Rehabilitation Authority” may, after any
area is declared as the Slum Rehabilitation Area if the
landholders or occupants of such area do not come forward
within a reasonable time with a scheme for redevelopment of
such land by order determine to redevelop such land by
entrusting it to any agency for the purpose.
(2) Whereon declaration of any area as a slum rehabilitation
area the slum rehabilitation authority is satisfied that the land in
the slum rehabilitation area has been or is being developed by
the owner in contravention of the plans duly approved or any
restrictions or conditions imposed under sub-section (10) of
section 12 or has not been developed within the time if any
specified under such conditions it may by order determine to
develop the land by entrusting it to any agency recognized by it
for the purpose.”
49. As noted above, for the implementation of the slum
rehabilitation scheme by the aforesaid amending Act Section 14 falling in
Chapter V of the Slums Act which stipulates the power of the State
Government to acquire land also came to be amended in the following
terms in its application to Chapter I-A :-
“3D (c) in Chapter V:-
(i) In section 14, in sub-section (1),-
(A) for the portion beginning with the words “Where on any
representation” and ending with the words “clearance area”, the
following portion shall be substituted, namely:-
“Where on any representation from the Chief Executive
Officer it appears to the State Government that, in order to::: Uploaded on – 13/06/2018 15/06/2018 01:25:59 :::
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development under the Slum Rehabilitation Scheme in any Slum
Rehabilitation Area”;
(B) after the proviso, the following proviso shall be added
namely:-
“Provided further that, the State Government may
delegate its powers under this sub-section to any officer not
below the rank of Commissioner.”;
(ii) in section 15,-
(A) for sub-section (3), the following sub-section shall be
substituted, namely:-
“(3) Where the land has been acquired for the Slum
Rehabilitation Authority, the State Government shall, after it has
taken possession thereof, by notification in the Official Gazette,
upon such conditions as may be agreed upon between
Government and Slum Rehabilitation Authority, transfer the land
to the Slum Rehabilitation Authority and thereupon the Slum
Rehabilitation Authority may entrust, in accordance with the
provisions of section 3B(4), the work of development of such
area to any other agency as provided in sub-section (1) of
section 13, or to a Co-operative Housing Society of the occupants
of such rehabilitation area or occupants of any other area which
has been declared as Slum Rehabilitation Area.”
(B) for sub-section (4), the following sub-section shall
be substituted, namely:-
“(4) The Slum Rehabilitation Authority may, subject to
such terms and conditions as the State Government considers
expedient for securing the purposes of this Act, transfer by way
of lease such land to the Co-operative Housing Societies of such
occupants.”;”
50. Section 14 as it originally stood outside the amendment
under Chapter I-A, reads as under :
CHAPTER V
ACQUISITION OF LANDSection 14:
Power of State Government to acquire land
(1) Where on any representation from the competent authority
it appears to the State Government that, in order to enable the
Authority to execute any work of improvement or to redevelop any
slum area or any structure in such area, it is necessary that such
area, or any land, within adjoining or surrounded by any such area
should be acquired, the State Government may acquire the land by
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this section:
(Provided that, before publishing such notice, the State
Government, or as the case may be the competent Authority may
call upon by notice the owner of, or any other person who in its or
his opinion may be interested in, such land to show cause in
writing why the land should not be acquired with reasons therefor,
to the competent authority within the period specified in the
notice; and the competent authority shall, with all reasonable
despatch, forward any objections so submitted together with his
report in respect thereof to the State Government and on
considering the report and the objections, if any, the State
Government may pass such order as it deems fit.
(1A). The acquisition of land for any purpose mentioned in sub-
section (1) shall be deemed to be a public purpose.
(2) When a notice as aforesaid is published in the Official
Gazette the land shall, on and from the date on which the notice is
so published vest absolutely in the State Government free from all
encumbrances. ”
51. A cumulative reading of the above provisions makes it clear
that the object and intention of the legislature in amending the Slums Act
by Act No.IV of 1996 was to achieve the object of the Slum Rehabilitation
Authority to look into every aspect of the problems of slum rehabilitation
and as permissible under the provisions of the Act achieve rehabilitation of
the slum-dwellers with utmost expediency. It is for this purpose section 3B
provides for preparation of a ‘general slum rehabilitation scheme’ by a
notification to be issued for areas as specified in sub-section (4) of section
3B, for rehabilitation of slums, hutments colonies in such areas. Sub-
section 4 of section 3-B provides that slum rehabilitation scheme so
notified under sub-section (3) shall generally lay down the parameters for
declaration of any area as slum rehabilitation area and indicate the
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manner in which rehabilitation of the area declared as a slum
rehabilitation area shall be carried out and in particular as provided in
clauses (a) to (g). What is important is that when a slum rehabilitation
scheme is so notified under sub-section 3B, it is incumbent for the
authority to provide a scheme for development of a slum rehabilitation
area under the slum rehabilitation scheme by the landholders and
occupants by themselves or through a developer as provided in sub-clause
(e) of clause 4 which reads thus :
Section 3B(4)(e) “Scheme for development of the slum
rehabilitation area under the slum rehabilitation scheme by the
landholders and occupants by themselves or through a developer
and the terms and conditions of such development; and the option
available to the slum rehabilitation authority for taking up such
development in the event of non-participation of the landholders
or occupants.
52. The next provision being Section 3C is material in the
context of the present case, in view of the declaration of the said land, as a
slum rehabilitation area under this provision, by the notification dated 11
March 2011. This provision postulates that after publication of the Slum
Rehabilitation Scheme, the Chief Executive officer on being satisfied that,
in respect of any area justifying its declaration as slum rehabilitation area
under the said scheme, may by an order published in the official gazette
declare such area to be slum rehabilitation area by an order, to be called
as a ‘slum rehabilitation order. Further any person aggrieved by a slum
rehabilitation order, would be entitled to prefer an appeal within four
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weeks of publication of such order to be filed before a Special Tribunal,
whose decision on the appeal shall be final as prescribed by sub-section
(2) of section 3C.
Thus, the relevant statutory scheme depicted by the above
provisions appears to be quite clear which may be summarized provision
wise hereunder :
Section 3A: Appointment of an authority to be called as slum
rehabilitation authority’ for such areas or areas as may be specified in the
notification and different authorities may be appointed for different area.
Section 3B : Preparation of a general slum rehabilitation
scheme by the State Government or SRA for rehabilitation of slum and
hutment colonies in such areas. As per sub-section 4 the slum
rehabilitation scheme so notified under sub-section (3) shall generally lay
down the parameters for declaration any areas as slum rehabilitation area
and indicate the manner in which rehabilitation of the area declared as a
slum rehabilitation area shall be carried out, which shall provide for all or
any of the matters under clause (a) to clause (g) of sub-section (4).
Clause (e) permits rehabilitation to be undertaken under a scheme for
development of the slum rehabilitation area under the slum rehabilitation
scheme by the “landholders and occupants by themselves or through a
developer; and the terms and conditions of the such development and
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the option available to the SRA for taking up such development in the
event of non-participation of the landholders or occupants.
Section 3C : After publication of slum rehabilitation scheme
as per section 3-B, the Chief Executive Officer on being satisfied that
circumstances in respect of any area, justifying its declaration as slum
rehabilitation area under the said scheme may declare such area to be a
slum rehabilitation area by an order to be published in the official gazette.
A remedy of an appeal is made available to the person aggrieved by such
order (slum rehabilitation order) before the Special Tribunal whose
decision shall be final.
Section 3-D: provides for application for such other chapters
of the slum Act to “slum rehabilitation area:” (as notified under section
3C) with modification as provided therein,
53. As clearly seen from these amended provisions, the
modification of the statutory scheme is significant, qua the ‘slum
rehabilitation area’, as declared under section 3C. The application of
chapter II and III stand omitted. In chapter IV, section 11 stands omitted.
Section 12 which in its original form provides for a “Clearance Order” to
be passed by the Competent Authority, as a sequel to the power being
exercised by the Competent Authority, to declare a ‘slum area’ to be a
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clearance area. This provisions stands substituted to provide that as soon
as the Chief Executive Officer has declared any slum area to be a slum
rehabilitation area under Section 3C, the Chief Executive officer shall
make a clearance order in relation to that area, ordering the demolition of
each of the buildings specified therein and requiring each such buildings
to be vacated as per the clearance order. Sub-Section (4) of this provision
provides for an appeal to be filed before the special tribunal by a person
who is aggrieved by the clearance order.
54. Section 13 as substituted is an extensive provision providing
for the power of the SRA to develop slum rehabilitation area. Sub-section
(1) of section 13 that provides in the event the landholders or occupants
of such area, do not come forward within a reasonable time, with a
scheme for re-development of such land, then in such event the SRA is
empowered to pass an order and determine to re-develop such land by
entrusting it to any agency. Similarly sub-section (2) provides that if the
redevelopment is being undertaken by the owner in contravention of the
plans duly approved or any restrictions or conditions imposed under sub
section (10) of Section 12 or the same is not developed in time, if any
specified under such conditions, the SRA may, by order determine to
develop the land by entrusting it to any agency recognized by it, however
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subject to a prior opportunity to the owner of showing cause against such
order to be passed.
55. Section 14 as modified applies for acquisition for land to
enable the SRA to carry out development under the Slum Rehabilitation
Scheme in any slum rehabilitation area. Similarly section 15 which deals
with the power of the Collector to require person in possession of land to
surrender or deliver possession to him stands modified to the extent sub-
section (3) stands substituted in its application to transfer the land
acquired to the SRA.
56. A combined reading of the various provisions as falling under
Chapter I-A as incorporated by the said amendment clearly demonstrates
a distinct and independent legislative scheme when it comes to land which
has been declared as a slum rehabilitation area under Section 3C of the
Slum Act.
57. As the focus of the arguments of the learned counsel for the
parties is primarily on Section 13 as falling under Chapter I-A, we discuss
the specific effect and the purport of this provision. Section 13 as falling in
Chapter I-A begins with the words “notwithstanding anything contained in
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sub-section 10 of section 12.” As noted above section 12 (1) as substituted
for the purposes of Chapter I-A provides for a ‘clearance order’ to be
passed by the Chief Executive Officer after the Chief Executive Officer has
declared any slum area to be a slum rehabilitation area. Sub section (10)
of section 12 which stands not disturbed by the amendment as brought
about under Chapter I-A, recognizes the right of the owner of the land to
which the clearance order applies, to redevelop the land in accordance
with plans approved by the competent authority and subject to such
restrictions and conditions including the condition with regard to the time
within which the redevelopment shall be completed. Thus the
consequence brought about by section 13 as falling in chapter I-A, is two-
fold firstly it recognizes the pre-emptory right of the owner to redevelop
the land as provided under sub-section (10) of Section 12 and secondly
without disturbing the general right to redevelop the land it nevertheless
provides that if the landholders or occupants of the of such area do not
come forward, within a reasonable time with a scheme for re-development
of such land, then the SRA by an order determine to redevelop the land
(which is declared as a slum rehabilitation area) by entrusting it to any
agency. However, this only on the condition as specifically postulated by
sub-section (1) and sub section (2) namely if the landholders and
occupants do not come forward within a reasonable time, with a scheme
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for re-development of such land. In fact sub-section (2) of section 13 is a
complete legislative recognition of what is stipulated by the provisions of
section 3B(4)(e) read with section 12(10) and section 13 sub-section (1)
namely that for a slum rehabilitation scheme, notified under section 3B
the scheme would contemplate development of slum rehabilitation area
by the landholders and occupants by themselves or through a developer
and the terms and conditions of such development (sub-clause (e) of
section 3B (4)). Thus, once the land is declared as a slum rehabilitation
area, the said statutory scheme/provisions as discussed, above recognizes
the participation of owners/landholders and occupants in the
redevelopment of such land. It can certainly be said that once such a right
as created by law (section 3B(4)(c) and (e) and section 13 (1)) an
opportunity in that terms is required to be granted to the owners,
occupants and/or landholders, without which the provision as made in the
statute for such rights would be meaningless. When the provisions uses
the word ‘do not come forward within a reasonable time’ would surely
mean that the SRA is required to set down the time limit by calling upon
the landholder to come forward with a scheme so as to undertake
redevelopment. In the present case neither the SRA or the State
Government put the petitioner to such a notice, nor the petitioner was put
to a notice that a scheme not been submitted by it would be a
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circumstance which would be taken against him to acquire the land,
which was the only reason for which the land is acquired. Such notice in
our opinion was imperative as there was no reason for the petitioner to be
aware considering the plain reading of section 14(1) of the Slum Act that
this would be the primary reason for which the land of the petitioner
would be acquired, namely non coming forward with a scheme, though
there was complete willingness of the petitioner to undertake
redevelopment as echoed in several letters, which had fallen to the deaf
ears of the authorities.
58. While referring to Section 13(1) we have referred to the land
owners as a category along with landholders and occupants, as we are of
the clear opinion that when section 13 (1) as falling under Chapter I-A of
the Slums Act uses the word “landholder” it would include within its
meaning the owner of the land. This is for the reason that it cannot be said
that the owner cannot be a ‘landholder.’ There is no legislative intent to
exclude the owner of the land when the words ‘landholder’ and ‘occupant’
are used. (See: Richpal Singh vs Deshraj Singh(supra)) It is only that
on the grant of a right that the owner can be subjected to restrictions as
contained in section 13 (2) of the Slums Act. Hence, we are not inclined to
accept the argument as made on behalf of the Society that the principle of
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ejusdem generis be applied in interpreting the words ‘landholders’ and
‘occupants’ as referred in Section 13(1) to exclude owners of land.
59. That a preferential right for redevelopment is so vested in the
owners/landholders and/or occupants is further clear in view of a
conditional power/authority created with the SRA to undertake
redevelopment of the slum rehabilitation area in a two-fold manner firstly
by exercising power under sub-section (1) or (2) of Section 13 which is to
re-develop the land by entrusting it to any agency on a failure of the
landholder or the occupant in not coming forward within a reasonable
time with a scheme for re-development; and when application of Section
13(1) and (2) do not fetch any result by re-developing or carrying out
development under the slum rehabilitation scheme in any slum
rehabilitation area by resorting to acquisition of the land under section 14
as applicable with modification under Chapter I-A. It is thus clear that the
object and purpose which the provisions of Section 3B(4)(e), Section
13(1) and (2), Section 12(10) and Section 14 ( as modified by under
Chapter I-A ) is to achieve and bring about an effective redevelopment of
slum rehabilitation area.
Thus, from the legislative scheme of the amended provisions
it can be clearly inferred that the rights so conferred under these
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provisions on the owner/landholder/occupant cannot be usurped directly
by putting into operation the acquisition machinery, simply because such
power exist on the statute book. The exercise of such power within the
scheme of Chapter I-A is required to be resorted by due adherence to the
said provisions which have created and recognized the legitimate rights in
the owners, landholders and occupants to undertake re-development. The
power to acquire land is also required to be exercised in a fair manner and
certainly in the context of the present statutory scheme, when the object
and purpose for which acquisition is to be undertaken can be achieved by
other methods and for which the statute has made the requisite provision
for achievement of such purpose.
60. Thus while considering the action of acquisition of land,
under the powers as conferred on the State government under section 14
in its application to Chapter I-A (being exercised in relation to the land
which is notified as a slum rehabilitation area under section 3-C), the
decision to acquire cannot be read beyond the context of the applicability
of the provisions of Section 3A,3B,3C, Section 12, Section 13 and Section
14, as falling under Chapter I-A of the Slum Act. The reason being the
decision to acquire the land would have a direct nexus and relation to the
conferring of an opportunity on such persons to first undertake re-
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development of land as Section 3(B)(4) (c)and(e) read with section 13(1)
and (2) as also sub-section 10 of section 12 (if so made applicable, though
this sub-section stands outside Chapter I-A) and on a failure to avail this
opportunity by the landholders or owners or occupants to abide their
obligations under the said statutory provisions, resort to acquisition of
land under section 14. This statutory consequence is clear from a plain
reading of the substituted sub-section (1) of section 14 which requires that
the State Government is so satisfied on a representation being so made to
it by the competent authority, that a situation has arisen that it would be
incumbent for the authority to execute any work of improvement or re-
development of any slum area or any structure in area or any such land
and for the said purpose the land should be acquired. In such a situation
the State Government may acquire the land by publishing a notice to the
effect that the State Government has decided to acquire the land.
However, before such power is exercised to acquire such land, the proviso
to sub-section (1) to section 14 prescribes that before such notice is
published in the official gazette deciding to acquire the land the State
Government or the competent authority by notice may call upon the
owner or any other person interested in such land to show cause in
writing to the competent authority, as to why the land should not be
acquired, and the competent authority shall forward such objection of the
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owner together with the report to the State Government. The State
Government considering the “report”, and the “objections” if any, is
required to pass ‘such order’ as it deems fit. The proviso assumes
significance firstly it postulates an opportunity to the landowner or any
other person interested to show cause as to why the land ought not to be
acquired and once such objections, are registered with the competent
authority, an obligation on the competent authority to consider the
objections, make a report in respect of the said objections and further
forward the objections and report for consideration of the State
Government for the State Government to objectively take a decision and
pass such appropriate order. It clearly appears that to some extent section
14 (1) read with the proviso is akin to the provisions of section 5A of the
Land Acquisition Act, 1894. Thus, necessarily there is a requirement for
compelling factors and/or reasons to exist on record which would
unequivocally compel the State Government to exercise its power of
eminent domain and decide to acquire the land. This necessarily would
include application of mind to the entitlement of the owner of the land,
occupier or landholder to redevelop the land as recognized by section
3B(4) (c) and (e) read with section 12(10) if so made applicable, read
with section 13 (1)and (2).Considering this statutory scheme, the decision
of the competent authority or of the State Government cannot be oblivious
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and/or de’ hors the ascertainment as to whether such specific obligations
were imposed on the landholders/landowners or occupants and if so
created whether they were at all discharged by such persons.
61. The acquisition of the land under the Slums Act is a part of
the legislative scheme as postulated by the Act, namely to improve the
conditions of those dwelling in slums and redevelopment of the slums
areas. This being the basic object of the legislation, the intention of the
legislature in providing for participation of the landlord in redevelopment
of the slums as reflected in the provisions of Section 3B(4)(e) and Section
13(1) and (2) of the Act cannot be overlooked. Such participation surely
has to be, before the land is acquired as different consequence follow after
acquisition of the land (See Section 15). An acquisition of land
overlooking and/or obliterating the effect of these provisions cannot be
said to be an acquisition conforming to the legislative scheme. It cannot
be that the intention of the legislature would be that the said provisions as
falling in Chapter I-A remain only paper provisions and/or become
redundant, when it is a question of an acquisition for the purpose of
redevelopment of a “slum rehabilitation area”. In such a situation the
endeavour of the Court would be to adopt the principles of a harmonious
and purposive interpretation of these provisions and make these
provisions meaningful so that the acquisition of land conforms to the
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legislative scheme and its mandate.
62. As seen from the provisions of Chapter I-A it cannot be a
statutory requirement that in every case, of some lapse or in relation to a
deficit in discharge of obligations of redevelopment by the
owners/landholders or occupants of the slum areas or some non-
compliance under a slum clearance order, land acquisition is the only and
only recourse to be taken by the competent authority and/or the State
Government, without affording a prior opportunity and compelling such
persons to rectify the situation by exercising the plentiful powers which
are available for that purpose with the SRA under the Slum Act so as to
bring about a redevelopment.
In our opinion considering the in-built mechanism which is
available under the clear provisions of section 3B (4) (c) and (e), Section
13 (1) and (2) of the Slum Act, which empower the SRA to develop the
land by entrusting it to any agency recognized by it, any interpretation of
the compulsory acquisition provision (Section 14), oblivious to the due
consideration of these specific provisions of the Act, which enable the SRA
to bring about a re-development of the slum rehabilitation areas without
acquisition of the land, would amount to defeating such specific provisions
and creating unwarranted concentration of coercive and arbitrary power
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of acquisition with the SRA.
Thus section 14 which confers power on the State
Government to acquire the land and the legislature having amended the
same in its application to Chapter I-A, having due regard to the provisions
of Section 3B, 3C which concern the ‘slum rehabilitation scheme’ and
‘slum rehabilitation area’, the decision to acquire such land cannot be read
outside the consequences which are brought about by the said provisions
the Act, as falling under chapter I-A. The rights so created interalia on the
landowners and the obligation so conferred on the SRA under the
provisions as falling in Chapter I-A, in our opinion, would have a direct
relation to the decision to acquire the land. This more particularly in view
of the proviso to section 14(1) which stands undisturbed by the
amendment as inserted by Chapter I-A, creating a statutory obligation on
the competent authority to consider the reasons as may be put forward by
the owner of the land against acquisition and prepare a report and
forward the same to the State Government. In our opinion a bonafide
willingness on the part of the land owner/land holders or occupant to
redevelop the land and for such reason the land be not acquired is a
legitimate objection which the owner of the land can raise and such
objection would certainly fall within the contemplation of the proviso to
section 14 (1), as required to be considered by the State Government
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before a decision to acquire is taken. Thereafter the State Government is
required to ‘pass an order’ on these objections. In the present facts the
rigour of this provisions appears to have been appropriately recognized by
the SRA when the SRA by its letter/report dated 4 August 2012 had asked
the State Government to take a decision at its level, as to whether the
petitioner be permitted to undertake redevelopment. This is also reflected
from the various documents which the petitioner has obtained under the
Right to Information Act and as placed on record whereby the State
Government as also the SRA had taken a clear view of the matter that the
petitioner would have a preferential right under Section 3B(4)(e) of the
Slum Act to undertake redevelopment before the acquisition proceedings
are initiated. This is clear, firstly from perusal of the note dated 14 May
2015 which is signed by Nayab Tahasildar (Slum Rehabilitation
Authority), the Dy.Collector (SRA), and the Secretary and the Chief
Executive Officer (SRA) who in clear terms record that the petitioner has
preferential rights to undertake redevelopment of the land. The relevant
extract of the note reads thus:
“The land bearing C.T.S. No.119 I, 119 I/1 to 83, admeasuring
9054 sq.mtr., situated at Village Tungva, Kurla has been declared
as “Slum Rehabilitation Area/Zone” on 11/03/2011. On the
property to be acquired, M/s.Indian Cork Mills Pvt.Ltd., has been
reflected as the landlords. In earlier hearing held in this office,
the argument was done on behalf of the Landlords that we can
submit the scheme as landlords. As per the provisions under Section
3(b)(4)(e) of the Maharashtra Slum Area (Improvement, Clearance
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landlords to submit the rehabilitation scheme before taking any
final decision in the matter of land acquisition.”
(emphasis supplied)
There are four other documents which are placed on record
namely a letter dated 15 May 2015 of the Chief Executive Officer-SRA to
the Principal Secretary, Housing Department, a note dated 18 May 2015 of
the Housing Department, a letter dated 12 October 2015 of the Deputy
Secretary, Government of Maharashtra to the Chief Executive Officer of
SRA and a note dated 5 April 2016 of the Deputy Collector -SRA, all these
documents, the copies of which the petitioner has received under the
Right to Information Act, clearly records that the petitioner would have a
preferential right to undertake redevelopment of the land in question
under Section 3B(4)(e) of the Act. All these documents thus reflect the
official opinion of the different authorities in dealing with the issues
falling under Section 3B(4)(e) of the Slum Act. This also clearly indicates
that not only the SRA but also the State Government was of the opinion
that the petitioner is required to be granted an opportunity to undertake
redevelopment. However, as the record reveals, no such opportunity was
granted by any of the authorities to the petitioner. Though repeatedly the
above documents noted the preferential rights of the petitioner to
undertake redevelopment, however, the petitioner was never called upon
to undertake redevelopment and put to a notice that if he fails to do so,
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SRA subsequently however took a contrary position, that it was a
petitioner who had not submitted any scheme, albeit not being called
upon to do so, and the acquisition of the land was resorted overlooking
the purport of the above official documents.
63. Now coming to the facts of the present case in some detail. It
is not in dispute that the petitioner had raised an objection to the
acquisition of the land in reply to the notice dated 8.8.2013 inter-alia
stating that it would undertake redevelopment of the land in question.
Thereafter, again the petitioner by its letter dated 26.8.2013, 12.9.2013,
25.2.2015, 6.5.2015, 15.7.2015, 16.7.2015 categorically informed the
authorities that it would undertake redevelopment of the slum area in
question. We find that there is nothing on record which would even
remotely indicate that either the SRA or the State Government had
applied its mind to this willingness of the petitioner much less take a
decision on such pleas. As noted above, Section 3B(4)(c) and(e)read with
section 13(1) would create a legal right in the petitioners to redevelop the
land in question. One cannot lose sight of the fact that what would be
achieved the SRA/State Government would be to redevelop the land even
on its acquisition. Thus in our clear opinion there is patent non-
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application of mind on the part of the SRA/State Government to the said
legal rights which are created in the petitioners as owners of the land and
to the repeated willingness on the part of the petitioner to enforce the
legal right so as to undertake redevelopment of the slum area. There
cannot a land acquisition under the said provisions oblivious to these basic
tenets and a a decision to acquire the said land overlooking these
primary considerations, would undoubtedly vitiate the decision to acquire
the land.
64. We also have grave doubts about the bonafides of the
proposal as submitted by the Society. As noted above, the petitioner has
categorically averred that as part of the proposal of one Mr.Anuj Desai had
executed an affidavit claiming to be the Constituted Attorney of the
petitioner/owner. The petitioner having received this knowledge has
addressed a legal notice to Mr.Anuj Desai who represented one M/s
Concrete Lifestyle Pvt Ltd, informing of civil and criminal action to be
initiated against him for making a bogus representation. The petitioner
has clearly averred that no power of attorney was granted by the
petitioner in favour of Mr.Anuj Desai and that thus the proposal to acquire
the land was at the behest of a developer who is acting under the guise of
the society. This affidavit of Mr.Anuj Desai is extracted hereunder :-
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AFFIDAVIT
“I Shri Anuj Desai residing at Dadi House,Ground floor
Next to Alfa House, Irla Vile Parle (W) Mumbai. C.A. to owner of
the above mentioned property solemnly affirm and say as under:
I hereby say that there is no litigation pending in any court
of law in respect of the above property and the title of the above
property is clear and marketable at present.
Dated: 11.day of December 2007″.
Before Addl.Collector (Enc Rem)
Kalanagar Bandra Mumbai.
(emphasis supplied)
A perusal of the affidavit clearly indicates that the same is
placed on record of the SRA by Mr. Anuj Desai as a constituted attorney
of the petitioner/owner when no such power of attorney was executed by
the petitioner in favour of either Mr. Anuj Desai or M/s Concrete Lifestyle
Pvt Ltd. The specific averments as made in the petition interalia that
submitting such affidavit as a part of the acquisition proposal as filed by
the Society amounted to a fraud and misrepresentation have not been
dealt and denied by any of the respondents. Even for this reason we are
of the clear opinion that the acquisition proposal as filed by the Society
was not bonafide. Thus there is much substance in the contention as urged
on behalf of the petitioner that the third parties are taking active role by
creating such a false and bogus documents. The authorities are definitely
not under any obligation to act on such documents without verifying its
authenticity. We note this conduct not only the society but also the
authorities in not taking any action on such irregularities though brought
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to their notice and nonetheless proceeding with acquisition of the land.
Thus, it is quite clear that the respondents were proceeding under a non-
existent consent of the petitioner-landlord. Once such a document was on
record the whole complexion of the acquisition proposal was different
namely that there was a consent of the owners for such development
scheme of the society for which the acquisition proposal was made, when
in reality there was none. What surprises to us is that the society’s
development proposal for which they seek acquisition at the threshold is
backed by a developer. When the statutory scheme of Section 15(3) as
falling under Chapter I-A is otherwise, namely that after the acquisition is
complete and possession of the land is taken over, the land would be
transferred to the SRA and only then the SRA may hand over the same to
any agency as per Section 3B(4) of the Slum Act. Thus appointment of a
developer before hand to submit a proposal is not in contemplation of the
acquisition scheme under Chapter I-A.
65. We may observe that although by a notification dated 18
January 1979 an area admeasuring 3054.3 sq.meters was declared as a
slum under section 4 of the Slums Act and thereafter by a notification
dated 11 March 2011 as issued under Section 3C(1) of the Slum Act the
land came to be notified as a slum rehabilitation area, however, the record
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indicates that at no point of time, either the petitioner or any other person
relevant for the purposes of section 13(1) was called upon by either the
SRA or the State Government to undertake redevelopment of land so as
to come to a conclusion, that as per provisions of section 13(1), none of
these persons had come forward within a reasonable time to redevelop
such land. To come to such conclusion it would be the basic requirement
that the owner or occupant or landholder is given a notice to submit a
scheme for redevelopment of the land so that, the reasonable time to be
considered as per the provisions of section 13(1) can be ascertained, and
an order to that effect can be passed under the said provision, to
redevelop such land by the SRA by entrusting it to any other agency.
There is also nothing on record to indicate such satisfaction of the
authority under sub-section (1) of Section 13 read with proviso to section
14 of the Slums Act was achieved, when there was ample material to
indicate that the petitioner had time and again represented its willingness
to undertake redevelopment of the said land. What is significant is that
right from the inception namely from the first report dated 4 August, 2012
of the Additional Collector as made to the State Government, the only
consideration which appears to have weighed with the Additional
collector is that the petitioner has not submitted a slum rehabilitation
scheme in regard to the development of the said land as seen from
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paragraph four of the said report and comments that an appropriate
decision in regard to acquisition be taken at the level of the Government.
The State Government also did not take a decision on the willingness of
the petitioner to undertake a redevelopment scheme.
66. At this stage, we may note that there is no express provision
in Chapter IA of the Slums Act, which stipulates a time limit, within which
the landholder/ landowner or the occupants are required to submit a
scheme and undertake redevelopment of the slum area after the land is
notified as a slum rehabilitation area. Unless there is such statutory
prescription of the time limit, then as to what shall be a reasonable period
in a given case for such persons to initiate/submit a redevelopment
scheme, would be required to be considered in the facts and
circumstances of each case depending on whether the SRA had called
upon such persons to undertake re-development and there is a failure on
the part of such persons to undertake the same within a reasonable time.
The law nowhere provides an automatic mandatory obligation on any
person to undertake a redevelopment scheme on the declaration of such
area as a slum or a slum rehabilitation area and in our opinion rightly so.
In the present case this issue would also go to the root of the matter as the
decision to acquire has been taken by the State Government for the sole
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and the only reason that the petitioner had not submitted a scheme for the
redevelopment of the land, which in fact is a reason available for the SRA
to pass an order under section 13(1) of the Act (as falling under Chapter I-
A) to appoint an agency and entrust the re-development to such agency.
67. Thus in our opinion the SRA recommended acquisition of the
land, oblivious of not only the rights as conferred by Section 3B(4)(e) and
13 (1) of the Slum Act on the petitioner, but also overlooking the powers
which are conferred on the SRA under these provisions which would also
bring about a result of redevelopment of the land for which the land
acquisition is intended. There are no reasons as forthcoming from the
record as to how and in what manner and by applying what standards the
SRA or the State Government, in the present facts reached to a conclusion
that the powers under section 14 are required exercised to acquire the
land, as the petitioner had not submitted a scheme for redevelopment or
there is a gross delay on the part of the petitioner in submitting a scheme
for re-development. Thus, the satisfaction to be arrived by the SRA/State
Government, under section 14 (1) being objective would surely require
appropriate reasons on record indicating as to what was the reasonable
time which was made available by the SRA to the landowners or
occupants to undertake redevelopment invoking section 13(1) of the Slum
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Act. In any event, proviso to section 13 contemplates that before an order
is passed under section 13 (1) or section 13 (2) the owner shall be given a
reasonable opportunity for showing cause as to why such order should not
be passed. It is clear that in the facts of the present case, no such order is
passed under the proviso to section 13 of the Act. Thus unless it is
determined for reasons to be recorded in writing, as to how it is an
unreasonable delay in submitting a scheme, this conclusion to be the basis
of acquisition, cannot satisfy the test of fairness and reasonableness, and
more particularly when the SRA/State Government is depriving the person
of the valuable constitutional right to property guaranteed under Article
300-A of the Constitution.
68. The record indicates that the initial approach of the State
Government can be said to be fair and as per the requirement of law as we
have noted above, when precisely recognizing the petitioner’s rights as
owners of the land, the State Government by its letter 9 April 2013
addressed to the Chief Executive Officer-SRA sought for a clarification as
to whether the Chief Executive Officer before forwarding the proposal of
the society vide his letter dated 29 th November 2012, had heard the
petitioner or whether the petitioner was granted an opportunity to submit
its explanation in regard to the acquisition. This showed that the SRA had
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earlier recommended the proposal by its report dated 4 August 2012 with
undue haste and without due consideration of the rights of the petitioner
to record their grievances on the issue of acquisition but at the same time
leaving it to the State Government to take a decision as to whether the
petitioner/owner should be permitted to redevelop the land. The SRA in
fact at this stage ought to have tested the petitioner’s willingness and an
opportunity to redevelop the land should have been granted to the
petitioner. Further, this report dated 4.8.2012 of the Additional Collector,
SRA to the Housing Department of the State Government also was
conspicuously silent on the SRA granting any hearing to the petitioner or
communicating to the State Government the intention of the petitioner to
redevelop the land. As this report was not accepted by the State
Government by its said letter dated 9 April 2013 addressed to the SRA,
the SRA had issued a show cause notice dated 8 August 2013 to the
petitioner. Notably even the second report of the SRA dated 29 December
2013 which is stated to be prepared after a hearing was granted to the
petitioner on the show cause notice dated 8 August 2013, is also
mechanical to say the least, which re-iterates the same contents as in the
earlier report dated 4 August 2012 namely that the petitioner had not
submitted any scheme for redevelopment of the said land. The specific
contention as urged by the petitioner that it intends to re-develop the land
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and rehabilitate the slum dwellers, and that the petitioner would oppose
any third party to participate in the redevelopment of the land find no
consideration in the said report. There are also no reasons as set out in the
report which would indicate the rejection of the petitioner’s persistent plea
that it was ready and willing to undertake redevelopment. Thus, the
report dated 29 December 2013 was no different from the report dated 4
August 2012.
69. Considering the scheme of the Act and more particularly
Chapter I-A as noted above, it cannot be said that the SRA was powerless
to call upon the petitioners to submit a scheme and to undertake
immediate redevelopment of the land after it was declared as a ‘slum
rehabilitation area vide notification dated 11th March 2011. Further, it is
also not a case that the SRA invoked the provisions of section 13(1) to
redevelop the land on account of failure of the petitioner to undertake
redevelopment within a reasonable time. Ultimately the aim and object of
section 13(1) is to bring about redevelopment for rehabilitation of the
slum dwellers by the SRA itself determining to redevelop such land by
appointing any agency recognized by it. The purpose for acquisition of
land under section 14 is no different which is also to execute any work of
improvement or to redevelop any slum area.
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70. We may also observe that the acquisition under the Slum Act
has a different complexion and colour form a regular acquisition for a
public project under the normal law dealing with acquisition, or
acquisition undertaken by the town planning authorities under the local
laws for planned development of the municipal areas. One cannot be
oblivious of the interest of third parties in undertaking redevelopment of
slums, because of the commercial benefits such projects would provide,
and such third parties can still play a crucial role to bring about an
acquisition, from acting behind the scene. When it comes to grant of
development rights we may refer to section 3B(f) of the Slums Act which
postulates that the slum rehabilitation scheme so notified under sub-
section 3 of section 3B shall make a provision for sanctioning and transfer
of developments right if any to be made available with the developer for
development of the slum rehabilitation area under the slum rehabilitation
scheme. Thus different from the usual acquisitions it is but obvious, that
third parties namely the developers/builders etc., would be legitimately
interested to undertake redevelopment of the slum areas (which would
also include land belonging to private owners). Also special benefits are
available in undertaking constructions in the redevelopment scheme by
utilizing the additional FSI available after utilizing the FSI necessary for
rehabilitation of the slum dwellers for undertaking development of slums
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under the Development Control Rules (DCR) applicable for Greater
Mumbai, a provision has been made in Regulation 33 (10) to that effect.
These regulations are framed not under the Slums Act but under section
158 of the Maharashtra Town Planning Act, 1966 which provides for the
power of the State Legislature to frame rules. The redevelopment of the
slum land under regulation 33 (10) of the Development Control
Regulations (for short ‘DCR’) provides for a “rehabilitation” and a “free
sale component” as an incentive to redevelop the slum lands. The benefits
of FSI under Rule 3 of Appendix IV reads thus :
“3. Rehabilitation and Free sale Component
3.1 : FSI for rehabilitation of eligible slum/pavement-dwellers
includes the FSI for the rehab component and for the free sale
component. The ratio between the two components shall be as laid
down herein below.
3.2 : Built-up area for rehabilitation component shall mean total
construction area of rehabilitation component, excluding what is
set down in 35 (2) of D.C. Regulations, 1991 but including areas
under passages, balwadis, welfare centres, society office, religious
structures (other social infrastructure like school, Dispensary,
Gymnasium by Public Authority or Charitable Trust) 5 per cent
incentive commercial areas for the co-operative society and the
further 5 per cent incentive commercial for the NGO
(Government/Public Authority/Government Company) wherever
eligible.
3.3: In island city, if rehab component is 10 sq.metres of built-up
area, then an additional 7.5 sq. metres built-up area will be
permitted so that this additional 7.5 sq.metres can be utilized for
disposal in the open market and the rehab component subsidised.
3.4. In suburbs and extended suburbs, if rehab component is
10sq.meters of built-up area, then an additional 10 sq.metres of
built up area will be permitted so that this additional 10 sq.metres
can be utilized for disposal in the open market and the rehab
component subsidised.
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3.5. In difficult areas, which shall comprise Dharavi now and
such areas as may be notified by the Slum Rehabilitation Authority
hereafter if the rehab component is 10 sq.meters of built-up area
then an additional 13.33 sq.metres of built up area will be
permitted and this area of additional 13.33 sq.metres can be
utilized for disposal in the open market and the rehabilitation
component subsidized.
3.6: Provision in 3.3 to 3.5 hereinabove shall also apply to the
sites where the Slum Rehabilitation Project of eligible pavement
dwellers will be implemented.
3.7 FSI to be sanctioned or a Slum Rehabilitation Project on a
site may exceed 2.5.
3.8 Maximum FSI permissible for Consumption on the plot;
Even though the sanctioned FSI may be more than 2.5 FSI, the
maximum FSI that can be utilized on any slum site for the project
shall not exceed 2.5 and the difference between sanctioned higher
FSI and 2.5, if any, will be made available in the form of
Transferable Development Rights (TDR) in accordance with the
provisions of Appendix VII-B. The computation of FSI shall be done
for both the rehab and free sale components in the normal manner,
that is giving the benefit of what is set down in DC Regulation
No.35 (2). While the areas referred in sub-regulations No.6.10 and
8.2 of this Appendix shall not be included for computation of FSI.,
the said areas shall be included for computation of the rehab
component of 10sq.mts in sub-regulations 3.3 to3.5 hereinabove:
(Provided that if the existing tenement density is more than
650 per hectare, Government in Urban Development Department
may allow FSI consumption in situ to be exceeded up to the
sanctioned FSI but not exceeding 3.00 FSI. In such cases the
difference between sanctioned higher FSI and 3.00 if any will be
made available in the form of Transferable Development Rights
(TDR) in accordance with the provisions of Appendix VII-B).
3.9: Notwithstanding the provisions in 3.8 above, on account of
constraints such as height restrictions, uneconomical site conditions
etc. if the full 2.5 FSI cannot be used on the same site, TDR may be
allowed as may be necessary even without consuming FSI up to 2.5
on the same site. However, TDR may be allowed only when the
frame work for one complete building in Rehab Component is
constructed or when 10% of the Rehab component has been
constructed on site and the said TDR will not exceed 50 per cent of
the construction of Rehab component at any point of time till the
total component has been completed. On completion of the total
Rehab component, balance TDR will be allowed.”
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71. No doubt the above rules conferring FSI benefits are a
laudable piece of legislation which enables the authorities to eradicate the
slums in urban areas, however when such redevelopment involves third
parties to be appointed and approved by the authorities to undertake the
redevelopment, commercial interest become dominant. Such interest are
bound be varied depending on the quantum of the area and the location
of the slums. Thus the authorities in discharging their public duties under
the Slum Act are required to satisfy a dual test namely of balancing the
public interest and at the same time taking care of the legitimate private
interest so that the scheme becomes viable. This includes appointment of
such private parties to undertake development who possess technical
ability coupled with substantial ability to undertake such schemes. We can
surely take judicial notice of the litigation which has reached this court
where, slum projects are languishing for want of such parties not
completing the projects or abandoning the projects and variety of
complications arising from such half executed projects. We have felt the
need to record this for the reason that, many of such projects may pertain
to lands which are acquired under the Slum Act. Thus if the land owner is
himself interested to develop the land and that law confers such rights on
the landowner/landholder or the occupant then it would surely be in the
fitness of things that such legal rights are first recognized before the other
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powers are invoked. There can be nothing illegitimate in the landowner
himself being granted an opportunity of redeveloping his land under
slums, instead of another developer doing it and only on his persistent
failure the authority can certainly resort to acquire the land.
72. We may also note that neither the SRA nor the State
Government has pointed out any specific provision as made in the slum
rehabilitation scheme, qua the land in question as per requirement of
section 3B(4) (a) to (g). Further we are also not shown any express
obligation so conferred on the land owners as per the specific requirement
of Section 3B(4)(e). We have also not been shown any order passed by the
competent authority under the provisions of modified section 12 (1)
falling under chapter I-A of the slums Act to undertake redevelopment. All
the above factors are eminently relevant for a decision to be taken by the
State Government to acquire the land under section 14 (1) of the Slums
Act as necessarily the proviso to this section provides application of mind
to these issues by the State Government and pass an order to that effect.
Needless to observe that on first principles exercise of powers under
section 14 (1) cannot be a mere formality but, such an exercise is required
to be undertaken for reasons which are acceptable in law and clearly
available on record. We may point out that neither the show cause notice
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issued to the petitioner nor the acquisition notification indicate any
reasons. The cryptic file noting/order dated 17 November 2016 passed by
the Hon’ble Minister for Housing, on the basis of which the impugned
acquisition notice/notification dated 22 December 2016 has been issued
under section 14(1) of the Act also contains no reasons when the law
requires (Section 14(1) Proviso) an order to be passed after considering
the report of the competent authority and the objections as raised by the
owners or those interested in the land. In this context we may refer to the
decision of the Division Bench of this Court in the case of Sara D’Mello
(supra) wherein the Division Bench taking into consideration that since
the reasons for acquisition of the land were borne out by the show cause
notice the final notification under Section 14(1) need not contain reasons.
Thus the Court would be concerned with the basic requirement as
whether the show cause notice or the record indicated a valid and
acceptable purpose of acquisition. In the present case the petitioner would
be right to contend that at no point of time the reasons for acquisition
were made known to the petitioner.
73. Now coming to the objections as raised on behalf of the
respondents. Firstly, in regard to the objections which are raised on behalf
of the SRA, that the SRA had adopted proper procedure to acquire the
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said land and as the land as stood vested in the State Government by the
issuance of the impugned notification dated 22 December 2016 under
section 14(1) of the Act, hence no interference is called for in this petition,
cannot be accepted. This contention as urged on behalf of the SRA
overlooks that the exercise of powers to acquire land is not sacrosanct.
Such power needs to be exercised in a manner known to law and in
accordance with law. The justification for exercise of such powers is
required to be borne out by the record. It cannot be that the SRA or the
State Government at its pleasure select any of such lands and subject them
to acquisition defeating the other provisions of the Slum Act. The power of
acquisition is required to be exercised as permissible under the statutory
scheme and subject to absolute reasons available on record that the other
methods and means as provided under the statute have failed to fetch any
result so as to bring about the redevelopment of such lands, more
particularly when such safeguards /provisions are made in the statute as
in the Slum Act. If such test is not satisfied then it can certainly be said
that the right to acquisition can be selectively exercised and not
conforming to the legitimate requirement of non-discrimination and equal
protection as envisaged by Article 14 of the Constitution.
74. The Slum Act lays down a statutory scheme/policy under its
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different provisions and more particularly as contained in the provisions
as falling under Chapter I-A as discussed above. If the State Government
and the SRA have exercised powers in issuing of the impugned acquisition
notification, contrary to the said statutory scheme/policy and for reasons
which cannot be considered to be acceptable, when so tested, considering
the provisions of the Act, as noted above, then in our opinion there is no
impediment for the writ court to interfere in the decision to acquire the
land. We say so, as more particularly when the provisions of the Slums Act
specifically confer a legal right on the owners to redevelop the land as
permissible under DCR 33 (10) and which opportunity was sought to be
availed by the petitioner as permissible under Section 3B(4)(e) read with
Section 13(1) of the Slum Act, then the authorities ought to have
permitted the petitioner to utilize the said opportunity as created by law.
75. The submission as made on behalf of the SRA that under
regulation 33 (10) of the DCR read with Appendix IV a scheme for
redevelopment of the slum was not submitted by the petitioner and more
particularly when a notification under section 4 of the Slum Act qua 3045
sq meters was issued in the year 1979 followed by the declaration under
3C as made on 11th March 2011 for the entire land, also cannot be
accepted. As observed above, a perusal of the provisions of DCR 33 (10)
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read with appendix IV or the provisions of Slums Act nowhere
contemplates any time limit within which the owner occupier or
landholders are required to submit a slum redevelopment scheme on the
issuance of a declaration under section 3C or even under section 4 of the
slums Act. Moreover, as seen from the declaration under Section 3C dated
11th March 2011 issued by the SRA notifying the 9054 sq.meters as the
slum rehabilitation area, it is clear from the following wordings of the said
notification, that the effect is merely that the land has become available
for development under DCR 33 (10):-
“And in view of the said provision of section 3C(1) of the
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971, I S.S.Zende, the Chief executive officer,
slum rehabilitation authority hereby declare the area shown in
schedule as “slum rehabilitation area”. On the said area, the Slum
Rehabilitation Scheme is proposed to submit as per Greater
Bombay Development Control Rules 1991, regulation 33 (10):…”
76. We may observe that as per Rule 1 of Appendix IV
redevelopment/construction of hutment /dwellers owners, can be
undertaken through agencies such as MHADA, MIDC,MMRDA etc. non-
government organizations, anywhere within the limits of Brihan Mumbai.
Thus, it is not a case that there is an absolute obligation on the owner to
undertake redevelopment and to submit a rehabilitation scheme within a
prescribed time schedule and thus the contention as urged on behalf of
the SRA that the petitioner had not submitted a slum rehabilitation
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scheme and it was thus imperative for the SRA and the State Government
to acquire the land cannot be accepted. In our opinion, the respondents to
support the contention that the petitioner has not come forward to
redevelop the land and thus acquisition as undertaken is proper, have
placed reliance on the decisions of this Court in Avdesh Tiwari vs Chief
Executive Officer (supra), Murlidhar Tekchand Gandhi vs State of
Maharashtra (supra), Pratap Singh Surji Vallabhdas vs State of
Maharashtra (supra), Twin Deccan Builders vs State of Maharashtra
(supra). In our opinion, the reliance on these decisions is not well
founded, principally for the reason that the none of the decisions
concerned acquisition of land which was declared as a slum rehabilitation
area under section 3-C of the Slum Act as also several opportunities were
made available to the land owners in the said cases to redevelop the land.
77. We are thus in agreement with the view taken by the Division
Bench in Anil Gulabdas Shah (supra) which was a case where the Court
was concerned with the application of the amended provisions namely
Chapter I-A of the Act where the Court has held that under section 13 of
the Act as falling under amended chapter I-1 the SRA is obliged to first
offer the land to the land owner or to the occupants thereon to come
forward to redevelop the same and only on their failure the land could be
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given to the third party. In this case land was declared as a slum
rehabilitation area under Section 3C of the Slum Act and consequently the
provisions of Chapter I-A of the Act were made applicable. Further a
proposal submitted by the developer of the slum dwellers was accepted by
SRA and a letter of intent was also issued in favour of the developer in
pursuance of which the developer had commenced the development.
Despite this overwhelming fact, it is held by the Division Bench that just
because the redevelopment work had progressed and the owner would
become entitled to compensation, it could not be held that the acquisition
was legal. The Division Bench held that it was obliged to first offer the
land to the owner for development under Section 3B(4)(e) and modified
Section 13(1) of the Slums Act. The relevant observations of the Division
Bench can be reads thus :
” 20. … … … It was urged before us that even otherwise,
consequent to the order passed by this Court on 24-4-2000, the
petitioner was heard and, therefore, the requirement of principles
of natural justice was complied with during the course of hearing
before the Secretary as well as the Principal Secretary. It was
urged by the respondent that on this ground alone, the acquisition
was required to be upheld and there is no reason to hold that the
notification dated 6.7.1998 is vitiated in respect of the petitioner’s
plots. We do not agree with this submission and more so because
on 9.4.1998 itself the SRA published the general slum
rehabilitation scheme under section 3B(2) of the Act and thus, the
scheme of chapter I-A for slum rehabilitation would be applicable
from that date. The acquisition of the land of the petitioner would
be, therefore, required to be completed as envisaged under
chapter I-A of the Act. As noted earlier the scheme of section
14(1) of the Act is different for the acquisition of the slum area for
redevelopment as well as works of improvement on one hand and
for the slum rehabilitation scheme on the other. The acquisition in
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1999. Thus, the acquisition of the petitioner’s land by the
impugned notification dated 6.7.1996 is of no consequence. None
of these officers examined the core issue as to whether the suit
land could be acquired for works improvement on the face of the
fact that a notification under section 3C(1) was published on
25.5.1999. They were called upon to hear the petitioner as a
statutory requirement and it was therefore incumbent upon them
to examine whether acquisition of the suit land could be done
when it was included the slum rehabilitation area declared on
25.8.1998. The Act does not recognize that the sum land is
acquired first and then it is declared as a slum rehabilitation area,
when it comes to private ownership land. Once the notification
under section 3C(1) of the Act is published it creates some vested
rights in favour of the owners of the land covered under the slum
rehabilitation area. The owners get the first choice to undertake
the rehabilitation scheme and only on their failure to do so within
a specified period as required under section 13 of the Act and as
applicable to Chapter I-A, that the State Government can proceed
to acquire the land and undertake the rehabilitation scheme or
hand it to over any other agency to undertake such a scheme as
is clear from the scheme of section 15 (3) as amended under
Chapter I-A of the Act.
22………The whole process appears to have been short-circuited
and under the guise of acquiring the land for the works of
improvement. We, therefore, find fault with the LOI dated
1.12.1998 but only in respect of the suit plots. Section 15 (3) and
(4) as amended by Chapter I-A of the Act, does allow the land to
be handed over to a third agency for the rehabilitation of slums
dwellers but it could be so done only after the private land owners
were called upon to undertake rehabilitation and that they
declined or failed to do so. Hence the LOI dated 1.12.1998 to the
extent it covers the suit land, is vitiated and it deserves to be set
aside as illegal and void ab initio.
… …
25. Though we have held that the impugned Notification is
unsustainable and the respondent No.4 has no vested right over
the suit plots, these findings by themselves do not entitle the
petitioner to seek possession of the said plots area. The
Notifications issued under section 4(1), declaring the suit plots as
slum areas and the Notification issued under section 3C(1) on 25-
8-1999 have received finality. Under Section 3C(2) of the Act, any
person aggrieved by the slum rehabilitation order may, within four
weeks of the publication of such order prefer an appeal to the
Special Tribunal; and the decision of the Special Tribunal shall be
final. In the instant case, the slum rehabilitation order has been
published on 25-8-1999 and the petitioner had the remedy of
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filing an appeal before the Special Tribunal against the said order
under section 3C(2) of the Act within a period of four weeks of
publication of the said order. It has been the consistent stand of
the petitioner that such an order was not issued, but the order
having been published in the Official Gazetee the petitioner may
not have the remedy of appeal as of now and knowing this
position in law, he has pressed for the relief that owners of the suit
plots must be given an opportunity to develop the slum area and
rehabilitate the slum dwellers. Some of the slum dwellers have
appeared before us and filed an affidavit supporting the proposal
of the petitioner that he ought to be allowed at the first instance to
undertake the slum rehabilitation work. Section 13 (1); as
applicable for Chapter I-A, states that the SRA may, after any area
is declared as the Slum Rehabilitation Area, if the landholders or
occupants of such area do not come forward within a reasonable
time with a scheme for re-development of such land by order
determine to redevelop such land by entrusting it to any agency
for the purpose. As per sub-section (2) of section 13, where on
declaration of any area as a slum Rehabilitation Area the SRA is
satisfied that the land in the Slum Rehabilitation Area has been or
in being developed by the owner in contravention of the plans
duly approved or any restrictions or conditions imposed under sub
section (10) of section 12 or has not been developed within the
time if any specified under such conditions, it may by order
determine the develop the land by entrusting it to any agency
recognized by it for the purpose. Provided that before passing such
order the owner shall be given a reasonable opportunity of
showing cause why such order should not be passed. Thus under
section 13 of the Act and as applicable for Chapter I-A therein the
SRA is obliged to offer the suit land first to the petitioner or to the
occupants thereon to come forward for redevelopment of the same
and only on their failure, the land could be handed over to a third
party. This statutory scheme cannot be given a go-by . If the land
holders or the occupants of the area do not come forward within a
reasonable time for redevelopment of the land so as to rehabilitate
the slum dwellers or by an order passed by the SRA to determine
to develop the land, then only the provisions for acquiring the
land and then to transfer it to any agency under sections 14 and
15 as applicable to Chapter I-A of the Act will come into play. This
process shall have to be followed by respondent nos.1 to 3 in
respect of the suit plots which have already been declared as a
Slum Rehabilitation Area in terms of the Notification dated
25.8.1999. This is how the scheme of the Act for the purpose of
rehabilitation of slum dwellers ought to be understood and
interpreted. … … …
26. The petitioner has made an alternate prayer of reasonable
compensation, but in course of arguments he gave up the said
prayer and insisted for the suit plots to be offered to the owners
for the Slum Rehabilitation Scheme. By relying upon this
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alternative relief, the learned counsel for the respondents
submitted that at the most the land owners could be granted
compensation, especially when the award passed under section 17
of the Act has excluded the suit plots. These submissions appears
to be convincing, but cannot be considered in view of the scheme
of the Act. Under section 13 (I) of the Act and as applicable to
Chapter I-A therein, the land owners or the slum dwellers’ society
has to be offered at the first instance to undertake the slum
rehabilitation and if they fail to do so within a fixed time, the SRA,
can under section 15(3) of the Act allot the suit plots to some
other agency and only in that event there may be a question of
offering compensation to the land owners. Such an eventuality has
not arisen in the instant case on account of the insistence of the
petitioner that he is willing to undertake the rehabilitation project
and he has the slum dwellers on the suit property with him. In this
regard he has relied upon the affidavits filed by some of the slum
dwellers during the course of the hearing of these petitions……..”
(emphasis supplied)
Thus, our observations in interpreting provisions of Section
13 of the Act and the statutory scheme falling under chapter I-A find clear
support in the above observation of the Division Bench. Thus the
contention on behalf of the SRA that petitioner was merely writing letters
cannot be accepted in the absence of the SRA first offering the land to be
redeveloped by the petitioner. The SRA was certainly under obligation to
call upon the petitioner for development of the slum to redevelop the
slums on the land in question which it had failed to do and more
particularly considering the mandate of the directions as contained in
paragraph 25 of the said decision as applicable to all slum rehabilitation
schemes.
78. We are also not persuaded to accept the contention as urged
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on behalf of the society that the decision in Anil Gulabdas Shah (supra)
stands set aside in view of consent terms dated 3 January 2012 arrived
between the parties before the Supreme Court. It is a settled principle of
law that when the Court passes an order, by consent of the parties the
Court does not adjudicate upon the rights of the parties nor does it lay
down any principle. Thus it cannot be said that the statement of law as
declared by the Division Bench of this court in interpreting the provisions
of section 3B and section 13 falling under Chapter I-A in Anil Gulabdas
Shah (supra),in any manner stands diluted by the consent order between
the parties. The Supreme Court in Municipal Corporation of Delhi vs
Gurnam Kaur31 in considering the issue as to which order can be treated
as precedent held that orders made by consent of the parties cannot be
treated as a precedent. The Court in para 10,11 and 12 observed thus:
“10. It is axiomatic that when a direction or order is made by
consent of the parties, the court does not adjudicate upon the
rights of the parties nor does it lay down any principle. Quotability
as ‘law’ applies to the principle of a case, its ratio decidendi.The
only thing in a Judge’s decision binding as an authority upon a
subsequent Judge is the principle upon which the case was
decided. Statements which are not part of the ratio decidendi are
distinguished as obiter dicta and are not authoritative. The task of
finding the principle is fraught with difficulty because without an
investigation into the facts, as in the present case, it could not be
assumed whether a similar direction must or ought to be made as
a measure of social justice. That being so, the direction made by
this Court in Jamna Das case could not be treated to be a
precedent. The High Court failed to realise that the direction in
Jamna Das case was made not only with the consent of the parties
but there was an interplay of various factors and the Court was
moved by compassion to evolve a situation to mitigate hardship
which was acceptable by all the parties concerned. The court no31 (1989)1 SCC 101
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State Policy enshrined in Article 38 (2) of the Constitution and
said:
Article 38 (2) of the Constitution mandates the State to
strive to minimise, amongst others, the in-equalities in facilities
and opportunities amongst individuals. One who tries to survive
by one’s own labour has to be encouraged because for want of
opportunity destitution may disturb the conscience of the society.
Here are persons carrying on some paltry trade in an open space in
the scorching heat of Delhi sun freezing cold or torrential rain.
They are being denied continuance at that place under the
spacious plea that they constitute an obstruction to easy access to
hospitals. A little more space in the access to the hospital may be
welcomed but not at the cost of someone being deprived of his
very source of livelihood so as to swell the rank of the fast growing
unemployed. As far as possible this should be avoided which we
propose to do by this short order.
This indeed was a very noble sentiment but incapable of
being implemented in a fast growing city like the Metropolitan
City of Delhi where public streets are overcrowded and the
pavement squatters create a hazard to the vehicular traffic and
cause obstruction to the pedestrians on the pavement.
11. Pronouncements of law, which are not part of the ratio
decidendi are classed as obiter dicta and are not authoritative.
With all respect to the learned Judge who passed the order in
Jamna Das case and to the learned Judge who agreed with him,
we cannot concede that this court is bound to follow it. It was
delivered without argument, without reference to the relevant
provisions of the Act conferring express power on the Municipal
Corporation to direct removal of encroachments from any public
place like pavements or public streets and without any citation of
authority. Accordingly, we do not propose to uphold the decision
of the High Court because it seems to us that it is wrong in
principle and cannot be justified by the terms of the relevant
provisions. A decision should be treated as given per incuriam
when it is given in ignorance of the terms of a statute or of a rule
having the force of a statute. So far as the order shows no
argument was addressed to the Court on the question whether or
not any direction could properly be made compelling the
Municipal Corporation to construct a stall at the pitching site of a
pavement squatter. Professor P.J.Fitzgerald, editor of the Salmond
on Jurisprudence 12th edn explains the concept of sub silentio at p
153 in these words :
A decision passes sub silentio in the technical sense that
has come to the attached to that phrase, when the particular point
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upon. It may be shown, however, that logically the court should
not have decided in favour of the particular party unless it also
decided point B in his favour; but point B was not argued or
considered by the court. In such circumstances, although point B
was logically involved in the facts and although the case had a
specific outcome, the decision is not an authority on point B. Point
B is said to pass sub silentio.
12. In Gerard vs Worth of Paris Ltd (k) the only point argued
was on the question of priority of the claimant’s debt, and on this
argument being heard, the court granted the order. No
consideration was given to the question whether a garnishee order
could properly be made on an account standing in the name of the
liquidator. When, therefore, this very point was argued in a
subsequent case before the Court of Appeal in Lancaster Motor Co
(London) Ltd vs Bremith Ltd., the court held itself not bound by its
previous decision. Sir Wilfrid Greene, M.R. said that he could not
help thinking that the point now raised had been deliberately
passed sub silentio by counsel in order that the point of substance
might be decided. He went on to say that the point had to be
decided by the earlier court before it could make the order which
it did; nevertheless since it was decided “without argument”,
without reference to the crucial words of the rule, and without any
citation of authority” it was not binding and would not be
followed. Precedents sub silentio and without argument are of no
moment. This rule has ever since been followed. One of the chief
reasons for the doctrine of precedent is that a matter that has once
been fully argued and decided should not be allowed to be re-
opened. The weight accorded to dicta varies with the type of
dictum. Mere casual expressions carry no weight at all. Not every
passing expression of a Judge, however eminent can be treated as
an ex cathedra statement having the weight of authority.”
79. We are also not in agreement with the contention of the
Society that the judgment of the Division Bench in Anil Gulabdas Shah
(supra) has merged in the consent orders passed by the Supreme Court
considering the well settled position in law as laid down in the decision in
S.Shanmugavel Nadar Vs. State of T.N. Anr.32 The Court in para 15
observed thus :
32 AIR 2002 SC 3484
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“15. A situation near similar to the one posed before us, has been
dealt in Salmond’s Jurisprudence (Twelfth Edition at pp 149-150)
under the caption-“Circumstances destroying or weakening the
binding force of precedent: (perhaps) affirmation or reversal on a
different ground”. It sometimes happens that a decision is affirmed
or reversed on appeal on a different point. As an example, suppose
that a case is decided in the Court of Appeal on ground A, and
then goes on appeal to the House of Lords, which decides it on
ground B, nothing being said upon A. What, in such
circumstances, is the authority of the decision on ground A in the
Court of Appeal ? Is the decision binding on the High Court, and
on the Court of Appeal itself in subsequent cases ? The learned
author notes the difficulty in the question being positively
answered and then states : (i) the High Court may, for example,
shift the ground of its decision because it thinks that this is the
easiest way to decide the case, the point decided in the Court
below being of some complexity. It is certainly possible to find
cases in the reports where judgments affirmed on a different point
have been regarded as authoritative for what they decided; (ii) the
true view is that a decision either affirmed or reversed on another
point is deprived of any absolute binding force it might otherwise
have had; but it remains an authority which may be followed by a
Court that thinks that particular point to have been rightly
decided.”
80. We are also cannot accept the submissions of Mr.Sathe as also
of Mr.Samdani that the provisions of chapter I-A are irrelevant considering
the applicability of section 14 for acquisition of the land for development
of a slum rehabilitation scheme in any slum rehabilitation area. This for
two-fold reasons: firstly, it is not in dispute that the acquisition under the
present case is of the land notified as slum rehabilitation area under
section 3-C (1) of the Act and further that when such acquisition is to
enable the SRA to carry out the development under the slum
rehabilitation scheme then necessarily the amended provisions of section
14 as falling under Chapter I-A have become applicable; This is clearly
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recognized by the following wordings of the impugned acquisition
notification dated 22 December 2016:
“And whereas, as required by the first proviso to sub-section (1) of
section 14 of Chapter V read with Paragraph (A) of sub-clause (i)
of clause (c) of section 3D of Chapter I-A of the said Act, on
representation from the Chief Executive Officer, Slum
Rehabilitation Authority, Bandra, Mumbai, and after considering
his report for the acquisition of said land it appears to the State
Government that in order to enable the Slum Rehabilitation
Authority to carry out the development under the Slum
Rehabilitation Scheme in the slum rehabilitation area mentioned
in said Schedule, the said land should be acquired;
Now, therefore, in exercise of the powers conferred by sub-
section (1) of section 14 read with paragraph (A) of sub-clause (i)
of clause (c) of section 3D of the said Act, the Government of
Maharashtra hereby declares, by this notice, that it has decided to
acquire the said land.” (emphasis supplied)
81. Thus, when essentially the acquisition is an acquisition falling
under chapter I-A of the slums Act the amended Section 14 (as falling
under chapter I-A) would apply with some difference in as much as the
amending Act, substitute sub-section (1) of section 14 in the following
terms :
“(i) In section 14, in sub-section (1),-
(A) for the portion beginning with the words “Where on
any representation” and ending with the words “clearance area”
the following portion shall be substituted, namely:-
“Where on any representation from the chief executive
officer it appears to the State Government that, in order to enable
the Slum Rehabilitation Authority to carry out development under
the Slum Rehabilitation Scheme in any Slum Rehabilitation Area.”
Thus, considering the legislative scheme of Chapter I-A, section 14(1) as
modified has been incorporated to enable acquisition of the category of
land falling under the said Chapter.
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82. The contention as urged on behalf of the SRA as also the
Society that in the context of acquisition in the present case the provisions
of Section 3B(4)(e) read with Section 13(1) and (2) of the Slum Act need
not be considered as exercise of the power to acquire land as conferred
under Section 14 is an independent power. There can be no quarrel on the
submission that the power to acquire the land under Slums and those
declared as slum rehabilitation areas needs to be exercised only under
Section 14. However in our opinion, the acquisition of land which is
declared as a slum rehabilitation area under Section 3C, cannot be
undertaken defeating the preferential rights conferred on the owner to
undertake a redevelopment under the provisions of section 3B(4)(e) and
section 13 (1) of the Slum Act as held by this Court in Anil Gulabdas
Shah (supra). The respondents to support this submission have also
relied on decision of the Supreme Court in Murlidhar Tekchand Gandhi
(supra). In our respectful opinion the decision of the Supreme Court in
Murlidhar Tekchand Gandhi (supra) would not be applicable to the facts
in hand for more than two reasons. Firstly in Murlidhar Teckchand
Gandhi (supra) the Courts were not concerned with a land declared as a
‘slum rehabilitation area’ under Section 3C(1) as falling under Chapter I-A
but were concerned with a declaration of the land as slum under Section 4
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of the Slum Act. This is clear, firstly from the following observations in the
judgment of the Division Bench of this Court in Murlidhar Teckchand
Gandhi vs. State Of Maharashtra33 in which the petitioners conceded to
the position that the said amended provisions (Chapter I-A) are not
applicable:-
“28 Mr.Sathe’s second and third contention are interconnected
and therefore, are disposed of together. There is no dispute in the
present case that there was no Notification as contemplated by
Section 3-C of Slum Act issued by the Chief Executive officer of the
Slum Rehabilitation Authority. Therefore, Mr.Sathe may be right in
his submission that the provisions of specified Chapters of the
Slum Act, as modified in terms of Section 3-D of the Slum Act
might not apply to the said property. Section 3-B of the Slum Act
empowers the State Government or the Slum Rehabilitation
Authority (SRA) concerned with the previous sanction of the State
Government, to prepare a general Slum Rehabilitation Scheme for
areas specified under sub-section (1) of section 3-A for
Rehabilitation of slums and hutment colonies in such area. The
said property, in the present case, is undoubtedly, a property
situated in the area specified under section 3-A of the Slum Act
and further, even a general Slum Rehabilitation Scheme, as
contemplated by section 3-B of the Slum Act is in place. However,
section 3-D of the Slum Act provides that on publication of Slum
Rehabilitation Scheme under sub-section (1) of section 3-B, the
provisions of other Chapters of Slum Act shall apply to any area
declared as the slum rehabilitation area, subject to certain
modifications. Since, the said property has not been declared as
‘Slum Rehabilitation Area’, Mr. Sathe is right in his contention that
the provisions of other Chapters of Slum Act will apply to the said
property, in their original and not modified form. The question
which therefore arises for determination is whether the
compliance with the provisions contained in sections, 5,11, 12(7)
and 13 of the Slum Act is necessary prior to exercise of powers of
acquisition under Section 14 of the Slum Act and further, whether
in the facts and circumstances of the present case, there has been
any such compliance.” (emphasis supplied)
83. Further in Murlidhar Teckchand Gandhi (supra) the
Supreme Court in considering the challenge to the said decision of the
33 2016(2) Bom CR 539
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Division bench was also concerned with the applicability of the provisions
which were falling outside Chapter I-A of the Slum Act namely the
provisions of Sections 3, 5, 11, 12, 13. This is clear from the following
observations of the Supreme Court as made in the said decision :
“It was urged by Shri Shyam Diwan, learned senior counsel
appearing on behalf of the appellants that there was non-
compliance of the mandatory procedure of the Act as provided
under Sections 3,5,11,12 and 13 which ought to have been
resorted to before issuing notification under section 4 of the Act. It
was also urged that show-cause notice issued under Section 14 of
the Act is non-est. As due to the operation of the interim order of
stay on notification under section 4 of the Act, there was no slum
area as such in terms of Section 4 of the Slum Act.
… …
“Shri Tushar R. Mehta, Additional Solicitor General, and Shri
Ashok H. Desai learned senior counsel appearing on behalf of the
respondents urged that it was not necessary to make compliance
with the provisions of Sections 3, 5, 11, 12 and 13 of the Act while
invoking the provisions of acquisition under Section 14. Section 14
is an independent provision and its operation is not dependent
upon compliance with the provisions of Sections 3, 5, 11, 12 and
13. Opportunities were granted to the appellants to improve the
conditions of the slum, its condition has been noted by the High
Court in its order. Though earlier notice under Section 14 was
issued thereafter, fresh notice for hearing was issued after the
Division Bench had dismissed the previous writ appeal which
order was challenged before this Court. When the interim order
was operative, no final order was passed. Appellants have prayed
for enhancement of compensation for which they filed an appeal,
which was later withdrawn. Fair and due procedure of law have
been followed and compensation had been determined. Thus,
there was no violation of provisions of Article 300 A of the
Constitution of India. With respect to the development, after the
acquisition, it is the choice of the slum dwellers and they decided
it to hand-over the project for redevelopment by entering into an
agreement under the Development Control Regulation No. 33 (10)
to M/s. Pooja Developers.
First, we consider the question raised by the
learned senior counsel on non-compliance of the provisions of Act.
Sections 5, 11, 12(10), 13 and 14 are extracted hereunder:
“[5 Power of Competent Authority of execution of works of
improvement]
(1) Where the Competent Authority is satisfied that any slum area
or any part thereof is capable of being improved, at a reasonable
expense, so as not be a source of danger to the health, safety or
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convenience of the public of that area, it may serve upon the
owner or owners and every mortgagee of the properties in that
area or any part thereof, a notice informing them of its intention
to carry out such improvement works as in its opinion are
necessary and asking each of them to submit his objections or
suggestions, if any, to the Competent Authority, within thirty days
from the date of such notice. A copy of such notice shall also be
displayed at some conspicuous places in the area for the
information of the occupants thereof and for giving them also an
opportunity to submit their objections or suggestions if any. On
such display of the notice, the owners, occupiers and all other
persons concerned shall be deemed to have been duly informed of
the matters stated therein.
(2) After considering the objections and suggestions received
within the time aforesaid, from the owners, occupiers and other
persons concerned, the Competent Authority may decide and
proceed to carry out the improvement works with or without
modifications or may postpone them for a certain period or cancel
the intention to undertake the works.]
11.
Power to declare any slum area to be a clearance area
(1) Where the Competent Authority, upon a report from any of its
officers or other information in its possession, is satisfied as
respects any slum area, that the most satisfactory method of
dealing with the conditions in the area is the demolition of all the
buildings in the area, the Authority shall cause that area to be
defined on a map in such manner as to exclude from the area any
building which is not unfit for human consumption or dangerous
or injurious to health, and then it shall, by an order notified in the
Official Gazette, declare the area so defined to be a clearance area,
that is to say, an area to be cleared of all buildings in accordance
with the provisions of this Act. The order shall also be given wide
publicity in such manner as may be prescribed.
(2) Before any area is declared to be a clearance area, the
Competent Authority shall satisfy itself as to the sufficiency of its
resources, and ascertain the number of persons who are likely to
be dishoused in such area, and thereafter, to take such measures
as are practicable whether by the arrangement of its programme
or by securing as far as practicable such accommodation in
advance of displacements which will from time to time become
necessary as the demolition of buildings in the area, or in different
parts thereof proceeds, or in any other manner so as to ensure that
as little hardship as possible is inflicted on those dishoused. The
State Government may, subject to the provisions of Chapter V, and
subject to the condition of previous publication, make rules for the
purpose of carrying out the provisions of this sub-section; and
without prejudice to the generality of this provision, Such rules
may provide for ascertaining the number and names of persons
who on a date to be specified by the Competent Authority were
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occupying the buildings comprised in the clearance area, for the
location of the accommodation either temporary or permanent
and extent of floor areas to be provided to those who are
dishoused, for occupying the building after it is re-erected, for rent
to be paid for the temporary accommodation provided to those
who are dishoused, the circumstances in which persons provided
with temporary accommodation may be evicted, and for purposes
connected with the matter aforesaid. The provisions of sub-section
(2) of section 46 shall apply in relation to rules made under this
section as they apply to rules made under that section.
(3) The Competent Authority shall forthwith transmit to the
Administrator a copy of the declaration under this section,
together with a map and statement of the number of persons who,
on the date specified by the Competent Authority under sub-
section (2), were occupying buildings comprised in the clearance
area.
12. Clearance order
(10) Subject to the provisions of this Act, and of any other law for
the time being in force in relation to town planning and to the
regulation of the erection of buildings where a clearance order has
become operative, the owner of the land to which the 1[clearance
order] applies, may redevelop the, land in accordance with the
plans approved by the Competent Authority, and subject to such
restrictions and conditions (including a condition with regard to
the time within which the redevelopment, shall be completed), if
any, as that Authority may think fit to impose :
Provided that an owner who is aggrieved by a restriction or
condition so imposed on the user of his land, or by a subsequent
refusal of the Competent Authority to cancel or modify any such
restriction or condition may, within such time as may be
prescribed, appeal to the Tribunal and its decision shall be final.
13. Power of Competent Authority to redevelop clearance area
(1) Notwithstanding anything contained in sub-section (1) of
section 12 the Competent Authority may, at any time after the
land has been cleared of buildings in accordance with a clearance
order, but before the work of redevelopment of that land has been
commenced by the owner, by order, determine to redevelop the
land at its own cost, if that Authority is satisfied that it is
necessary in the public interest to do so.
(2) Where land has been cleared of the buildings in accordance
with a clearance order, the Competent Authority, if it is satisfied
that the land has been, or is being, redeveloped by the owner
thereof in contravention of plans duly approved, or any
restrictions or conditions imposed under sub-section (10) of
section 12, or has not been redeveloped within the time, if any,
specified under such conditions, may, by order, determine to
redevelop the land at its own cost:
Provided that, before passing such order, the owner shall be given
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a reasonable opportunity of showing cause why the order should
not be passed.
14. Power of State Government to acquire land
(1) Where on any representation from the Competent Authority it
appears to the State Government that, in order to enable the
Authority 1[to execute any work of improvement in relation to
any slum area or any building in such area or] to redevelop any
clearance area, it is necessary that any land within adjoining or
surrounded by any such area should be acquired, the State
Government may acquire the land by publishing in the Official
Gazette, a notice to the effect that the State Government has
decided to acquire the land in pursuance of this section:
[Provided that, before publishing such notice, the State
Government, or as the case may be, the Collector may call upon by
notice the owner of, or any other person who, in its or his opinion
may be interested in, such land to show cause in writing why the
land should not be acquired with reasons therefore, to the
Collector within the period specified in the notice; and the
Collector shall, with all reasonable dispatch, forward any
objections so submitted together with his report in respect thereof
to the State Government and on considering the report and the
objections, if any, the State Government may pass such order as it
deems fit].
3 [(1 A) The acquisition of land for any purpose mentioned in sub-
section (1) shall be deemed to be a public purpose.]
(2) When a notice as aforesaid is published in the Official Gazette,
the land shall on and from the date on which the notice is so
published vest absolutely in the State Government free from all
encumbrances.
It is apparent from a bare reading of the aforesaid
provisions that Section 14 with respect to acquisition is not
conditional upon Chapter IA from Section 3A to 3W of the Act
which contains provisions as to Slum Rehabilitation Scheme. We
find that Slum Rehabilitation scheme has a totally different object
under Chapter IA. It contains procedure with respect to slum
rehabilitation which is not so in case of acquisition. Thus, the
provisions of Chapter 1 A are not at all attracted.”
84. Thus it is clear from the above observations of the Supreme
Court that the Court was not called upon to decide the question, as posed
for consideration in the present case, namely the preferential right created
by the provisions of section 3B(4)(e) read with Section 13 (1) of the
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Slum Act, as falling under chapter I-A of the Slums Act. The Court was
also not called upon to decide an issue falling under chapter I-A of the Act.
Further the contention of Mr. Samdani that the decision in Anil
Gulabdas Shah (supra) stands overruled also cannot be accepted. The
Supreme Court has not even referred to the decision of the Division Bench
in Anil Gulabdas Shah nor the parties before the Supreme Court relied on
the said decision. Further there is no question of the decision being
impliedly overruled, when the Supreme Court has made the observations
as emphasized by us above namely “It is apparent from a bare reading of
the aforesaid provisions …….”, in saying so the Court was referring to the
provisions as extracted by the Court namely Section 11, 12, 13 and 14 of
the Slum Act which were falling outside Chapter I-A of the Act. This for
the reason that the issue before the Supreme Court was not an issue
similar to the one as arising in Anil Gulabdas Shah (supra).
85. The contention as urged on behalf of the society that by the
impugned notification dated 22 December 2016 issued under section
14(1) of the Slum Act the land had stood vested in the State Government
and by virtue of such vesting the petition itself is not maintainable also
cannot be accepted in as much as it cannot be countenanced that this
court is precluded from examining the decision of the State Government
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and the SRA leading to the issuance of impugned notification issued under
section 14-1 of the slums Act and on being satisfied that the decision to
acquire the land had failed to satisfy the test of law, set aside the said
decision.
86. We now briefly refer to the decisions as relied on behalf of the
parties.
87. As noted above, the Division Bench of this Court in Anil
Gulabdas Shah (supra) has held that the owner would have a preferential
right under section 13(1),(2) to undertake re-development of the slum
rehabilitation area and acquisition by the authorities without recognizing
such rights, will be illegal. It is to be noted that this legal position has also
been accepted by the SRA by issuance of a circular dated 9.11.2015 in
which in para 2 the SRA has clearly notified that under section 13(1), in
respect of slums on private lands, the owner would have a primary right
and to that effect earlier circular no.144 has been modified. We find much
substance in the contention of the petitioner that the SRA has accepted
this position in law, of a preferential right conferred on the owner in
issuing this circular which also conforms to the acceptance of the law laid
down by the Division Bench of this Court in Anil Gulabdas Shah (supra).
As rightly contended by the petitioner conduct of the SRA is thus clearly in
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the nature of contemporanea expositio. In support of this contention in our
opinion, the petitioner has rightly relied on the decision of the Supreme
Court in K. P. Verghese vs Income Tax Officer (supra) wherein the
Supreme Court has held that the rule of construction by reference to
contemporanea expositio is a well-established rule for interpreting a statute
by reference to the exposition. The Supreme Court has held thus:
“……These two circulars of the Central Board of Direct Taxes are,
as we shall presently point out binding on the Tax Department in
administering or executing the provision enacted in sub-section
(2), but quite apart from their binding character, they are clearly
in the nature of contemporanea expositio furnishing legitimate aid
in the construction of sub-section (2). The rule of construction by
reference to contemporanea expositio is a well established rule for
interpreting a statute by reference to the exposition it has received
from contemporary authority, though it must give way where the
language of the statute is plain and unambiguous. This rule has
been succinctly and felicitously expressed in Crawford in Statutory
Construction, (1940 Edn.) where it is stated in para 219 thatadministrative construction (i.e. contemporaneous
construction placed by administrative or executive officers
charged with executing a statute) generally should be
clearly wrong before it is overturned; such a construction,
commonly referred to as practical construction, although
non-controlling, is nevertheless entitled to considerable
weight; it is highly persuasive.
The validity of this rule was also recognised in Baleshwar Bagarti
v. Bhagirathi Dass where Mookerjee, J. stated the rule in these
terms:
It is a well-settled principle of interpretation that
courts in construing a statute will give much weight to the
interpretation put upon it, at the time of its enactments and
since, by those whose duty it has been to construe, execute
and apply it.
and this statement of the rule was quoted with approval by this
court in Deshbandhu Gupta Co vs Delhi Stock Exchange
Association Ltd. It is clear from these two circulars that the Central
Board of Direct Taxes, which is the highest authority entrusted
with the execution of the provisions of the Act, understood sub-
section (2) as limited to cases where the consideration for the
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transfer has been understated by the assessee and this must be
regarded as a strong circumstance supporting the construction
which we are placing on that sub-section.”
88. We are also not impressed with the submissions as urged on
behalf of the society that opportunity was available to the petitioner to
undertake re-development of the land under DCR 33 (10) which had come
into force in the year 1997 and having not availed the opportunity of re-
development the land since the year 1997 the petitioner cannot claim any
preferential right under section 13 (1) of the Slums Act as the petitioner
did not undertake re-development for a unreasonable period since 1997.
This submission cannot be accepted for two reasons. Firstly, that in the
year 1997 when DCR 33 (10) was brought into force, it created an
independent right falling under a different enactment/rules namely the
‘Development Control Regulation’ which is a delegated legislation framed
under the Maharashtra Regional Town Planning Act. The provisions of the
DCR cannot be imported to interpret either to construe extinguishment of
any right, of the owners of land under section 13 (1) of the Slums Act.
DCR 33 (10) enables the concerned persons to undertake re-development
of slum areas in a manner as set out under DCR 33 (10). For the purpose
of the Slum Act and more particularly interpretation of section 13 or
section 14 the provisions of DCR 33 (10) cannot be considered to be
relevant. The concerned statutory provisions also do not permit such an
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interpretation. In this context, we refer to the Principles of Statutory
Interpretation, 14th Edition by G. P. Singh. The learned author has
expressed thus:
Para 75….. In interpreting a provision creating a legal fiction,
the court is to ascertain for what purpose the fiction is
created, and after ascertaining this, the Court is to assume all
those facts and consequences which are incidental or
inevitable corollaries to the giving effect to the fiction. But in
so construing the fiction it is not to be extended beyond the
purpose for which it is created, or beyond the language of the
section by which it is created. It cannot also be extended by
importing another fiction. The principles stated above are
‘well-settled’. A legal fiction may also be interpreted narrowly
to make the statute workable.”
The above principle has been referred with approval by the
Supreme Court in its decision in State of Karnataka vs State of Tamil
Nadu ors. (supra)
89. We also cannot accept the submission as urged on behalf of
the society that since the society has submitted a scheme prior to the
petitioner’s scheme, the preferential right in favour of the petitioner does
not survive. This submission pre-supposes that there is a preferential right
in the petitioners to redevelop the said land. We are quite surprised by
this submission as made on behalf of the society. This firstly, for the
reason that even otherwise society’s scheme was admittedly not complete
so as to be stated to fulfill the requirements of a valid application (See
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Atesham Ahmad Khan and others vs Lakadawala (supra)) The nature
of the proposal/scheme of the society for not fulfilling the essential
requirements can also be seen from the contents of para 5 and 10 of the
affidavit in reply of the society dated 9.11.2017, in Chamber Summons
No.232 of 2017 (page 589 and 592-593). The society has clearly admitted
that there was no NOC from the City Survey Office and Engineering
Department of SRA and NOCs were awaited and that the NOC cannot be
issued until acquisition of the property is done.
90. Another aspect of the case is the legal consequence created
by the proviso to section 14 (1) of the Slums Act. The proviso to section 14
of the Slums Act would clearly cast an obligation on the State Government
to consider the reports of the SRA as also objections which were raised by
the petitioner to the acquisition and considering the said material, may
pass appropriate order as it deems fit. In the present case, the Hon’ble
Minister has passed an order dated 17 th November 2016 directing that
acquisition of the land under section 14 (1) be undertaken. However, this
order was not communicated to the petitioner as also the order does not
contain any reasons for which objections of the petitioners have been
rejected nor any reasons are borne out by the record. In our opinion,
surely the requirement of law was that the order dated 17 th November
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2016 passed by the Hon’ble Minister, though not communicated was
required to contain reasons for rejection of the petitioner’s objections as
also the same was required to be communicated to the petitioner. This
conclusion which we have reached is supported by the decision of the
Supreme Court in Bachhitar Singh vs State of Punjab and another
(supra). The Supreme Court in para 9 and 10 of the decision has held that
it is necessary for the government to communicate the order/remarks.
The Supreme Court observed thus:
“9. The question, therefore, is whether he did in fact make such
an order. Merely writing something on the file does not amount to
an order. Before something amounts to an order of the State
Government two things are necessary. The order has to be
expressed in the name of the Governor as required by clause (1) of
Article 166 and then it has to be communicated. As already
indicated, no formal order modifying the decision of the Revenue
Secretary was ever made. Until such order is drawn up the State
Government cannot in our opinion be regarded as bound by what
was stated in the file. As long as the matter rested with him the
Revenue Minister could well score out his remarks or minutes on
the file and write fresh ones.
10. The business of State is a complicated one and has
necessarily to be conducted through the agency of a large number
of officials and authorities. The Constitution therefore requires and
so did the Rules of Business framed by the Rajpramukh of PEPSU
provide that the action must be taken by the authority concerned in
the name of the Rajpramukh. It is not till this formality is observed
that the action can be regarded as that of the State or here, by the
Rajpramukh. We may further observe that, constitutionally
speaking, the Minister is no more than an adviser and that the head
of the State, the Governor or Rajpramukh, is to act with the aid
and advice his Council of Ministers. Therefore, until such advice is
accepted by the Governor whatever the Minister or the Council of
Ministers may say in regard to a particular matter does not become
the action of the State until the advice of the Council or Ministers is
accepted or deemed to be accepted by the Head of the State.
Indeed, it is possible that after expressing one opinion about a
particular matter at a particular stage a Minister or the Council of
Ministers may express quite a different opinion, one which may be
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completely opposed to the earlier opinion. Which of them, can be
regarded as the “order” of the State Government ? Therefore, to
make the opinion amount to a decision of the Government it must
be communicated to the person concerned. In this connection we
may quote the following from the judgement of this Court in the
State of Punjab vs Sodhi Sukhdev Singh.
“Mr.Gopal Singh attempted to argue that before the final
order was passed the Council of Ministers had decided to accept
the respondent’s representation and to reinstate him and that
according to him, the respondent seeks to prove by calling the two
original orders. We are unable to understand this argument. Even if
the Council of Ministers had provisionally decided to reinstate the
respondent that would not prevent the Council from reconsidering
the matter and coming to a contrary conclusion later on, until a
final decision is reached by them and is communicated to the
Rajpramukh in the form of advice and acted upon by him by
issuing an order in that behalf to the respondent.”
Thus, it is of the essence that the order has to be
communicated to the person who would be affected by that order
before the State and that person can be bound by that order. For,
until the order is communicated to the person affected by it, it
would be open to the Council of Ministers to consider the matter
over and over again and, therefore, till its communication the order
cannot be regarded as anything more than provisional in
character.”
91. In State of West Bengal vs M.R.Mondal and another
(supra) the Supreme Court in para 16 observed thus:
“An order passed but retained in file without being communicated
to the plaintiff can have no force or authority whatsoever and the
same has no valid existence in the eye of the law or claim to have
come into operation and effect. No reliance can be placed on the
same to even assert a claim based on its contents.”
92. Also in Oryx Fisheries Private Limited vs Union of India
(supra) the Supreme Court held that even in a quasi-judicial proceeding,
justice is rooted in confidence and justice is the goal of a quasi-judicial
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proceedings also. If the functioning of a quasi-judicial authority has to
inspire confidence in the minds of those subjected to its jurisdiction, such
authority must act with utmost fairness. Referring to the decision in Kranti
Associates (P) Ltd vs Masood Ahmed Khan (2010) 9 SCC 496 the Supreme
Court in paragraph 40 observed thus :
“40. In Kranti Associates this Court after considering various
judgments formulated certain principles in SCC para 47 of the
judgment which are set out below: (SCC pp. 510-512)
“(a) In India the judicial trend has always been to record
reasons, even in administrative decisions, if such decisions affect
anyone prejudicially.
(b) A quasi-judicial authority must record reasons in
support of its conclusions.
(c) Insistence on recording of reasons is meant to serve
the wider principle of justice that justice must not only be done it
must also appear to be done as well.
(d) Recording of reasons also operates as a valid
restraint on any possible arbitrary exercise of judicial and quasi
judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised
by the decision-maker on relevant grounds and by disregarding
extraneous considerations.
(f) Reasons have virtually become as indispensable a
component of a decision making process as observing principles of
natural justice by judicial, quasi judicial and even by administrative
bodies.
(g) Reasons facilitate the process of judicial review by
superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional governance is in favour
of reasoned decisions based on relevant facts. This is virtually the
lifeblood of judicial decision making justifying the principle that
reasons is the soul of justice.
(i) Judicial or even quasi judicial opinions these days
can be as different as the judges and authorities who deliver them.
All these decisions serve one common purpose which is to
demonstrate by reason that the relevant factors have been
objectively considered. This is important for sustaining the
litigants’ faith in the justice delivery system.
(j) Insistence on reason is a requirement for both
judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candidenough about his/her decision making process then it is impossible
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Pvr 129 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docto know whether the person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.(l) Reasons in support of decisions must be cogent,clear
and succinct. A pretence of reasons or 'rubber stamp reasons' is not
to be equated with a valid decision-making process.(m) It cannot be doubted that transparency is the sine
qua non of restraint on abuse of judicial powers. Transparency in
decision making not only makes the judges and decision makers
less prone to errors but also makes them subject to broader
scrutiny. (See David Shapiro in Defence of Judicial Candor (1987)
100 Harv. L.Rev. 731-37.)(n) Since the requirement to record reasons emanates
from the broad doctrine of fairness in decision making, the said
requirement is now virtually a component of human rights and was
considered part of Strasbourg Jurisprudence. See Ruiz Torija vs
Spain EHRR at p.562 para 29 and Anya v University of Oxford,
wherein the Court referred to Article 6 of the European Convention
of Human Rights which requires, 'adequate and intelligent reasons
must be given for judicial decisions.'(o) In all common law jurisdictions judgments play a
vital role in setting up precedents for the future. Therefore, for
development of law, requirement of giving reasons for the decision
is of the essence and is virtually a part of 'due process.'"It is thus clear that there is a requirement of recording reasons
which is an essential requirement in exercise of a quasi-judicial power by
the authorities. Thus, reasons were required to be recorded by the Hon'ble
Minister in support of the conclusions that has reached in a cryptic order
dated 17th November 2016.
93. We also accept the contention as urged on behalf of the
petitioner that the decision of the Supreme Court in Murlidhar
Teckchand Gandhi (supra), Twin Deccan Builders vs State of
Maharashtra (supra), and in Pratap Singh Vallabhdas vs State of
Maharashtra (supra), cannot be relied as a precedent on the of
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Pvr 130 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docinterpretation of section 13(1) read with section 3B(4)(e) of the Slum Act
as falling under Chapter I-A, creating preferential rights in the petitioner/
owner of the land, to undertake redevelopment. In the said decisions, the
Court was not concerned with land which was declared as a 'slum
rehabilitation area' under section 3C(1) of the Slums Act but, was
concerned with the land which was declared as a slum under Section 4 of
the Slums Act. As discussed above, the legislative scheme is materially
different when the land is declared as a slum under section 4 and to a land
which is declared as a slum rehabilitation area under section 3C (1). We
may note that the ratio decidendi of these decisions is certainly not as to
what is being canvassed by the respondents. The subject matter of
consideration of the Court in the said decision is certainly not similar to
the issues which fall for our consideration in the present case. For a
decision to be followed for its precedential value, what is necessary is to
be seen what constitutes the ratio decidendi and not some conclusions
based upon some facts which may appear to be similar. The duty of the
court would be to ascertain as to what is the ratio decidendi of the
judgment. As noted above in detail, the Supreme court in Murlidhar
Teckchand Gandhi (supra) was not dealing with the specific issue as in
the present case in regard to the applicability of chapter I-A of the Act or
in respect of a land declared as a slum rehabilitation area' under section
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Pvr 131 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.doc3C (1)of the Slum Act. The law is well-settled that uncomparable facts
make a world of difference between conclusions which would be arrived
in two cases. In view of this clear position, in our opinion the judgment of
the Supreme Court in Murlidhar Teckchand Gandhi (supra) cannot
operate as a ratio decicendi in the present case. The law on the Doctrine of
ratio decidendi needs to be noted. In Regional Manager vs Pavan Kumar
Dubey (supra) in para 7 has observed thus:
7. "It is the rule deducible from the application of law to the facts
and circumstances of a case which constitutes its ratio decidendi and not
some conclusion based upon facts which may appear to be similar. One
additional or different fact can make a world of difference between
conclusions in two cases even when the same principles are applied in
each case to similar facts."94. In the Constitution Bench decision of the Supreme Court in
Union of India vs Chajju Ram (supra) in holding that the decision is an
authority for that it decides and not what can be logically deduced
therefrom. In para 23, the Court observed as under :
"23. It is now well settled that a decision is an authority for what it
decides and not what can logically be deduced therefrom. It is equally
well settled that a little difference in facts or additional facts may lead to
a different conclusion."95. We are also not persuaded to accept the submissions of
Mr.Samdani learned senior counsel for the Society, that from the year
1979 when part of the land was declared as a slum under section 4 of the
Slums Act and thereafter in the year 1997 when DCR 33 (10) came into
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Pvr 132 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.doceffect no steps were taken by the petitioner as also no steps were taken by
the petitioner to redevelop the land in question and thus the acquisition of
land is just and proper. Mr.Samdani learned senior counsel would support
his contention relying on the decision of the Division Bench in Om Sai
Darshan Co-operative Housing Society vs State of Maharashtra (supra)
and Nenshi Monjee vs State of Maharashtra (supra).
96. In Nenshi Monjee (supra), the land was declared as a slum
under section 4 (1) of the Slums Act by a notification dated 31.8.1977. A
show cause notice dated 21.12.2004 was issued under section 41 of the
Act to the petitioner as also an intimation of the show cause notice was
pasted at the site in presence of panchas. The petitioner failed to respond
to the show cause notice. As there was no response to the show cause
notice, the show cause notice was also published in two daily newspapers.
No response was submitted by the petitioner therein and ultimately by a
notification dated 22.12.2005 which was almost one year after the
issuance of the show cause notice, the State Government acquired the land
in question. It is in these circumstances, the Court considered the
application of the provisions of DCR 33 (10) and observed that in the facts
of the case, if the petitioners were to undertake the slum rehabilitation
scheme on their own, the petitioners were required to obtain 70% consent
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Pvr 133 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docof the slum-dwellers for undertaking a slum rehabilitation scheme. We are
afraid that this judgment would not assist the society in any manner. In
the present case, the petitioner had objected to the show cause notice
under section 14(1); secondly it is difficult to reach a conclusion that there
was delay on the part of the petitioner to express its willingness and come
forward to re-develop the land after it was declared as a slum
rehabilitation area (declared on 11 March 2011). Considering the
correspondence, it cannot be said that the petitioner was sleeping over its
rights. In any case, after issuance of the notification under section 3C
declaring the land as a slum rehabilitation area, we cannot attribute any
gross conduct of delay on the part of the petitioner in sleeping over their
rights so as to non-suit the petitioner on that ground.
97. The decision in Om Sai Darshan society (supra) the court
was dealing with the issue as noted by the Court in para 2 of the decision
which reads thus :
"This petition under Article 226 of the Constitution of India interalia
seeks to challenge the orders of eviction dated 4 th March 2005 issued by
the respondent no.3 (Mumbai Housing and Area Development Board)
against the members of the petitioner no.1 proposed society under
sections 33 and 38 of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act 1971 (hereinafter referred to as "the
slum Act"). In the said notices, it is alleged that the members of the
petitioner no.1 to whom notices have been addressed have refused to
shift to the alternative accommodation offered by the developer i.e
respondent no.7. It is stated in the notices that if the concerned persons
failed to show cause, action of eviction will be taken under sections 33
and 38 of the Slum Act. The second prayer in this petition is for a writ of::: Uploaded on - 13/06/2018 15/06/2018 01:26:01 :::
Pvr 134 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docmandamus directing Respondent nos.2,3 (Slum Rehabilitation Authority)
and respondent no.6 (Deputy Collector, SRA) to hear the applications
made by the petitioners for grant of Index-II for development of the
property in favour of the petitioner no.1 proposed society. The petitioners
have taken out a notice of motion for interim protection against
demolition. An order of status quo has been granted on 12 th December
2005 and the same has been continuing."In dealing with the said issues which are quite different from
the issues before us, the Court considered a question whether the issuance
of notification under section 3C(1) of the Slum Act, is a condition
precedent for sanction of slum development scheme governed by DCR 33
(10). The court held that issuance of notification under section 3C(1) of
the Slum Act is not a condition precedent for sanction of a slum
redevelopment scheme governed by DCR 33 (10). In our opinion, this
decision would not be applicable to the facts in hand. In any event, in the
facts of the case, the land was declared as a slum rehabilitation area under
section 3C (1) for the first time on 11 March 2011. The law no where
creates an automatic mandate on the owner of the land to redevelop slum
immediately when it is either fully or partly notified as a slum or a slum
rehabilitation area. On the contrary, for all these years since 1979,
nothing precluded the SRA from using appropriate powers and issuing
directions for maintenance and/or betterment of the slum dwellers. Surely
it is an obligation on the authorities to utilize the powers as conferred on
the authorities in a balanced manner and to further the real object and
purpose of the legislation and not to exercise jurisdiction only on specific
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Pvr 135 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docissues which would not only delay the development but also add to the
suffering of the slum dwellers. A reasonable, effective, mitigating and a
balanced approach is required to be adopted by the authorities so that the
slum redevelopment projects become effective and are not stuck into
litigation for large number of years. It is for this purpose that right from
inception the SRA is required to find out effective and appropriate
solutions and if need so arises in consultation with the State Government
and other planning authorities, by taking into confidence all the stake
holders. It is only when such approach is adopted the legislation will
become effective and would benefit those who deserve to be benefitted.
Though the legislation can be said to have immensely benefited to
rehabilitate the slum dwellers but at the same time it cannot be
overlooked that it has created large litigation. It is high time that such
litigious issues are avoided and the slums are eradicated by providing
decent and legitimate housing facilities to the slum dwellers with utmost
expediency. The efficiency of administering the Act is surely in the hands
of the SRA and the State Government. If appropriate and effective steps
are taken by the concerned officers keeping in view the larger public
interest and the object the enactment intends to achieve an ideal situation
can surely be brought about. This would also achieve the constitutional
object as enshrined in Articles 38, 39, 48 and 49 of the Constitution read
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Pvr 136 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docwith article 21. The responsibilities on the authorities is onerous and
more particularly when large urban areas like Mumbai are in need of such
balanced, efficient and effective implementation of such social welfare
legislation.
98. Lastly the decision in Jagnnath Hanumant Sonawane Ors.
vs. S.R.A Ors.34 rendered by the learned Single Judge of this Court is
also not applicable in the facts of the present case. The issue which fell for
consideration of the Court was a challenge to an order passed under
Section 3C(1) of the Slum Act declaring the land in question in the said
proceedings as a 'slum rehabilitation area', without issuance of a show
cause notice to the petitioner who inherited the leasehold interest in the
land. It is in this context analyzing the provisions the Court was of the
view that the exercise of the powers under Section 3(1) by the Chief
Executive Officer, is not a legislative exercise of power so as to exclude
principles of natural justice. We are afraid as to how this decision would
be of any assistance to the Society. The petitioner has not raised any
challenge to the declaration of the land in question as a slum
rehabilitation area under section 3C(1) of the Slum Act.
99. We thought it appropriate not to burden this judgment
34 Writ Petition No.2488 of 2011, order dt.11/5/2011
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Pvr 137 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docdiscussing other decisions as cited on behalf of the parties as these
decisions are not arising in the context of declaration of a slum
rehabilitation area under Section 3C of the Slum Act wherein the
provisions of Chapter I-A were not attracted. We have referred in detail,
only those decisions which in our opinion were relevant and necessary in
the context and adjudication of the issues to be decided.
100. Before we conclude and in addition to the above discussion,
we may broadly summarize the reasons which in our opinion would
render the impugned acquisition to be illegal:-.
i. The SRA/ State Government has acted in patent disregard to
the preferential rights of the petitioner to undertake
redevelopment of the said land as available under the
provisions of section 3B(4) (c) and (e) read with Section
13(1) falling under Chapter I-A of the Slum Act.
ii. There was a failure to recognize these rights of the
petitioner/owner, by the SRA and the State Government,
Such rights if were to be recognized by the authorities, the
petitioner would have surely availed to undertake
redevelopment of the said land.
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Pvr 138 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.dociii. The consequence of non-adherence/breach of these
provisions and non-recognition of the said rights as conferred
on the owner, and directly resorting to acquisition of the land
by exercising powers under section 14(1) would render
nugatory the said statutory provisions, which bring about no
different consequence which the owner would bring about,
without the acquisition of the land, namely, the
redevelopment of the slum rehabilitation area.
iv. Permitting such exercise of power oblivious to the said
provisions of the Slum Act so as to acquire the slum
rehabilitaion area, would be nothing short of conferring
arbitrary powers to pick and choose lands for acquisition at
the discretion of the SRA/State Government, resulting in
defeating the statutory intent as created by the said
provisions.
v. Considering the declaration of the said land as a slum
rehabilitation area vide notification issued under Section
3C(1) of the Slum Act dated 11 March 2011, and the
consistent assertion of the petitioner to undertake
redevelopment, an opportunity was required to be conferred
on the petitioner to undertake redevelopment in consonance
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Pvr 139 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.docof the law laid down by the Division Bench in Anil Gulabdas
Shah (supra) and the SRA's own circular dated 9 November
2015 conferring preferential right on the land owners to
undertake redevelopment as per section 13(1) of the Act and
the consequential actions taken in other cases.
vi. The SRA has selectively acted in deciding to acquire the land
in question as the petitioner was not called upon at any point
of time to undertake the development as issued in many other
cases. Fairness in resorting to acquisition proceedings is a sine
qua non and requirement of Article 14 of the Constitution.
vii.And lastly as noted above, the SRA had not examined the
authenticity of the documents which formed part of the
proposal of the society to acquire the land. It is thus difficult
to accept that there was at all a valid proposal to be acted
upon.
viii. The Order passed by the State Government under
Section 14(1) in the present case also cannot be supported
by any acceptable legal measure to uphold the acquisition
when tested on the touchstone of Article 14 of the
Constitution.
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Pvr 140 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.doc101. In view of our conclusion that the impugned notification has
been issued in violation of the provisions of section 3B(4)(c)and (e) and
section 13(1) falling under Chapter I-A, in such a situation the Court
cannot be said to be lacking in power in exercise of its jurisdiction under
Article 226 to quash the notification. We thus cannot accept the contention
of the respondents that in view of the land having vested in the State
Government the petitioner's remedy is to receive monetary compensation
and avail of a remedy under Section 17(6) of the Slums Act, considering
the view we have taken on the illegality of the acquisition. The law in this
regard is well settled. Further the Court had also granted interim
protection to the petitioner, by an interim order dated 27 January 2017
the Court had directed the parties to maintain status quo as it existed. The
said order continues to operate till date.
102. As a sequel to the above discussion, we answer the questions
as framed by us as under :
(i) The petitioner as a owner of the land has a preferential
right to undertake redevelopment of the land in view of the
specific provisions as contained in section 3B(4)(c) and (e)
and section 13(1) falling under Chapter I-A of the slums Act.
We are in complete agreement with the view taken by the
Division Bench in the case of Anil Gulabdas Shah (supra)
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Pvr 141 WRIT PETITION INDIAN CORK -FINAL SUNDAY -RANE.doc
(ii) The authorities having failed to recognize the aforesaid
rights of the petitioner, the acquisition of the land under
Section 14 (1) of the Slums Act is rendered illegal and void
ab initio.103. We accordingly set aside the impugned notification dated 22
December 2011 issued under section 14(1) of the Slums Act and the
consequential notice dated 9 January 2017 issued by the SRA. We direct
the respondent nos.1 and 2 to process the petitioner's
application/proposal for implementation of a slum rehabilitation scheme
as per law, as expeditiously as possible and preferably within a period of
eight weeks from today.
104. The writ petition stands allowed in the aforesaid terms,
however, there shall not be order as to costs.
105. The pending Chamber Summons no.232 of 2017 does not
survive. It is accordingly disposed of.
(G.S.KULKARNI,J) (SHANTANU KEMKAR,J)::: Uploaded on - 13/06/2018 15/06/2018 01:26:02 :::