I.A. No. 3 of 2012 In Writ Petition (C) No. 342 of 1999. Case: Kamlesh C. Shah & Ors. Vs State of Maharashtra And Ors.. Supreme Court (India)

Case NumberI.A. No. 3 of 2012 In Writ Petition (C) No. 342 of 1999
CounselFor Appearing Parties: K.K. Venugopal, Sudhir Gupta, Mukul Rohatgi and Ashok H. Desai, Sr. Advs., Amarjit Singh Bedi, Rohit Bhat, Mahesh Aggarwal, Aarohi Bhalla, Subodh S. Patil, Sujata Kurdukar, Sanjay V. Kharde, Asha Gopalan Nair, Amar Dave, Narendra Kumar Goyal and Chirag M. Shroff, Advs.
JudgesAltamas Kabir, CJI., Vikramajit Sen and A.K. Sikri, JJ.
IssueMaharashtra Housing and Area Development Act, 1976 - Sections 103A, 103B, 103C(2), 93(5), 103B(5A)(6) (7)
Citation2013 (5) ABR 929, AIR 2013 SC 3501, 2013 (4) AllMR 953, 2013 (5) BomCR 7, JT 2013 (10) SC 363, 2013 (8) SCALE 149, 2013 (7) SCC 510
Judgement DateJuly 03, 2013
CourtSupreme Court (India)


Altamas Kabir, CJI.

  1. Chapter VIII-A, which was introduced into the the Maharashtra Housing and Area Development Act, 1976, hereinafter referred to as "the 1976 Act", in 1986, pertains to the acquisition of "cessed properties" for co-operative societies of occupiers. Soon after its introduction, its validity was challenged in several cases, including the present writ petition. The present writ petition was tagged with W.P. No. 934 of 1992, another case pending in this Court on the same issue. In view of the questions raised in the writ petitions, the matter was initially referred to a Bench of 7-Judges, but, thereafter, by order dated 20.02.2002, the matters have been referred to a Bench of Nine-Judges and are still pending decision.

  2. Since no final decision seems to be in the offing, the writ petitioners have filed IA No. 3 of 2012, for interim reliefs.

  3. The subject matter of the present petition is a property known as "Chhotalal Niwas" situated at Laburnam Road, Gamdevi, Mumbai - 400007, comprising a plot of land bearing Survey No. 7A/492, Malabar Cumbala Hill Division, Mumbai. Treating the said property as a "cessed property", within the meaning of Section 103A of the 1976 Act, the same was acquired by the Maharashtra Housing and Area Development Authority (MHADA), as per Section 103B of Chapter VIII-A of the 1976 Act.

  4. The apparent reason for the introduction of Chapter VIII-A into the 1976 Act appears to be the refusal of the owners of the buildings to effect repairs thereto on account of the freezing of rents from 1st September, 1940. The return which the landlord could reasonably expect from time to time having been frozen, a stage was reached when where rents were no longer sufficient to cover even the taxes payable for the said properties. As a result, the landlords stopped effecting repairs to the tenanted properties which resulted in rapid deterioration of the buildings. Realizing the gravity of the matter, the Legislature enacted "the Building Repairs and Reconstruction Board Act, 1969", which enabled levy on buildings in Greater Bombay as the Legislature felt that from the recovery of the cess in addition to the contribution of substantial amounts to be made by the State Government and the Bombay Municipal Corporation, it might be possible for the Board constituted under the Act to carry out structural repairs to the old buildings to make them safe for habitation. The Legislature also felt that in case structural repairs did not improve the condition of the building, then the Board could undertake reconstruction of the building by pulling down the dilapidated structure and raising a new structure thereupon.

  5. On 26th February, 1986, the Governor of Maharashtra issued Ordinance No. 1 of 1986 to amend the 1976 Act with effect from 26th February, 1986. The Statement of Objects for enactment of the amendment indicates that there are 19,642 cessed old and dilapidated buildings in the island city of Bombay and, out of these, 16,502 buildings were constructed prior to 1st September, 1940, and the majority of the said buildings are about 80 to 100 years old. To make things worse, the freezing of the rents from 1st September, 1940, made it quite impossible for the owners to look after or maintain the buildings, which is one of the reasons for the introduction of Chapter VIII-A in the 1976 Act.

  6. Section 103A of the 1976 Act, which was introduced in 1986 as part of Chapter VIII-A, inter alia, provides that the said Chapter would come into force on and from the commencement of the Maharashtra Housing and Area Development (Second Amendment) Act, 1986 and would apply to all cessed buildings, which had been erected before the 1st of September, 1940, and were classified as belonging to Category ''A'' under Sub-section (1) of Section 84.

  7. Section 103B, which contains the raison d''etre, for the introduction of Chapter VIII-A into the 1976 Act, inter alia, provides for acquisition of cessed property for co-operative societies of occupiers. The scheme envisaged in the said Section is that notwithstanding anything contained in any of the provisions of Chapter VIII or any other law for the time being in force or in any agreement, contracts, judgment, decree or order of any court or tribunal to the contrary, a co-operative society formed or proposed to be formed, under the provisions of the Maharashtra Co-operative Societies Act, 1960, by not less than 70% of the occupiers in a cessed building, may, by written application, request the Board to move the State Government to acquire the land together with the existing building thereupon and where the owner of the building did not own the land underneath or appurtenant to such building, but held the same as a lessee or licensee, then to acquire the right or interest of such owner or person in or over such building or land or both as lessee or licensee together with the existing building, in the interest of its better preservation or reconstruction of a new building in lieu of the old one. Sub-section (2) of Section 103B provides that on receipt of the application made under Sub-section (1), the Board shall, after due verification and scrutiny, approve the proposal if it considers that it is in the interest of better preservation of the building or to be necessary for reconstruction of a new building and shall direct the co-operative society, whether registered or proposed, to deposit with the Board, within the periods specified by it in that behalf, 30% of the approximate amount that would be required to be paid to the owner in that behalf. Sub-section (4) of Section 103B provides that if, on receipt of an acquisition proposal under Sub-section (3), the State Government is satisfied about the reasonableness of the proposal, it may approve the same and communicate its approval to the Board. On receipt of the government approval, the Board under Sub-section (5) was required to forward the acquisition proposal to the Land Acquisition Officer for taking further proceedings in the matter.

  8. An important element of Section 103B is Sub-section (5A), which provides that when acquisition proceedings have been initiated under Sub-section (5) and a notification under Sub-section (5) of Section 93 has been published, the Collector would take and hand over the possession of the acquired property to the Board in accordance with the provisions of Sub-section (6) of Section 93. Sub-section (6) provides that after the land is vested absolutely in the Board on behalf of the Authority, free from all encumbrances, and the amount to be paid to the owner is determined, the Board shall require the society to get itself registered, if it is not registered, till then and to...

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