Writ Petition No. 91 of 2002. Case: The Reserve Bank Employees' Snehdhara Cooperative Housing Society Ltd. Vs The State of Maharashtra & Ors.. High Court of Bombay (India)

Case NumberWrit Petition No. 91 of 2002
CounselFor Appellant: Mr. Milind Sathe, Senior Advocate with Mr. Sandeep Goyal i/b. Mulla & Mulla & Craigie Blunt & Caroe and For Respondents: Mr. G. W. Mattos, AGP, Mr. P.G. Lad, Adv., Mr. Y. S. Bhate with Mr. Kirankumar Phakade i/b Mr. Pravinkumar More, Advs., Mr. Shailesh Shah, Senior Advocate with Mr. Chirag Balsara, Mr. Aftab Diamondwala & Homza ...
JudgesMohit S. Shah, C. J. & M. S. Sonak, J.
IssueMaharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1972 - Section 14(1); Slum Act; Kerala Government Land Assignment Act, 1960; Maharashtra Housing and Area Development Act, 1977; Constitution of India - Articles 226, 277, 14, 300A
Judgement DateSeptember 30, 2014
CourtHigh Court of Bombay (India)

Judgment:

M. S. Sonak, J.

1. By this petition under Articles 226 and 277 of the Constitution of India, the petitioner questions notice dated 7 April 2000 and the Corrigendum dated 25 May 2001 thereto, issued by the State of Maharashtra under Section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1972 (Slum Act) for the acquisition of the petitioner's property admeasuring 4780 sq. meters situate at Vile Parle, Taluka Andheri, Mumbai Suburban District bearing CTS Nos. 708, 709, 710 Part, 714/1 Part, 719 Part and 724/1 to 36 (said property).

2. Based upon the application dated 2 August 1993 made by respondent no. 9, an association of slum dwellers, the Deputy Collector (Encroachment) -- respondent no. 2, vide notification dated 29 September 1993 declared the said property as a 'slum area' under Section 4(1) of the Slum Act. By notice dated 11 February 1994, respondent no. 2 directed the petitioner to carry out certain improvement works in and over the said property with regard to provision of w.c., water connection, internal roads, sewerage and drainage facilities. Without prejudice to the pending challenge against declaration of the said property as slum area, the petitioner undertook and reported compliances on 13 April 1994. Without verification, respondent no. 2 proceeded to issue notices dated 13 April 1994 and 30 November 1994, proposing further action under Section 5(i) of the Slum Act in the matters of inspection and survey of the said property. The Slum Tribunal by its judgment and order dated 5 October 1996, dismissed the petitioner's appeal challenging the notification dated 29 September 1993 declaring the said property as a 'slum area'.

3. It is the petitioner's case that respondent no. 8 -- a builder, was behind the declaration of the entire said property as a slum area, even though, hardly an area of about 839.6 sq. meters, from out of the total of 4780 sq. meters, was affected by the slums. In fact, respondent no. 8, relying upon some correspondence had instituted suit no. 466 of 1995, claiming rights and entitlement to develop the said property. Upon realising that there was no possibility of obtaining any reliefs in the said suit, respondent no. 8 applied to the State Government for acquisition of the said property by resort to the provisions contained in Section 14(1) of the Slum Act. Predictably, on 13 February 1997, the learned Single Judge of this Court dismissed notice of motion no. 427 of 1995 in suit no. 466 of 1995 instituted by respondent no. 8, holding that at least prima facie the suit itself is not maintainable. The appeal against the order dated 13 February 1997, was also dismissed by the Division Bench on 22 September 1997.

4. Based upon application of respondent no. 8' for acquisition of the said property, the Collector made a report to the State recommending acquisition to the extent of 1843.1 sq. meters from out of the said property. The report very specifically makes reference to application dated 24 January 1997 made by respondent no. 8 for acquisition of the said property. Notice was issued to the petitioner to show cause why the said property should not be acquired by resort to provisions contained in Section 14(1) of the Slum Act. The petitioner, by its response dated 16 October 1997 pointed out that it had complied with the directions contained in the notice dated 11 February 1994, in the matter of providing improvement works. Further, the petitioner was itself willing to redevelop the said property, including by way of protecting the interests of the slum dwellers, who were occupying an area about 839.6 sq. meters. The petitioner pointed out that respondent no. 8 was behind the proposal of acquisition and was bent upon obstructing the petitioner from undertaking redevelopment by themselves. Same position was reiterated by the petitioner through their lawyer's notice dated 26 December 1997. Notwithstanding all this, the State has issued impugned notification dated 7 April 2000 for acquisition of the said property to the extent of 4074.3 sq. meters. Later on, by corrigendum dated 25 May 2001, this area was enhanced to 4780 sq. meters. As noted earlier, the notification dated 7 April 2000 and corrigendum dated 25 May 2001, are the subject matter of challenge in the present petition.

5. This petition, which was instituted in October 2001, was dismissed by judgment and order dated 2 July 2002 on the ground that it was barred by inordinate delay and laches. The Supreme Court however, by its order dated 4 April 2003, in Special Leave Petition (Civil) No. 20800 of 2002, set aside the judgment and order dated 2 July 2002 and remanded the matter for decision on merits. Accordingly, on 24 June 2003, Rule was issued in the present petition and parties were directed to maintain status quo as obtaining on the said date.

6. In the aforesaid circumstances, Mr. Milind Sathe, learned Senior Advocate for the petitioner made the following submissions:

(A) That the acquisition proceedings under Section 14(1) of the Slum Act are not in public interest but rather in furtherance of the private interest of respondent no. 8 -- builder. Accordingly, the acquisition proceedings are vitiated by malafides and constitute colourable exercise of the power on the part of the State and its Authorities;

(B) From the material on record, it is evident that hardly an area of 839.6 sq. meters from out of the said property totally admeasuring 4780 sq. meters is affected by slums. In such circumstances, the acquisition of the entire said property is nothing but arbitrariness prohibited by Article 14 of the Constitution of India. The acquisition of the said property, is consequently without authority of law and in violation of the constitutional guarantee contained in Article 300A of the Constitution of India;

(C) From the scheme of the Slum Act as also under the provisions of Development Control Regulations 33(10), it is clear that the petitioner as the owner has the first option to develop the property which may be affected by slums. Only where the owner avoids development or is incapable of development that the property in question be acquired by the State by resort to the provisions contained in Section 14(1) of the Slum Act. In the present case, without prejudice, the petitioner had time and again communicated its willingness to develop the said property. In such circumstances, the acquisition of the said property was clearly barred;

(D) Respondent no. 9, which is the association of slum dwellers, has now filed an affidavit on 2 February 2014 in this petition to the effect that they do not support any development being undertaken by respondent no. 8. The affidavit also states that respondent no. 8 misled slum dwellers by stating that it was both willing and competent to execute the slum redevelopment scheme and therefore neither respondent no. 9 nor any of the individual slum dwellers should grant any consent to the petitioner for undertaking redevelopment of the said property. However, in light of the circumstances that respondent no. 8 did not comply with the requisitions of the SRA as contained in communications dated 18 April 2001 and 28 September 2002, the proposal submitted by the architect of respondent no. 8 has been filed. From the manner in which respondent no. 8 has conducted itself, neither respondent no. 9 nor individual slum dwellers have any confidence in the capacity of respondent no. 8 to undertake the redevelopment scheme. For reasons attributable to respondent no. 8, the project has remained pending for over a...

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