Summary of Judgement

The Judgement

JUDGMENT (Per G. S. Kulkarni, J.):

Prelude

1.       This petition under Article 226 of the Constitution of India is filed by a Public Trust known as Basilica of Our Lady of the Mount, Bandra (West) Mumbai, (for short “the trust”) through the petitioner its trustee. The trust manages a Church popularly known as the “Mount Mary’s Church” which is a well known shrine in the city of Mumbai.

2.       The petitioner is the owner of land bearing CTS No. B-960 admeasuring about 9371.30 sq. meters, situated at Bandra Mumbai, out of which a small portion of the land admeasuring 1596.40 sq. meters (for short “the land”), stated to be a slum area, is the subject matter of the present proceedings.

3.       The challenge as mounted in the petition is to an action as initiated by respondent No.2/Slum Rehabilitation Authority (for short “SRA”) through its Chief Executive Officer (“CEO”)/respondent No.3, to acquire such land for the purpose of redevelopment of 35 slum tenements situated thereon. It is in the course of acquisition of the said land, the impugned notice dated 29 October 2021 was issued to the petitioner by the CEO – SRA under Section 14 (1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short “the Slum Act”). Such notice was replied by the petitioner.

4.       It is the petitioner’s contention that the impugned notice and the order dated 29 March, 2022 passed on it by the CEO-SRA are patently illegal, on several counts. The primary contention being that the petitioner's preferential right, as owner of the land, to redevelop such land occupied by 35 hutments inter alia to rehabilitate them is sought to be taken away or is not recognized by the CEO - SRA in attempting to compulsory acquire the land, purportedly at the behest of Respondent No.4–Shri Kadeshwari Co-operative Housing Society, a proposed Cooperative Society of the Slum Dwellers (for short “the Proposed Society”) and Respondent No.5-the Developer appointed by the society (for short “the Developer”). It is the petitioner’s case that the said Slum Society giving the petitioner’s land to a private developer, who would make profits under the garb of slum redevelopment is patently illegal as the petitioner’s peremptory right to redevelop its own land encroached by slum dwellers is recognized by law, as consistently held by this Court in its decisions and more particularly in the case of Indian Cork Mills Pvt Ltd v State of Maharashtra & Ors.

5.       On such preliminary backdrop, the prayers as made in the petition can be noted which read thus:-

“(a) that this Hon’ble Court be pleased to issue a writ of certiorari or any other writ, order or direction in the nature of certiorari calling for the records and proceedings in respect of issuance of public notice dated 29th October 2021 (Exhibit W) issued by CEO, SRA (Respondent No.3 herein) and after going through the legality, validity and propriety thereof be pleased to set aside the same.

(b) that this Hon’ble Court be pleased to issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing Respondent No.3 to withdraw/ cancel the Notice dated 29th October 2021 (Exhibit W).

b1      that this Hon’ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the records and proceedings in respect of passing of the Impugned Order dated 29th March 2022 (Exhibit W2) by CEO SRA and after going through the legality, validity and propriety thereof, the Impugned Order dated 29th March 2022 (Exhibit W2) be quashed and set aside.

b2      that this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondent No.2 to withdraw / cancel the Impugned Order dated 29th March 2022 (Exhibit W2).

b3      that this Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondent No.1 not to take any steps pursuant to the Impugned Order dated 29th March 2022 (Exhibit W2) and any report submitted by Respondent Nos.2 and 3 for acquisition of the subject property. 1 2018 SCC Online Bom 1214

(c) Pending the hearing and final disposal of the present Petition, this Hon’ble Court be pleased to stay the effect, implementation and operation of the impugned Notice dated 29th October 2021 and direct Respondent Nos. 1 to 3 not to take any further steps pursuant to the notice dated 29th October, 2021.

c1      pending the hearing and final disposal of the present Petition, this Hon’ble Court be pleased to stay the effect, implementation and operation of the Impugned Order dated 29th March 2022 (Exhibit W2).

c2      pending the hearing and final disposal of the present Petition, this Hon’ble Court be pleased to direct Respondent No.1 not to act upon the Impugned Order dated 29th March 2022 (Exhibit W2) and any proposals submitted by Respondent Nos. 2 and 3 for acquisition of the subject property.”

FACTS

6.       The relevant facts however, in some detail are required to be noted:- The land of the petitioner’s ownership in CTS No. B-960 totally admeasures about 9371.30 sq. mtrs. The acquisition of the land by the impugned notice issued by the SRA is of a small part of the said area which admeasures 1596.40 sq. mtrs.

7.       It is the case of the petitioner that this portion of the land is occupied by 35 slum structures who are encroachers on the petitioner's land. Leaving aside the hutments which are situated on such part of the land admeasuring 1596.40 sq. mtrs., on the remaining land, there are 07 buildings in existence which are called Buildings A to G. The occupants of such 05 buildings have formed a Co-operative housing society having 64 members called as “Mount Nirmala Co-operative Housing Society Ltd.”. However, no cooperative housing society has been formed by occupants of two buildings, namely, Building Nos. E and F. Earlier, qua the larger land, the petitioner had executed a lease in favour of one “Salsette Catholic Co-operative Housing Society” on 31 July, 1969. However, such lease was surrendered by the said society in favour of the petitioner under a registered Deed of Surrender dated 27 July, 2018. The petitioner has contended that initially a small portion of land admeasuring approximately 500 sq. mtrs. out of the subject land was declared as a “slum” under a Notification dated 30 November, 1978 issued by the Office of the Deputy Collector (ENC), published in the Maharashtra Government Gazette Part-I, Bombay Division dated 11 January, 1979 (page 104). The petitioner has contended that subsequently the encroachment over the said land increased as to find slums on an area admeasuring 1596.40 sq. mtrs. as noted hereinabove.

8.       On 20 December, 2001, a public notice was issued by the Deputy Collector (Encroachment/Removal), Western Suburbs, purportedly on an application made by respondent no.4-proposed society of the hutment dwellers. By such public notice, objections were invited for initiating acquisition in respect of a part of CTS No. B-960 admeasuring about 749 sq. mtrs., however, further steps were not taken.

9.       The petitioner contends that the petitioner was in negotiation with the occupants of the hutments. It is stated that series of meetings were held between the parties to discuss the redevelopment proposal qua the land in question. The inclination of the petitioner to redevelop the subject land by taking concrete steps was clearly informed to the hutment dwellers at all relevant times. The petitioner contends that the petitioner’s intention to develop this land admeasuring 1596.40 sq. mtrs. along with the redevelopment of the existing buildings on the remaining portion of its land was a consistent position taken by the petitioner. The petitioner’s redevelopment proposal was in respect of total holding of land admeasuring 10,709 sq. mtrs which includes the entire area of CTS No. B960 and also an area of CTS No.B-961.

10.     On 08 June, 2013, respondent no. 4/the proposed society of the hutment dwellers, addressed a letter to the petitioner’s Rector informing the petitioner that the society had earlier addressed a letter dated 21 March, 2012 intending to develop the slum by appointing a developer and if the society does not receive petitioner’s response within 15 days, the society will approach the SRA for acquisition of the said land. The petitioner, responded to such letter of the society, by his letter dated 13 June, 2013 wherein it was recorded that earlier several meetings were held between the petitioner and the owners of the slum structures. The petitioner also recorded that in all such meetings, the petitioner had always shown its willingness to redevelop the said land. The petitioner also called upon the society / slum dwellers to obtain a written consent from all the slum dwellers for redevelopment of the subject land.

11.     It is contended by the petitioner that thereafter several meetings were held between the petitioner and the society members of the slum dwellers during the period 2013 to 2017, in regard to the redevelopment of the subject land under the provisions of DCR 33(10) read with Appendix IV of the Development Control Regulation for Greater Mumbai 1991 (for short ‘the DCR’) as then prevalent. The petitioner has contended that however, despite repeated requests, the members of the society for some reason or the other did not execute any written consent in the petitioner’s favour, and it appeared that the members of the society were acting under the inference / pressure or at the behest of private developer who was seeking to profiteer from redevelopment of the petitioner’s property.

12.     It is contended by the petitioner that thereafter on 28 September, 2017, the society addressed a letter to the petitioner informing the petitioner that it had appointed a developer namely one M/s. Accord Estates whose appointment was terminated by the Society and that the society hence has approached another developer- respondent no. 5-M/s. Saldanha Real Estate Pvt. Ltd. to undertake redevelopment of the said land. The society called upon the petitioner to grant a NOC in favour of the society / developer for redevelopment at the hands of respondent no.5. It is the case of the petitioner that the petitioner was always ready and willing to redevelop its land which could accommodate the slum dwellers in permanent alternate tenements, hence the petitioner ought not to have been pressurized to grant NOC for redevelopment by a private developer. On 04 January, 2018, the society addressed another letter to the petitioner, which is stated to be a strange stand taken by the members of the society, which was to the effect, that since the slum dwellers have occupied the petitioner’s land since a long period of time, the petitioner had lost its ownership rights on the subject land, and therefore, the petitioner is under a mandate to grant NOC for redevelopment of the said land at the behest of the society.

13.     On 14 July, 2018, the society addressed another letter to the petitioner informing the petitioner of appointment of respondent no.5 as its developer by a resolution passed by the Society again requesting the petitioner to issue NOC for redevelopment of the subject land. The petitioner has contended that the petitioner had no concern with any private arrangement between the society and the developer, when the petitioner was always ready and willing to develop the land, hence, no rights could be created on the petitioner’s land in favour of a private developer by the society.

14.     On 20 October, 2018 the society addressed a letter to the director of the developer/respondent no.5, recording that the society had executed a Development Agreement and Power of Attorney in favour of the developer. It was stated that an earlier developer appointed by the society had not taken any steps for redevelopment of the subject land, hence, respondent no.5 should initiate the “land acquisition process”. As to how a developer could have any locus to initiate any process for acquisition of land cannot be known.

15.     On 13 December, 2018, the society again addressed a letter to the petitioner requesting the petitioner to grant NOC for redevelopment of the said land under the provisions of the Slum Act, as also that a permission of the Charity Commissioner under Section 36 of the Maharashtra Public Trust Act would be required for such purpose.

16.     Quite astonishingly on 04 January, 2019, this time the developer addressed a letter to the petitioner, offering to pay Rs. 3 Crores to the petitioner for grant of a NOC for redevelopment of the subject land, in which the developer inter alia recorded its intention to redevelop the said land and for such purpose, called upon the petitioner to take a quick decision and more shockingly to grant the developer “a conveyance/perpetual lease deed”, in its favour i.e. in favour of Saldanha Real Estate Pvt. Ltd. It was also recorded that the developer had already entered into a Development Agreement with the proposed society for the redevelopment of the slum.

17.     On 04 February, 2019, the society addressed a letter to the petitioner requesting the petitioner not to proceed with the petitioner’s plan of taking up composite redevelopment of the subject land declared as slum, alongwith the redevelopment of other buildings as situated on the remaining portion of the land outside the slum land and grant a NOC to the developer appointed by the Society. Immediately on 19 February, 2019, now the developer by its letter addressed to the petitioner made the same request that the slum property can be developed independently and a composite redevelopment of the subject land along with the other building may not be undertaken. The developer threatened the petitioner that failing this the society would initiate proposal for acquisition of the petitioner’s land affected by slum.

18.     On such backdrop, a meeting was held between the parties on 22 March, 2019 to make an endevour to resolve the issues. On 21 August, 2019, the petitioner addressed a letter to the society referring to such meeting held with the office bearers of the society, thereby requesting the society to execute an irrevocable consent in the petitioner’s favour to undertake redevelopment. Thereafter on 06 October, 2019, the petitioner addressed a letter to the CEO, SRA recording that the petitioner, as owner of the subject land, wishes to redevelop the said land. It was stated that all the occupants of the said land in principle agree on the redevelopment and to grant consent for redevelopment in petitioner’s favour. It was clearly stated that the occupants / slum dwellers, on subject land would be reaccommodated in permanent tenements.

19.     On 10 December, 2019, at the petitioner’s request, its architects namely M/s. Architectural Associates, submitted to the CEO-SRA a “Redevelopment Feasibility Report” in regard to the redevelopment of the land in question, along with the redevelopment of Nirmala Colony, being a proposal for the petitioner’s total contiguous land including the subject land as occupied by the slum dwellers.

20.     To pursue its decision to develop the land, on 07 February, 2020 the petitioner addressed a letter to the CEO – SRA, informing him that the petitioner, as owner of the subject land, intended to redevelop the land for which it had already initiated a dialogue with the slum occupants. It was recorded that a presentation of the feasibility of the project was shown to the residents, which was well accepted by them. It was stated that the petitioner was in the process of obtaining a NOC from the occupants so that the petitioner can start the process of redevelopment of the land occupied by the slum. The petitioner also requested that the land be denotified as a slum.

21.     On 30 September, 2020, the CEO, SRA addressed a letter to the petitioner informing the petitioner that the area of 1596.40 sq. mtrs. from CTS No. B-960 was proposed to be declared as “slum rehabilitation area” under the provisions of Section 3C(1) of the Slum Act. The petitioner was called upon to file objections to the same.

22.     The petitioner has contended that the SRA also issued a public notice on 30 September, 2020 inter alia recording that the society had made a request application for declaration of the area concerned as a slum rehabilitation area, under Section 3C of the Slum Act. It was informed that the land owners or anybody who claimed to have any right, title or interest shall submit their written objections to the SRA in respect of the proposed declaration of the said land as ‘Slum Rehabilitation Area’ within a period of 30 days from the date of publication of the said notice.

23.     The petitioner responded to the said public notice by his letter dated 21 October, 2020 and recorded its objections. The petitioner raised a categorical objection to any third party being appointed as a developer of the said property under the Slum Rehabilitation Scheme. It was recorded that the petitioner, as owner of the land, had every intent and desire to redevelop the same as a slum rehabilitation scheme and it was the intention of the petitioner to develop the slum land and a part of the larger land of the petitioner, for which the petitioner intended to engage a competent party to undertake the same and to comply with all applicable laws including the provisions of the Slum Act. It was recorded that the petitioner had several rounds of discussions with both the slum dwellers and certain occupants of the larger land and that the petitioner had sought consents of the slum dwellers in respect of redevelopment and rehabilitation. It was also recorded that despite repeated follow-ups and requests made to the slum dwellers for their consents, which they had promised to grant, nothing was heard from them.

24.     The petitioner has stated that active steps were taken to re-develop the slums portion of its land as well as the larger land and accordingly a development proposal was prepared and explained to the slum dwellers and certain occupants of the larger land. In such view of the matter, the petitioner called upon the CEO- SRA not to engage or appoint any third party as developer of the property under the Slum Act or otherwise. The petitioner also stated that as the owner of the land, the petitioner had the first right in law to develop the same. The petitioner thereby communicated the petitioner’s interest, intent and desire to develop the slums.

25.     On 19 November, 2020, the CEO, SRA, issued a notice to all the concerned, to remain present for a hearing in respect of the proposed Section 3C declaration in relation to the land in question.

26.     On 04 December, 2020, the petitioner once again by a letter addressed to the CEO, SRA, recorded that the petitioner was the absolute owner of the slum land which formed a part of the larger land owned by the petitioner. It was re-informed that the petitioner intended to develop the land along with the larger land for which the petitioner had taken material steps. It was also recorded that in fact the structures on the land were not overcrowded and that there was sufficient ventilation, light and sanitation facilities as also the structures were safe and hygienic and for such reason, the petitioner strongly objected to the steps being taken to declare the petitioner’s land as a slum. It was hence requested that the land be deleted from the proposed notification. While so stating, it was reiterated that the petitioner was desirous of redeveloping its land for which the petitioner had taken steps and is intending to take further steps in that regard. It was stated that hence a notification to declare the petitioner’s property as a slum would adversely affect the petitioner’s redevelopment plan. It was also recorded that the petitioner had already initiated discussions with the occupants since 2019 and that the occupants of the larger land had conveyed their willingness for development to be undertaken, keeping in mind their rehabilitation. It was also recorded that a power point presentation was made to the office bearers and representatives / members of the society, and that the petitioner was awaiting for their consent for redevelopment.

27.     On such backdrop, despite the petitioner pointing out not only its intention to redevelop the land but also that the 1600 sq. mtrs. land occupied by the structures ought not to be categorized as a slum rehabilitation area, on 29 December, 2020, the CEO, SRA passed an order rejecting the petitioner’s objections for declaration of the land in question as a slum rehabilitation area under Section 3C(1) of the Slum Act and published a notification under Section 3C of the Slum Act, which was also notified in the Official Gazette on 31 December, 2020. Such order was passed during the Covid-19 pandemic period.

28.     On 05 January, 2021, the Deputy Collector (Mumbai City), SRA, forwarded a copy of the order dated 29 December, 2020 passed by the CEO, SRA to the petitioner.

29.     On 01 February, 2021, the petitioner, being aggrieved by the orders dated 29 December, 2020 passed by the CEO, SRA, declaring the land in question, which was admittedly of the petitioner’s ownership as a slum rehabilitation area, under Section 3C of the Slum Act, filed an appeal before the Apex Grievance Redressal Committee (for short “AGRC”) under the provisions of Section 35 of the Slum Act. The petitioner has contended that the petitioner had attempted to move the appeal on several occasions, however, the same has remained pending before the AGRC.

30.     Although the petitioner’s appeal was pending before the AGRC, on 29 October 2021, the CEO, SRA issued a public notice inviting objections and suggestion as to why the petitioner’s land in question declared as a slum rehabilitation area, be not compulsorily acquired for development of the slum. Such public notice was issued on a proposal submitted by the society as the notice categorically recorded that the office of the CEO, SRA had received a proposal to acquire land, for implementation of Slum Rehabilitation Scheme under Section 14(1) of the Slum Act being the proposal of the society (Shri Kadeshwari Society Limited – (proposed) respondent no.4). The notice recorded that the land owners or anybody who claimed to have any right, title or interest (if any) and who had any objection on the proposed acquisition of the said land, may submit written objection to the SRA within a period of 30 days from the date of publication of such notice.

31.     On 26 November, 2021, the petitioner through his advocate submitted a detailed reply to the SRA objecting to the public notice dated 29 October, 2021. The petitioner informed the SRA that his appeal against the declaration as made by the CEO, SRA under Section 3C of the Slum Act was pending before the AGRC. The petitioner also recorded that the petitioner had entered into a substantive correspondence with the occupants of the hutment structures known as Pawar Chawl, who had formed the said society (Shri Kadeshwari Society Limited), prior to the CEO-SRA declaring the said land occupied by the structures admeasuring 1596.4 sq. meters as a slum rehabilitation area. The petitioner also recorded that the petitioner was in the process of implementing a redevelopment project for the entire scheme of CTS Nos. B-960 and 961 totally admeasuring 10709.1 sq. mtrs. and for which the petitioner had already submitted a redevelopment plan for approval to the Municipal Corporation (MCGM) under File No. P-7344/2021/(960 and other)/H/W Ward/Bandra-B qua the redevelopment for the entire structures, on the land belonging to the petitioner. The relevant documents in that regard were also submitted. The petitioner contended that its redevelopment proposal made to the hutment occupants had described various benefits of the redevelopment to the occupants, which was better than any other offer, as recorded by the petitioner in its letter dated 23 March, 2021 addressed to the slum dweller’s society. In paragraph 8 of the said letter, the petitioner categorically reiterated / recorded that the petitioner being the owner of the land is interested in the redevelopment of the land and accordingly, had initiated steps, for redevelopment of the entire land of its ownership, which included the petitioner's land in question, described in the public notice issued under Section 14(1) of the Slum Act. The petitioner stated that it was in the interest of all stakeholders to have a composite, complete and an effective redevelopment scheme, which was beneficial to all occupants of the land occupied by the hutment dwellers. It was hence requested that the public notice be set aside. The petitioner also stated that no useful purpose would be served, in retaining a small portion declared as slum area, when the owner of the larger area had already initiated steps and had submitted plans for sanction to the competent authority, which when granted would benefit the slum occupants. For such reason, the petitioner recorded its objection to the CEO, SRA to proceed with the acquisition of the petitioner's land under Section 14(1) of the Slum Act. The petitioner also recorded that the petitioner is collecting various other correspondence, documents, submissions which are necessary and important which would throw light on the subject, however, due to paucity of time and in view of the pandemic situation in the country, the petitioner was consuming little longer time in arranging such documents. It was hence requested that the owners be accordingly permitted to provide with such necessary documents prior to taking any decisions on the public notice dated 29 October, 2021. The petitioner demanded a physical hearing to demonstrate its objections prior to the CEO passing any orders.

32.     It is in the above circumstances, the petitioner being aggrieved by the fact that on one hand the AGRC was not proceeding to decide the petitioner’s appeal against declaration of the petitioner’s land as a slum rehabilitation area, and on the other hand, the CEO was in a hurry to proceed to take steps to acquire the petitioner’s land under Section 14(1) of the Slum Act by issuance of notice dated 29 October, 2021, the petitioner filed the present petition on 10 February, 2022 inter alia praying for the following reliefs:-

“(a)    that this Hon’ble Tribunal be pleased to issue a writ of certiorari or any other writ, order or direction in the nature of certiorari calling for the records and proceedings in respect of issuance of public notice dated 29th October 2021 (Exhibit W) issued by CEO, SRA (Respondent No.3 herein) and after going through the legality, validity and propriety thereof be pleased to set aside the same.

(b)     that this Hon’ble Tribunal be pleased to issue a writ of mandamus or any other writ, order or direction in the nature of mandamus directing Respondent No.3 to withdraw/ cancel the Notice dated 29th October 2021 (Exhibit W).

(c)      Pending the hearing and final disposal of the present Petition, this Hon’ble Court be pleased to stay the effect, implementation and operation of the impugned Notice dated 29th October 2021 and direct Respondent Nos. 1 to 3 not to take any further steps pursuant to the notice dated 29th October, 2021.”

33.     During the pendency of this petition, the CEO SRA passed an order dated 29 March, 2022 whereby the objection as raised by the petitioner to the notice under section 14(1) of the Slum Act came to be rejected, inter alia on the ground that in pursuance of Section 13 read with Section 3C(1), the petitioner had not submitted a proposal for development of the slum area within 120 days of the said notification and for such reason, there was no requirement of any permission to be taken of the owners of the land to undertake redevelopment of the land.

34.     In these circumstances, the petitioner moved this Court praying for amendment of the petition to assail the order dated 29 March, 2022 passed by the CEO, SRA rejecting the petitioner’s objection under Section 14(1) of the Slum Act. A co-ordinate Bench of this Court by an order dated 8 April, 2022 granted leave to amend the petition as also for the reasons as recorded in its order, granted ad-interim relief to the petitioner in terms of prayer clause (c). Such order passed by this Court reads thus:

1.       The Petition are concerned with part of a large tract of land at Bandra of about 10,709.1 sq mtrs under CTS No. B960 and B961. A portion of this is directly the subject matter of the Petition, an area of about 1,596 sq mts. The Petition challenges inter alia a notice of 29 th October 2021 calling for objections to the proposed acquisition (and vesting in the government) of this property, which is said to be ‘slum rehabilitation area’. On the subject property there are several buildings and at least one chawl. It is adjacent to the Mount Mary Basilica at Bandra Mumbai. On its own, this puts the land in a slightly different class from other slum-like areas in the city. The Petitioner is the Bishop as the sole trustee and Rector of the Basilica of Our Lady of the Mount Mary, Mount Mary Road, Bandra West, Mumbai 400 050.

2.       We grant leave to amend inter alia to challenge the order of 29 th March 2022 and bring on record subsequent events.

3.       We do not believe that Rule is necessary but we will endeavour to dispose of Petition finally at the stage of admission once all Affidavits in Reply are filed. Amendments are to be carried out by 25 th April 2022 without need of reverification. Copies of the amended Petition will be served on the Respondents.

4.       For the present, we propose to grant an ad-interim reliefs in terms of prayer clause (c) at page 36A which reads thus:

“(c)    Pending the hearing and final disposal of the present Petition, this Hon’ble Court be pleased to stay the effect, implementation and operation of the impugned Notice dated 29th October 2021 and direct Respondent Nos. 1 to 3 not to take any further steps pursuant to the notice dated 29th October 2021.”

5.       Our reasons briefly are these. This land is part of a much larger segment of land that vests in the Bishop. He submitted a proposal for redevelopment of the entire portion. Only a part of this land is the subject matter of a declaration under Section 3C of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971. That Section was added by means of a 1997 amendment. Along with that, Section 3D was added, and this amended several other sections and chapters of the Slum Act including, importantly for our purposes Section 12 and Section 13. This branch of the law was considered in the elaborate decision authored by GS Kulkarni J for the Division Bench of this Court (Kemkar & Kulkarni JJ) in Indian Cork Mills Pvt Ltd v State of Maharashtra & Ors.

6.       Dr Saraf’s submission on behalf of the Petitioner, founded to a considerable extent on the binding decision of Indian Cork Mills, is that before acquiring the property or appointing the developer as part of the slum rehabilitation scheme and project, there is a priority or peremptory right required to be afforded to the owner of the land to present a scheme for redevelopment. To put in the broadest possible terms, the scheme of the amended provisions is to give the private owner an opportunity to take steps to remove the existing slum-like conditions on that land. The purpose of the Slum Rehabilitation Act is not land acquisition or to force a compulsory acquisition per se; its intent is to improve living conditions and, specifically, to do away with slums and slum-like conditions. To this end, therefore, as Indian Cork Mills says, in Dr Saraf’s submission, the private owner is not to be straightaway deprived of his property. He is to be afforded a remedial opportunity, of a chance to ameliorate the conditions on the ground. This is what Dr Saraf’s complains has never been done or has been wrongly refused. He also says that the procedure under Section 13 as amended by Section 3D has not been followed.

7.       We will hear Dr Saraf for the Petitioners, Mr. Khandeparkar for the Society and Mr Deshmukh for the developer at a later stage. The developer in particular argues that his proposal has been ‘accepted’. But that is surely putting the cart before the horse at this stage if the very challenge is to the introduction of any developer in the first place.

8.       The reason we believe interim relief is necessary is that if interim relief is refused, then there is likelihood of an irreversible situation: the Bishop, as the private owner, being deprived of ownership (the question is not of compensation), and a divesting of title from the Petitioner. Reversing that situation might be exceedingly difficult. We do not see how any of the parties are prejudice if the present situation is directed to be continued and maintained in status quo until June 2022 after all have filed their Affidavits in Reply and Rejoinder to the amended Petition.

9.       Consequently, no further steps towards acquisition of the property are to be taken until the next date. This is without prejudice to the rival rights and contentions.

10.     The 6 th Respondent developer’s scheme has purportedly been accepted. That acceptance is not to be acted until the next date.

11.     All Affidavits in Reply to be filed and served on or before 1 st June 2022. 12. List the matter on 16 th June 2022.”

(emphasis supplied)

35.     The aforesaid ad-interim protection granted by the Court has continued to operate till date.

36.     In the amendment to the petition as permitted, the petitioner has prayed for the following additional reliefs:

“bi.    that this Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction calling for the records and proceedings in respect of passing of the Impugned Order dated 29 th March 2022 (Exhibit W2) by CEO SRA and after going through the legality, validity and propriety thereof, the Impugned Order dated 29" March 2022 (Exhibit W2) be quashed and set aside;

b2.     that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondent No. 2 to withdraw / cancel the Impugned Order dated 29 th March 2022 (Exhibit W2);

b3.     that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing Respondent No.1 not to take any steps pursuant to the Impugned Order dated 29 th March 2022 (Exhibit W2) and any report submitted by Respondent Nos. 2 and 3 for acquisition of the subject property.

c1.     pending the hearing and final disposal of the present Petition, this Hon'ble Court be pleased to stay the effect, implementation and operation of the Impugned Order dated 29 th March 2022 (Exhibit W2);

c2.     pending the hearing and final disposal of the present Petition, this Hon'ble Court be pleased to direct Respondent No. 1 not to act upon the Impugned Order dated 29 th March 2022 (Exhibit W2) and any proposals submitted by Respondent Nos. 2 and 3 for acquisition of the subject property.”

Reply affidavit on behalf of Respondent No.5-Developer:-

37.     The first reply affidavit to the petition is filed by respondent no. 5- developer of Shri Allwyn Saldanha, the authorized signatory of the developer opposing the petition inter alia contending the following:-

(a) (i) The challenge as raised by the petitioner in the petition is misconceived and bad in law primarily for the reason that there is no preferential right accrued in favour of the petitioner to undertake the re-development of the land in question, hence, it was appropriate for the CEO, SRA to proceed under section 14(1) of the Slum Act to acquire the part of the land as occupied by the hutment dwellers. It is contended that the case of the petitioner is incorrectly premised on the decision of this Court in Indian Cork Mills Pvt. Ltd. vs. State of Maharashtra 2 . (ii) That the preferential right to undertake a Slum rehabilitation scheme under the modified Section 13(1) appearing in Chapter I-A of the Slum Act, comes into effect only when an area is declared as a “Slum Rehabilitation Area” under section 3C(1) of the Slum Act. (iii) The petitioner, having challenged the notification issued by the CEO, SRA under section 3C(1) before the Apex Grievance Redressal Committee (AGRC), it has no locus to exercise a purported preferential right, which would have accrued by virtue of notification issued under section 3C(1). The petitioner hence is estopped from exercising/ claiming any rights arising from such declaration. (iv) On one hand, the 2 2018 SCC Online Bom 1214 petitioner is challenging the declaration of slum rehabilitation area and on the other hand, is turning around and claiming advantages/rights arising from such declaration and thus, the petitioner is approbating and re-probating at his own convenience which is impermissible in law. The decision of this Court in Indian Cork Mills (supra) hence would not assist the petitioner. (v) The petitioner has expressly waived off its right to undertake slum rehabilitation scheme on the subject property, even assuming that a preferential right had accrued in favour of the petitioner. To support such contention, the developer has referred to a fact that under the 1978 Notification and the 2002 Corrigendum, the subject property was declared as slum. The petitioner as of 2002 was very well entitled to undertake slum redevelopment of the subject property under the applicable provisions of the Slum Act. However, by petitioner's letter dated 13 June, 2013 addressed to the proposed Society of the slum dwellers, informed that the redevelopment of the subject property can be undertaken by any developer of the choice of the Society and for such reason, the petitioner had waived its rights for the redevelopment of the subject property. On such backdrop, it is stated that the Society had passed a unanimous resolution dated 15 August, 2017 appointing respondent no. 5 as a developer as also executed a development agreement dated 28 December, 2017. Also a Power of Attorney dated 28 December, 2017 was executed in favour of the developer, which was pointed out by the Society to the petitioner.

(b)     In the reply affidavit, it is next contended by respondent no.5 that on 20 January, 2018, the developer in fact made an offer to the petitioner to purchase the subject land on “as is where basis” and in this regard, discussions were held between the parties as also the Society had requested NOC from the petitioner for redevelopment of the subject property. There were repeated attempts made by the Society requesting the petitioner that redevelopment was necessary, however, the petitioner at no point of time objected to the appointment of respondent as a developer. It is contended that for the first time on 21 October, 2020, the petitioner belatedly and as a mere afterthought, raised an objection to the SRA not to appoint any third party developer and expressed its willingness to develop the subject land. The petitioner thus did not have objection for the Society to appoint the developer and hence the petitioner was estopped from acting contrary to the said representation as also the petitioner had waived off and given a go-bye to its preferential right to develop the said land.

(c)      The petitioner’s alleged preferential right already stood exhausted for the reason that the land owners were required to come forward, with a scheme for redevelopment of the declared slum rehabilitation area within a reasonable time, not exceeding 120 days from the date of declaration of slum rehabilitation area as provided under section 3C(1) of the Slum Act and such time limit was mandatory in nature.

(d)     The subject property was declared as slum rehabilitation area on 29 December, 2020. The maximum period of 120 days expired on 28 April, 2021, the petitioner, however, belatedly i.e. on 4 May, 2021, after such period of 120 days expired, submitted its proposal for redevelopment. The petitioner’s proposal for such reason was invalid and in contravention to the provisions of Section 13 (as modified by Section 3D of the Slum Act) which ought not to have been considered at all.

(e)      In any event, on 22 December, 2021, the petitioner’s proposal for redevelopment was rejected by SRA on the ground that the same has not been filed in accordance with the procedure for submission of a valid slum redevelopment proposal, and also on the ground that the requirement of Circular No. 144 issued by CEO, SRA were not complied. It is contended that the petitioner neither challenged the 2021 rejection by the SRA, nor any attempt was made to initiate further proposal for redevelopment. Respondent no.5 referred to the SRA Circular No. 144 dated 31 August, 2013 which inter alia provides that the owner/applicant is obliged to submit a complete proposal for redevelopment along with Annexures I to V to the Engineering Department of the SRA. Also a reference is made to Circular No. 144-B dated 28 December, 2015 providing that the owner/developer is required to submit the slum rehabilitation boundary in the Geographic Information System format. It is contended that as the petitioner failed to submit a complete proposal along with annexures as required under law, there was no genuine and sincere desire on the part of the petitioner to implement the Slum Rehabilitation Scheme, hence, merely addressing of letters to undertake redevelopment was not valid. It is stated that the petitioner had purportedly already exercised its preferential right after the expiry of 120 days time period, which was rightly rejected by the SRA. The Slum Act does not make any further provision of a preferential right. It is contended that the petitioner had suppressed such material regarding petitioner’s proposal being rejected by SRA.

(f)      The petitioner has no preferential right with respect to joint and composite development of the subject land along with the petitioner’s adjacent land, which was beyond the purview of the Slum Act. The sole intention of the petitioner was to exploit the FSI under a composite development as proposed.

(g)     The slum rehabilitation scheme has a distinct object under Chapter I-A of the slum Act, and that the provisions of such Chapter which includes Section 3C and Section 13 (as modified by Section 3D) by virtue of which the petitioner is seeking to assert alleged preferential right, are not attracted in regard to the acquisition proceedings under section 14 of the Slum Act. The petitioner’s assertion of preferential right is to thwart the acquisition proceedings under section 14 of the Slum Act. There was a lack of a bonafide desire on the part of the petitioner to implement the slum rehabilitation scheme and it is for such reason, the slum dwellers were constrained to take steps to redevelop the subject property. Hence respondent no. 4-Society on 23 April, 2021 submitted a valid proposal to SRA for redevelopment through the developer of the subject land along with adjacent land bearing CTS No. B-967. On 28 March, 2022 the SRA gave in-principal approval for redevelopment of the slum area of 380.2 sq. mtrs. on land bearing CTS No. B-967 (which is not the petitioner’s land), as the proposal for redevelopment of petitioner’s land was to be considered after completion of the acquisition proceedings. The petitioner has belatedly approached this Court to stall the redevelopment of the project. The petitioner at all material times was aware that attempts were being made by the Society through developer (respondent no. 5) to undertake redevelopment and despite which this petition came to be filed. For such reason, there is no illegality in the issuance of the impugned notification under section 3C(1) and Section 14(1) of the Slum Act.

(h)     The petitioner, having challenged the notification issued by the CEO, SRA under section 3C(1) before the Apex Grievance Redressal Committee (AGRC), has no locus to exercise any preferential right which would have accrued by virtue of notification issued under section 3C(1). The petitioner in such circumstances is estopped from exercising/ claiming any rights arising from such declaration. The petitioner on one hand is challenging the declaration of slum rehabilitation area and on the other hand, intends to turn around and claim advantages/rights arising from such declaration. Thus, the petitioner approbating and reprobating at its convenience is impermissible in law. Hence, the decision of this Court in Indian Cork Mills (supra) would not assist the petitioner.

(i)      It is next contended that the petitioner has expressly waived off its rights to undertake slum rehabilitation scheme on the subject property, even assuming that a preferential right had accrued in favour of the petitioner. To support such contention, the developer has referred to the facts that under the 1978 Notification and 2002 Corrigendum to it, the subject property was declared as slum. It is contended that the petitioner as of 2002 was very well entitled to undertake slum redevelopment of the subject property under the applicable provisions of the Slum Act. However, on 13 June, 2013, the petitioner in its letter addressed to the proposed Society of the slum dwellers, informed that the redevelopment of the subject property can be undertaken by any developer of the choice of the Society and for such reason, the petitioner has waived off his right for the redevelopment of the subject property. It is on such backdrop, the Society passed a unanimous resolution dated 15 August, 2017 appointing respondent no. 5 as a developer and executed Development Agreement dated 28 December, 2017, as also executed a Power of Attorney dated 28 December, 2017 in favour of the developer.

(j)      It is next contended that on 20 January, 2018, the developer made an offer to the petitioner to purchase the subject land on as is where is basis, as also discussions were held between the parties. The Society had also requested NOC from the petitioner for redevelopment of the subject property. It is stated that there were repeated attempts made by the Society, requesting the petitioner that redevelopment was necessary, however, the petitioner at no point of time had objected to the appointment of respondent as a developer.

(k)     For the first time on 21 October, 2020, the petitioner belatedly and as an afterthought raised an objection with the SRA not to appoint any third party developer and expressed its willingness to develop the subject land. The petitioner’s alleged preferential right stood exhausted for the reason that the petitioner as land owner was required to come forward with a scheme for redevelopment of the declared slum rehabilitation area within a reasonable time not exceeding 120 days from the date of declaration of slum rehabilitation area, under section 3C(1) of the Slum Act on 29 December, 2020. Such period although expired on 28 April, 2021, the petitioner, however, belatedly submitted its proposal for redevelopment on 4 May, 2021, after the expiry of the period of 120 days, for such reason, the petitioner’s proposal was invalid and in contravention to the provisions of Section 13 (as modified by Section 3D of the Slum Act).

(l)      In any event, on 22 December, 2021, the petitioner’s proposal for redevelopment was rejected by the SRA on the ground that the same has not been filed in accordance with the procedure, as also for the reason that the requirement of Circular No.144 dated 31 August, 2013 and Circular No. 144-B dated 28 December, 2015 issued by CEO SRA were not complied by the petitioner. The petitioner had neither challenged the 2021 SRA rejection nor any attempt was made to initiate further proposal for redevelopment. Thus, as the petitioner failed to submit a complete proposal along with annexures as required under law, there was a genuine and sincere desire on the part of the petitioner to implement the Slum Rehabilitation Scheme was absent.

(m)    The petitioner has no preferential right with respect to joint and composite development of the subject land along with adjacent land. Such joint and composite redevelopment scheme is beyond the purview of the Slum Act. The sole intention of the petitioner was to exploit the FSI, under the composite development as being proposed.

(n)     The slum rehabilitation scheme has a totally different object under Chapter I-A and that the provisions of such Chapter which includes Section 3C and Section 13 [as modified by Section 3D] by virtue of which the petitioner is seeking to assert alleged preferential right, which itself is not attracted, with respect to the acquisition proceedings under section 14 of the Slum Act.

(o)     There is no illegality in the issuance of the impugned notification under section 3C(1) and Section 14(1) of the Slum Act and it is for such reason, it is submitted that the petition be dismissed.

38.     Reply Affidavit on behalf of respondent No.4 – proposed society of the slum dwellers:-

(a)     Mr. Narendra Harishchandra Pawar, Chief Promoter of the proposed society – respondent No.4 has filed a reply affidavit opposing the petition. At the outset, it needs to be noted that the affidavit in its material contents is not different from what has been set out by the developer in his affidavit. This affidavit is filed after three days of the developer’s affidavit. The affidavit states that a notice for acquisition under Section 14 of the Slum Act was published on 29 October 2021 in the local newspaper on 30 October 2021 in pursuance of the proposal of the proposed society for classification of the petitioner’s land under Section 14(1) of the Slum Act. The objections were required to be submitted within thirty days. Such objections were received from the petitioner and other parties, in pursuance of which hearing was fixed by the CEO SRA on 14 December 2021 at 3 p.m., when the petitioner’s Advocates M/s. M. T. Misqita and Co. were heard. It is stated that after hearing the parties as also permitting them to file their written submissions, the CEO, SRA passed the impugned order dated 29 March 2022 under Section 14(1) of the Slum Act. It is contended that the petitioner ought not to have rushed to the Court before the CEO SRA could pass an order on the objections received by him on the Section 14(1) proceedings, and further ought not to have obtained the orders dated 8 April 2022 from this Court. It is contended that the petitioner has, in fact, suppressed the fact that the petitioner had submitted a composite proposal for CTS No. B-960 totally admeasuring 9371.30 sq. meters which was rejected by the Executive Engineer by its letter dated 22 December 2021. It is next contended that the petitioner had thus exercised its alleged preferential rights, even after the maximum period of 120 days, which otherwise could not have been exercised and the same was not legal. It is hence stated that the petitioner having already exercised its preferential right, the present petition asserting such preferential rights is not maintainable. In fact, under the letter dated 13 June 2013 issued by the petitioner to the treasurer of the proposed society, the petitioner had renounced all its rights to develop the land declared as slum rehabilitation area, by calling upon the members and instructing the members of the proposed society to agree upon to develop the slum land under Regulation 33(10) of the DC Regulations.

(b)     It is contended that in fact several steps were taken by the proposed society to the effect that the 35 members of the proposed society had signed individual irrevocable consents for redevelopment under Regulation 33(10) in favour of the developer – respondent No.5, whereunder respondent No.5 had offered an area of 300 sq. ft. carpet area to the members. It is next contended that the proposed society had unanimously passed a General Body Resolution dated 15 August 2017 for redevelopment of the slum under Regulation 33(10) of the DC Regulations, 1991 and had appointed respondent No.5 - developer. It is contended that the members of the respondent society had also entered into a development agreement dated 28 December 2017 with the developer as also a power of attorney was granted in favour of the developer. It is next contended that also on 4 January 2018 the society had addressed a letter to the petitioner informing of the appointment of respondent No.5 as the developer and requested the petitioner to grant NOC for carrying out redevelopment. It is contended that as the petitioner was not inclined to undertake redevelopment and improve the living conditions of the members of the society, the society had lost trust and faith in the petitioner and for such reason, had appointed respondent No.5 developer to undertake the re-development of the subject property. In such regard, the proposed society had addressed several letters to the petitioner between the period from March 2012 to February 2019 inter alia requesting the petitioner to grant NOC for the purpose of redevelopment, as also respondent No.5 – developer had written letters to the petitioner for issuing of NOC for undertaking redevelopment of the slums. The petitioner although being aware of appointment of developer, did not take any steps towards redevelopment.

(c)      It is next contended that the petitioner had also not challenged the declaration of the land in question as slum area, however, it filed an appeal before the AGRC challenging the notification and order dated 29 December 2020 passed by the CEO SRA under Section 3 C(1) of the Slum Act, wherein the subject land was declared as ‘Slum Rehabilitation Area’.

(d)     It is further contended by the society that the petitioner does not have any preferential right to undertake redevelopment and to have a composite redevelopment of not only the subject land which was notified as a ‘slum rehabilitation area’ alongwith the adjoining land belonging to the petitioner. This also for the reason that the persons situated on the other land had not consented namely members of the Mount Nirmala CHS, hence, it was not in the interest of the slum dwellers to have a composite redevelopment as proposed by the petitioner.

(e)      It is next contended that as the petitioner had failed to submit its proposal for redevelopment under the Regulation 33(10) of the DC Regulations to the SRA and as the proposed society had submitted its proposal on 23 April 2021. On such failure of the petitioner to submit a proposal, the CEO-SRA considering the proposal as received from the proposed society, has proceeded to take further action by publishing a notice under Section 14(1) of the Slum Act dated 29 October 2021 inviting objections. It is next contended that in compliance with the requirements of the Circular No.144 of the SRA, the proposed society has received NOC from the Town Planning Department as also NOC has been issued from the Finance Controller dated 2 July 2021. It is next contended that as a proper proposal was not submitted by the petitioner, the petitioner cannot have any grievance about the society’s proposal being taken forward through its developer – respondent No.5.

(f)      It is next submitted that Section 14 proceedings are independent in nature and are not dependent upon Section 13 of the Slum Act (as modified) which accords preferential right to the owner. The petitioner has lost all protection under such provision of Slum Act, as the petitioner had failed to submit its proposal under Regulation 33(10) of the DCR within the maximum period of 120 days which in any event, was rejected by the SRA. There is no requirement in law that the society should wait for the owner to make a proper proposal and once the proposal of the petitioner itself was rejected, there was no impediment whatsoever for the proposal of the proposed society to be taken forward and considered by the CEO SRA for the purpose of acquisition of the land. It is for such reason, it is submitted that the petition deserves to be dismissed.

39.     Reply Affidavit on behalf of Respondent Nos.2 and 3 -SRA

(a)     Mr. Umesh Patil, Tahsildar-II, Special Cell, SRA has filed an affidavit opposing the petition. It is required to be noted that this affidavit is filed after the developer and the society had filed their respective affidavits and this has some significance, when we refer to the contents of the affidavit. We note that contentions as raised by the official respondents are in fact identical to the contentions of the developer as also the proposed society of slum dwellers.

(b)     We note the SRA’s case in the reply affidavit. At the outset, the SRA has contended that the petitioner has not disclosed that there was hearing before the CEO - SRA on two dates i.e. on 14 December, 2021 and 31 December, 2021 and that the matter was closed for orders and the decision of the CEO – SRA on the Section 14 notice, hence, it was not proper for the petitioner to obtain ad-interim order dated 8 April 2022.

(c)      It is next contended that the SRA is the Planning Authority for implementation of the Slum Rehabilitation Projects established under the provisions of Chapter I-A of the Slum Act with an object to provide permanent alternate accommodation to the eligible slum dwellers free of cost and without consideration as per the Slum Rehabilitation Scheme. It is stated that the Slum Rehabilitation Scheme is declared for a total area of 1976.40 sq. meters and falls on two adjoining plots CTS No.B/967 and B/960 (part), out of which (from CTS No. B/967) is owned by Mumbai Municipal Corporation and B/960 (part) is the portion of the private property of the petitioner which is under process of acquisition, which is admeasuring 1596.40 sq. meters. It is stated that the Deputy Collector (Encroachment & Removal) and the Competent Authority by notification dated 30 November, 1978 and on 12 June, 2002 had declared the subject land as “slum” under Section 4 (1) of the Slum Act admeasuring 1339.0 sq. meters and with further encroachments over the years, presently an area declared as slum admeasures 1596.40 sq. meters, as the residents lacked basic amenities.

(d)     It is stated that Section 3C and Section 13 of the Slum Act were amended with effect from 26 April 2018. By such amendment, even though the area has been declared as Slum Rehabilitation Area previously under Section 4(1) of the Slum Act, it had become imperative to once again conduct the entire process to declare the area as a “Slum Rehabilitation Area” under Section 3 C (1) of the Slum Act for a Slums Rehabilitation Scheme to be implemented.

(d)     It is contended that as per the amended provisions of the Slum Act and after hearing all the parties including the petitioner and after following due process of law, the land in question was declared as a slum rehabilitation area under Section 3C (1) of the Slum Act, by an order dated 29 December 2020. It is stated that the said order dated 29 December 2020 declaring the land as a slum rehabilitation area under Section 3C (1) of the Slum Act, was challenged by the petitioner before the Apex Grievance Redressal Committee. It is stated that on one hand the petitioner has challenged the said notification and the order dated 29 December 2020 before the AGRC and on the other hand, the petitioner is seeking to exercise its alleged preferential rights to develop the subject land. It is next contended that the AGRC by an order dated 7 January 2022 rejected the claim of urgency of hearing the petitioner’s appeal.

(e)      It is stated that as per Section 13 read with Section 3 C (1) of the Slum Act, the petitioner had not submitted a proposal for redevelopment to the CEO, SRA, within a period of 120 days from the order dated 29 December 2020 and / or the gazette notification dated 31 December 2020 issued under Section 3 C (1) of the Slum Act. It is stated that the petitioner had failed to provide basic amenities to the slum dwellers residing on the subject land and therefore the slums dwellers has formed the proposed society namely respondent No.4 / Society and had submitted an application under Section 14 (1) on 9 September 2021.

(f)      It is stated that thereafter a public notice dated 29 October 2021 was issued in respect of proposal received from the proposed society by which the objections were called from the land owner or anyone who would claim right, title or interest (if any in respect of the proposed acquisition of the said land). It is stated that also notices to hear the petitioner was issued on 6 December 2021 and 17 December 2021. The CEO – SRA heard all the parties including petitioner and its Advocate on 14 December 2021 and 31 December 2021 and the proceedings under Section 14(1) were closed for orders. Thereafter, on 29 March 2022, the impugned order was passed by the CEO – SRA rejecting the objections as urged on behalf of the petitioner.

(g)     In regard to the petitioner’s contention that as per law, the owner of the land has to be given first preference to execute the slum rehabilitation scheme, it is stated that in fact, first preference was given to the petitioner, however the petitioner had failed to exercise its rights of first preference, as the proposal received from the petitioner through its architect Mr. Amit Sapre was dated 4 May 2021 for redevelopment of the land not only of the petitioner ownership (CTS No. B-960) but also in respect of the other land namely B-961. It is stated that such proposal was not submitted as per the requirement of the standard operating procedure under Regulation 33 (10) of the DCPR 2034. It is stated that the petitioner had not made any attempt to initiate any further proposal. It is next stated that from the available records, it was noted that the SRA was in receipt of another proposal for implementation of slum rehabilitation scheme from the developers as appointed by the proposed society and the same is in the process of consideration.

(h)     It is stated that the Executive Engineer / SRA by its letter dated 22 December 2021 informed these facts to the petitioner, however, the petitioner had not submitted its scheme / proposal as per the standard operating procedure. It is hence stated that the SRA has followed due process of law as contemplated under Section 14 (1) of the Slum Act, and there are no irregularities as alleged by the petitioner. It is next stated that on 28 March 2022, the SRA had accepted the society’s proposal submitted through its developer for rehabilitation, on the composite plot belonging not only to the petitioner, but also part of the adjoining plot belonging to the municipal corporation (plot No. B-967) after obtaining NOC from the concerned department as per circular No.144 of the SRA. It is stated that however the scheme is presently restricted to an area adm. 380.2 sq. meters on CTS No. B967 belonging to the Mumbai Municipal Corporation and the remaining area of 1596.40 belonging to the petitioner (CTS No. B-960) is not accepted and will be considered only after land acquisition procedure is duly completed and the same is informed to M/s. Aspire Architect and Consultants, as appointed by the society’s developers.

(i)      It is next stated that the Constitutional validity of Section 14 of the Act has already been upheld and in different proceedings, the Court had declined to interfere in the acquisition of land under the said provision. It is next stated that even after the letters of Executive Engineer dated 22 December 2021 till 28 March 2022, the petitioner had not submitted any proposal as per standard operating procedure (SOP) as informed to the petitioner. The petitioner having failed to submit its proposal as per SOP cannot make any grievance that the petitioner has the first right to develop its land. It is stated that hence due to non participation of the petitioner / owner of the said land to develop the Slum land, a proposal was placed for acquisition of the said land in the interest of slum dwellers, and only after due process of law being followed and an opportunity of being heard to the petitioner and other concerned parties being granted, a decision is taken to acquire the petitioner’s land by the impugned order dated 29 March 2022 for further procedure to be followed in that regard. It is hence, prayed that the petition be dismissed.

40.     Rejoinder of the Petitioner :-

(a)     There are rejoinder affidavits filed by the petitioner to the affidavits as filed on behalf of the SRA, as also proposed society of slum dwellers and the developers. These are affidavits of Mr. Bishop John Rodrigues, the sole trustee of the petitioner, inter alia denying the contents of the affidavits filed by the respondents discussed above. The affidavits reiterate that the petitioner was always ready and willing to redevelop the said land and rehabilitate the slum dwellers on the subject land which he petitioner intended to redevelop as composite redevelopment. It is contended that the strong willingness of the petitioner to undertake redevelopment was reflected from its several letters addressed to the CEO-SRA, however, such rights of the petitioner to redevelop the land were not being recognized by the CEO-SRA and an action of acquisition of petitioner’s land was being foisted on the petitioner. It is contended that such willingness of the petitioner to undertake redevelopment was clearly demonstrated from the letter dated 21 August 2019, 6 October 2019, the redevelopment feasibility report dated 10 December 2019, letter dated 7 February 2020, letter dated 1 October 2020, letter dated 4 December 2020, all of which indicated the concrete proposals of the petitioner about the composite redevelopment. It is stated that the said letters were addressed even before the proceedings for declaration under Section 3C of the Slum Act were initiated. It is next contended that the provisions of the Slum Act, 1971 as amended in the year 1998 were interpreted by this Court in Indian Cork Mills Pvt. Ltd. Vs. State of Maharashtra (supra) wherein this Court has held that under the amended provisions of the Slum Act, the owner of the property has a preferential right to develop the property and without offering an opportunity to the owner to exercise his preferential right, acquisition of his land under Section 14 cannot be initiated.

(b)     It is contended that the fundamental rights of the petitioner under Article 25, 29 and 300A of the Constitution would stand breached, if the contentions as urged on behalf of the proposed society, SRA and developer are accepted. It is stated that these are fundamental and religious rights to own the property which cannot be defeated by such acquisition. It is contended that in fact the proposal for composite redevelopment was submitted on 4 May 2021 to the Executive Engineer, H West Ward, SRA, which includes the rehabilitation of the slum dwellers on the subject property. This proposal was returned by a communication dated 22 December 2021 informing the petitioner that it is not submitted to the Head Clerk of SRA as per circular No.144 (page 213 of Respondent No.5’s reply).

(c)      It is stated that the petitioner had submitted a proposal with the MCGM on 8 July 2021 on the MCGM’s Online Portal in respect of the redevelopment however, the same was logged out to comply with some requisitions, and accordingly, it was resubmitted on 28 October 2021. It is submitted that the submission of proposal by the petitioner to the MCGM and SRA was because of lack of clarity as to which shall be the planning authority in a case of a composite redevelopment of a slum area and the adjoining land of the petitioner, which was not a slum rehabilitation area. It is hence submitted that the fact remains that the petitioner had demonstrated a strong willingness to redevelop the subject land by taking concrete steps for redevelopment of the same despite which, without any notice by the SRA to call upon the petitioner to submit a slum rehabilitation scheme, proceedings were sought to be initiated to acquire the petitioner’s valuable land.

(d)     It is next contended that Section 13(1) of the Slum Act as amended in 2018 merely contemplates a period of 120 days being provided to the owner of the property to take steps for redevelopment, after declaration of slum rehabilitation area under Section 3C. Thus, when after the declaration under Section 3C of the Slum Act, the SRA having never called upon the petitioner to submit a scheme, for such reason, the acquisition proceedings being initiated are rendered directly in the teeth of the decision of this Court in the case of Indian Cork Mills Pvt. Ltd. (supra). It is next contended that in the minutes of the meeting held by the SRA on 13 December 2014, it was provided that in respect of the land belonging to the trust, a notice of three months to be given to such owners to submit a proposal for redevelopment and on failure to submit a proposal, the acquisition was to be initiated. It is hence, contended that initiation of acquisition proceedings by the SRA was without any notice to the petitioner in its capacity as the land owner, and as the petitioner had taken steps for redevelopment of the slum land, such proceedings have stood vitiated and are liable to be set aside. It is next contended that the petitioner was in the process of floating a tender inviting offers from reputed developers so as to engage them as construction contractors for implementing the petitioner’s composite redevelopment proposal. In this regard, various steps were being taken by the Architects of the petitioner in submission of the proposal to the different authorities, the details of which are set out in the rejoinder affidavit. Thus, the case of the respondents have been denied by the petitioner in the rejoinder affidavits on all the counts, interalia submitting that the petition deserves to be allowed.

Submissions on behalf of the Petitioner:-

41.     Dr. Sathe, learned Senior Advocate appearing for the petitioner has made extensive submissions, which we note hereunder:-

(I)      The action taken by the SRA at the behest of the proposed society as also the developer to acquire the petitioner’s land, is wholly arbitrary and manifestly unreasonable, as the petitioner’s several letters and representations stating that the petitioner intended to develop the subject land, have been totally ignored, in not only issuing the impugned notice dated 29 October 2021 but also in passing the impugned order dated 29 March 2022. It is submitted that these letters of the petitioner demonstrated the petitioner’s strong readiness and willingness to redevelop its own property, which included the subject land. Hence, it is not a case that the petitioner in any manner had avoided to undertake the redevelopment of the slums, despite which the CEO SRA had thought it appropriate to proceed to initiate land acquisition action by issuing a notice under Section 14(1) of the Slum Act and by the impugned order dated 29 March 2022 rejected the petitioner’s objection. It is submitted that on a perusal of the impugned order dated 29 March 2022 it is clear that the only ground on which the petitioner’s objection has been rejected, is to the effect that the proposal as submitted by the petitioner to undertake the redevelopment dated 4 May 2021 was beyond the prescribed period of 120 days as Section 13(1) of the Slum Act, falling under Chapter I-A would provide, which itself is an ex facie untenable reasoning, inasmuch as the proposal dated 4 May 2021 as submitted by the petitioner was within the prescribed limitation. It is submitted that providing for such limitation in any case was not tenable in view of the pandemic and the orders passed by the Supreme Court extending the limitation under the different statutes. It is submitted that such action on the part of the SRA was also oblivious to the several representations which were made by the petitioner demonstrating its willingness and readiness to rehabilitate the slum dwellers right from 21 August 2019 as set out in the petition and also combinedly set out in paragraph 3.6 of the rejoinder affidavit (page 444). It is next submitted that the petitioner being the owner of the land has preferential rights to undertake redevelopment of the land which is the principle of law held by the Division Bench of this Court in the Indian Cork Mills Pvt. Ltd. (supra) that such right is not a hollow right. It is submitted that in the facts of the case, such right as recognized by this Court cannot be rendered nugatory, when there was a clear intention of the petitioner to undertake redevelopment of the slum situated on the petitioner’s land as placed on record of the SRA. It is submitted that there is not a whisper of discussion on each of such letters / representations which abundantly echoed the petitioner’s desire to not only redevelop the slum area but also the other part of the petitioner’s land adjoining the slum area. It is submitted that there is no bar whatsoever to a composite redevelopment so as to include redevelopment of the area occupied by slum on the land belonging to the petitioner and the nonslum land.

(II)     Any steps to initiate acquisition of the property declared as slum is for the reason that the owner of the property is not ready and willing to develop the property on its own, which is not the case here. The petitioner had in fact consented for redevelopment of the slum for which the petitioner had held meetings with the slum dwellers, also plans were prepared by its architect, offering benefits to the slum dwellers. A redevelopment plan was provided to the slum dwellers and was submitted to the SRA. Hence, the acquisition proceedings could not have been initiated under the Slum Act. For these reasons, the notice dated 29 October 2021 and the consequential order passed thereto on 29 March 2022 are per se bad and illegal being violative of the petitioner’s rights under Article 300A read with Article 25, 26 and 29 of the Constitution.

(III)    It is submitted that the CEO SRA has in fact mechanically issued the impugned notice dated 29 October 2021 making an acquisition proposal of the subject land, without making it clear that the law mandated that an offer be made to the petitioner to undertake redevelopment, when the SRA was clearly aware that the petitioner was the owner of the land and in law had a preferential right to undertake the redevelopment.

(IV)   It is submitted that the CEO SRA issued a notice for acquisition of the subject land under Section 3C of the Slum Act to which detailed submissions were made on behalf of the petitioner, however despite being aware of the laws, the CEO SRA passed an order dated 29 December 2020 deciding to go ahead by issuing a declaration under Section 3C of the Slum Act declaring the land as slum rehabilitation area. Against such non speaking order, the petitioner’s appeal is pending. It is submitted that during the pendency of such appeal, the CEO SRA ought not to have proceeded to resort to an acquisition under Section 14 of the Slum Act and create further uncertainty. It is submitted that the CEO SRA has not obtained permission of the Charity Commissioner under the Maharashtra Public Trust Act, 1950, which is mandatory. For such reason also the impugned action of the CEO SRA is required to be quashed and set aside.

(V)    The petitioner in its capacity as the owner of the property has never received any notice from the CEO SRA calling upon the petitioner for its readiness and willingness to develop such property. In fact, the petitioner on its own had included the 35 structures of the owners on the subject property in its redevelopment proposal. The CEO SRA oblivious to such position being taken by the petitioner, has proceeded to initiate the procedure under Section 14(1) of the Slum Act to compulsorily acquire the land of the petitioner without any warrant in law. Under the provisions of the Slum Act, the slum dwellers cannot have higher rights than the petitioner’s right and oblivious to the rights guaranteed under Articles 25, 26, 29 and 30 of the Constitution. It is submitted that the basic intention of the slum legislation is to ameliorate the slum dwellers and make a provision for better housing and facilities. Hence once the petitioner itself was making such provision, the slum dwellers in their capacity as encroachers on the petitioner’s land, cannot have any higher rights once the requirement in law to provide better facilities to them is being made available and intended to be achieved by the petitioner. For such reason, the impugned orders passed by the CEO SRA are totally mechanical and without application of mind to the materials on record, which do not in any manner bring about a situation that the land belonging to the petitioner is required to be acquired and that too contrary to the principles of law in the decision of this Court in case of Indian Cork Mills.

(VI)   Insofar as the impugned order dated 29 March 2022 rejecting the petitioner’s objection to the notice issued under Section 14(1) of the Slum Act is concerned, it is submitted that the impugned order does not set out any reason whatsoever justifying the draconian action of compulsory acquisition of the petitioner’s land. It is submitted that the only reason which is put forth by the SRA to do so, is to the effect that the petitioner did not submit a proposal to redevelop the land within the prescribed period of 120 days of the issuance of the Section 3C whereby the petitioner’s land being declared as slum rehabilitation area. It is submitted that such reason is factually incorrect and without application of mind to several facts, and most significantly for the reason that the petitioner had entered into a substantive correspondence, informing the authorities of its intention to redevelop the land much prior to issuance of a Section 3C notification declaring the petitioner’s land as a slum rehabilitation area, on 31 December 2020. Even thereafter, on 4 May 2021 a proposal was submitted to the SRA informing the SRA, that the petitioner was ready and willing to undertake the redevelopment of the slums in question. As no reason whatsoever in respect of such materials is provided in the impugned order rejecting the petitioner's objections against acquisition, such order is contrary to the principles of law as laid down by the Supreme Court in S.N. Mukherjee Vs. Union Of India3 , Assistant Commissioner, Commercial Tax Department Vs. M/s. Shukla & Brothers to submit that as none of the objections of the petitioner although recorded, they are neither discussed, deliberated nor any reasons in that regard are set out in the impugned order, including by turning a blind eye to the legal position as set up by the petitioner before the CEO SRA.

42.     Even otherwise the impugned order dated 29 March 2022 is wholly a mechanical exercise of power. The CEO SRA in passing the order dated 3 1990(4) SCC 594 4 2010(4) SCC 785 29 March 2022 has patently overlooked that there is no bar whatsoever to a composite redevelopment to be undertaken by the owner of the land and such proposal for composite redevelopment was already placed for consideration by the CEO SRA as also to the Municipal Corporation of Greater Mumbai by the petitioner.

43.     It is thus submitted that looked from any angle, the petition deserves to be allowed.

Submission on behalf of the SRA – Respondent No.2 and 3:-

44.     Ms. Kantharia, learned Government Pleader has made submissions on behalf of the Slum Rehabilitation Authority – respondent Nos.2 and 3. Ms. Kantharia has primarily relied on the reply affidavit of Mr. Umesh Patil in making her submissions. She has, at the outset, argued that the petitioner has suppressed material facts namely that the notices were issued to the petitioner to appear for hearing before the Chief Executive Officer on the objection as raised by the petitioner to the notification under Section 14(1) and the order was yet to be passed, before which the petitioner had approached this Court. Thus, once hearing was offered to the petitioner, the petitioner could not have made a grievance that there is any breach of the principles of natural justice. It is submitted that the proposal of the petitioner dated 4 May 2021 was not a proposal in accordance with law, to undertake redevelopment of the slum rehabilitation scheme and therefore, on such defective proposal the petitioner’s contention that the petitioner was ready and willing to undertake the rehabilitation of the slum dwellers and/or redeveloping the slum could not have been accepted. Ms. Kantharia, however, has fairly accepted that the only reason as set out in the impugned order is on the ground that the petitioner’s proposal for redevelopment was beyond the prescribed limitation of 120 days as provided under Section 13(1) of the Slum Act as amended by the Maharashtra Amendment Act 2018. It is her submission that only when a proposal in a proper form is submitted, it could be recognized that the petitioner was genuinely interested in undertaking the redevelopment. It is submitted that there is another aspect namely that after the order dated 29 March 2022 was passed by the CEO SRA rejecting the petitioner’s objection to the acquisition, the petitioner had nonetheless issued a tender dated 15 October 2022 for the purpose of redevelopment and for such reason also no indulgence ought to be shown to the petitioner.

Submissions on behalf of respondent no. 5 /developer:-

45.     Mr. Tulzapurkar, learned senior counsel for the developer has made the following submissions:

(I) The petitioner has exhausted its rights for a preferential development as may be available to the petitioner under section 13(1) of the Slum Act inasmuch as the petitioner has accepted the rejection of its rights, hence, the challenge to the notice issued by the SRA under Section 14(1) is not an acceptable proposition, as acquisition stands independent of the preferential right as may be conferred under section 13(1) of the Slum Act. It is next submitted that even assuming that the petitioner has a preferential right, such right was waived and/or abandoned by the petitioner. The petitioner in fact permitted the Society to pursue its rights to take steps to achieve the redevelopment of the slums. Hence, the petitioner is now estopped from asserting any rights in regard to the acquisition in question. This more importantly when the petitioner was well aware that in the year 1978, the land in question was declared as a slum, as also thereafter in the year 2002 there was a notification issued declaring the said land to be a slum, which is a larger area than what prevailed in the year 1978. The petitioner was, therefore, well-aware that the slum area is required to be redeveloped. The petitioner, however, did nothing to undertake redevelopment. It is the Society and the developer which had taken number of steps to bring about redevelopment of the slum, including repeated attempts as made by the developer to obtain NOC from the petitioner. It is submitted that private negotiations were also held with the petitioner. It is hence submitted that the petitioner had exhausted its rights to make a proposal on 4 May, 2021 to undertake a redevelopment and which has been rightly rejected by SRA. The petitioner therefore has no right to make any offer, which already stands exhausted in view of rejection of the petitioner’s proposal.

(II) It is next submitted that the proposal of the petitioner dated 4 May, 2022 was also not acceptable in law inasmuch as in law it was not a complete proposal. An incomplete or a deficient proposal is no proposal in the eyes of law is what is being urged. To support such contention, reliance is placed on the decisions of Division Bench of this Court in Awdesh Vasistha Tiwari & Ors. vs. Chief Executive Officer, Slum Rehabilitation Authority & Ors. and Atesham Ahmed Khan & Ors. vs. Lakadawala Developers Pvt. Ltd. & Ors.  It is hence submitted that once the proposal of the petitioner was rejected, there was no scope to make a second proposal.

(III) It is submitted that the petitioner was never interested to undertake development of its land declared as slum, which was merely 1596.40 sq. 5 2006(4) Mh. L.J. 282 6 2011(3) Mh. L.J. 604 mtrs. In fact the intention of the petitioner was to develop the larger land. It is not an acceptable proposition to have a composite development, as the Slum Act would not permit the same. The composite proposal of the petitioner was to develop the slum land (CTS No. B-960) along with its other land B-961. The petitioner cannot be permitted to foist a composite redevelopment on the slum dwellers. The very fact that the petitioner intended to have a composite development itself makes it clear that the petitioner was not interested to undertake the development of slum rehabilitation area, hence, there was nothing wrong in the SRA proceeding to initiate action under section 14(1). This more particularly as the occupants of other part of the land (not declared as slum) were not agreeable for such redevelopment on the ground that their structures/ building were not dilapidated. The correspondence in that regard is clear and hence in the context of the redevelopment under the Slum Act, the petitioner cannot have any objection to the acquisition of its land for redevelopment of the slums in question.

(IV) It is next submitted that even assuming that there is no bar on composite redevelopment, that is, development which would be partly of slum land and party of non-slum land, however, the jurisdiction of the CEO in the context of the proceedings under Section 14 being initiated, is restricted only to the slum land and not in respect of the land which is not slum land. It is from such perspective, the issue is required to be viewed. It is thus submitted that once the land is notified as slum under Section 4(1) of the Slum Act, the consequence it would bring about, is that the owner would be required to develop the land. In the present case, the petitioner/owner has not developed the land despite the land being notified as slum and more particularly, after the petitioner was put to notice in the year 2013, on the petitioner rejecting issuance of NOC to the society. Thus, for a period of 10 years, nothing was done to redevelop the slum and more particularly, when the obligation was under a social welfare legislation like the Slum Act.

(V) It is submitted that once the developer was appointed by the society, it was not in any manner illegal or out of place for the developer to enter into negotiations with the petitioner as also to obtain a conveyance from the petitioner. It is submitted that the developer had accordingly, undertaken negotiations and had tried to obtain a conveyance of the land declared as slum. It is submitted that if such an attempt was to be successful then there was no question of any acquisition as the developer would have stepped into the shoes of the petitioner – owner and could have undertaken development in its own rights as also recognized by the Society by entering into a development agreement. If this was to materialise, then there was no question of any acquisition of the land. In such circumstances, the basic default of the petitioner in not undertaking development of the slum, would become a curable defect, as the development could have been taken over by the developer in his capacity as owner. It is next submitted that this is a case where redevelopment of the hutments which are 35 in number was imperative, as for a long time such persons were not living in clean and healthy surroundings. Once the declaration of the land as a slum was notified, certainly the owner is put to an obligation to undertake redevelopment and if, no redevelopment is undertaken in that event the only course known to law would be to acquire the land. In these circumstances, the Court would never interfere in its discretionary jurisdiction under Article 226 of the Constitution, when the owner has failed to discharge its obligation to redevelop the land.

(VI) It is submitted that on facts, the present proceedings are not covered by the decision of this Court in Indian Cork Mills (supra) for the basic reason that although the petitioner had preferential rights to undertake redevelopment of the slum, however, such rights have stood exhausted, once the petitioner has failed to undertake redevelopment hence, there was no question of any resurrection of such rights. Any preferential rights in the present circumstances cannot be recognized.

(VII) The petitioner has not come with a case that the redevelopment scheme at the behest of the petitioner was ready and ought to have been accepted, thus it can be construed that the petitioner had exhausted its rights of preferential right to undertake redevelopment. This position has been clearly set out in the developer’s affidavit as also it is the correct position that all 35 slum dwellers have consented in favour of the developer to undertake the redevelopment. It is submitted that in the present facts, the judgment of this Court in Indian Cork Mills would be required to be distinguished. In support of such submissions, reliance is placed on the judgment of the Division Bench of this Court in Awdesh Vasistha Tiwari & Ors. Vs. Chief Executive Officer, Slum Rehabilitation Authority & Ors. ; Atesham Ahmed Khan & Ors. Vs. Lakadawala Developers Pvt. Ltd. & Ors.8 Samina w/o. Hafizuddin Siddiqui & Ors. Vs. SK. Saleem S/o. SK. Mehboob & Ors. ; Veekaylal Investment Company Pvt. Ltd. Vs. State of Maharashtra & Ors.; Nusli N. Wadia Vs. The State of Maharashtra & Ors. Deena Pramod Baldota Vs. State of Maharashtra 12 . 7 2006(4) Mh.L.J. 282 8 2011(3) Mh. L.J. 604 9 2011(3) Mh.L.J. 610 10 Writ Petition No.995 of 2018 dt. 22/10/2019 11 Writ Petition 1863/2017, dt. 31/5/2022 12 2022 SCC OnLine Bom 5102

46.     Also reliance is placed on the decision of the Division Bench of this Court in Veekaylal Investment Company Pvt. Ltd. Vs. State of Maharashtra & Ors. on the decision of the Division Bench of this Court in Nusli N. Wadia Vs. The State of Maharashtra & Ors, and Deena Pramod Baldota Vs. State of Maharashtra  and on the other contentions as advanced.

Submissions on behalf of the Society (Respondent No.4):-

47.     Mr. Khandeparkar, learned counsel for respondent no. 4-Society has adopted the submissions as made by Mr. Tulzapurkar. Mr. Khandeparkar would also submit that the right of first refusal which the petitioner is asserting is not available in law to the petitioner for more than one reason. Firstly, for the reason that the petitioner had actively challenged the declaration of the land as slum rehabilitation area under section 3C of the Slum Act by filing an appeal, which is pending. Secondly, the proposal dated 4 May, 2021 of the petitioner for redevelopment stood rejected by SRA’s communication dated 22 December, 2021, which was accepted by the petitioner, as the same was not challenged. In such context, Mr. Khandeparkar has also referred to the provisions of Section 47 of the Slum Act, falling under Chapter VII of the Slum Act. It is his submission that 13 Writ Petition No.995 of 2018 dt. 22/10/2019 14 Writ Petition 1863/2017, dt. 31/5/2022 15 2022 SCC OnLine Bom 5102 the conditional presentation of the scheme by the petitioner was not bonafide. In such context, a reference is also made to Circular No. 144 dated 31 August, 2013 whereby according to the society, it would be mandatory that the consent of the slum dwellers is required to be taken into consideration for undertaking redevelopment of the slums under the provisions of Development Control Regulation 33(10). It is submitted that as the petitioner was quite certain that the slum dwellers would not consent for any redevelopment at the hands of the petitioner, to overcome the applicability of Regulation 33(10), the petitioner intended to take recourse of the provisions of DCR 33(7)(A) which is clearly set out in the petitioner’s own representation as made to the SRA (page 109 ground A). It is submitted that the petitioner on one hand does not intend to abandon his appeal and at the same time, was desirous of undertaking redevelopment under Regulation 33(7), which does not pertain to redevelopment of a slum. This was all to create a deadlock and to frustrate development at the hands of the developer as appointed by the Society. It is thus submitted that the petitioner would automatically fall outside the first preference available in law to undertake redevelopment in view of the provisions of Section 47 of the Slum Act.

48.     It is next submitted that in fact, the starting point for the petitioner to undertake redevelopment of the slum was with effect from the introduction of Regulation 33(10) of the D.C. Regulations for Greater Mumbai, i.e., from 15 October, 1997, at which point of time certainly the portion of the land was declared to be slum, however, nothing was done by the petitioner. It is his submission that Chapter-IA of the Slum Act was introduced on 18 January, 2001 when the proceedings in relation to redevelopment of the slum rehabilitation area came to be introduced and in pursuance thereto, a public notice dated 10 December, 2001 was issued by the Deputy Collector (Encroachment) considering the proposal of the Society to undertake redevelopment of the land and invited objections to any such redevelopment by the persons who had any right, title or interest in the said land. It is thus submitted that when the petitioner was aware about the existence of the slum not only from the year 1978 but also from the time the DCR 33(10) was introduced and no steps were taken, then the petitioner was estopped from raising a plea of convenience that there was intention on the part of the petitioner to undertake redevelopment. Lastly, Mr. Khandeparkar would submit that in any event, it would not be possible for the petitioner to proceed with any proposal of redevelopment of the slum, as the slum dwellers would never consent for a development by the petitioner for the reason that they desire development at the hands of respondent no. 5-developer.

Submissions in rejoinder on behalf of the petitioner:-

49.     Dr. Sathe has made following submission in rejoinder.

50.     It is submitted that the arguments as advanced by Mr. Tulzapurkar are as if the suit for specific performance has been argued, inasmuch as the developer with his limited rights as conferred by the society, has sought to step in, and is claiming rights of conveyance in respect of the petitioner’s land. It is submitted that the developer at such stage the proceedings stand before the SRA, has no locus whatsoever, as there is no scheme for redevelopment as submitted by the developer much less subject matter of consideration by the Chief Executive Officer of SRA. In such context, Dr. Sathe has drawn the Court’s attention to the letter dated 28 March, 2022 of the SRA addressed to the Architect of the Society in the context of redevelopment as submitted by the Society, which clearly indicated that the proposal of the Society was not accepted and what was accepted, was the scheme which was restricted to the adjoining plot of land, namely, CTS No. B/967 and in respect of area admeasuring 380.2 sq. mtrs. which is the land not belonging to the petitioner. Dr. Sathe has laid emphasis that such letter records the remaining area of 1596.40 sq. mtrs. of petitioner’s land bearing CTS No. B/960 being not accepted to be considered on merits only after land acquisition procedure is duly completed. It is thus Dr. Sathe’s contention that it is totally incorrect to contend that any valid proposal for development as submitted on behalf of the Society was on the record of the SRA.

51.     In regard to the contention as urged on behalf of the developer and the Society that the petitioner’s proposal was rejected by SRA by its communication dated 22 December, 2021, it is submitted that the said communication was not on petitioner’s proposal, which was clear from the contents of the said communication. It is submitted that the letter of the SRA, which merely recorded that the proposal of the petitioner dated 4 May, 2021 addressed to the Executive Engineer for proposed redevelopment of the plot bearing CTS No. B/960, could not be considered as a formal application / proposal in a standard form, under Regulation 33(10) of the DCPR-2034, and that as per Circular No. 144 of the SRA, a proposal was not submitted by the petitioner to the Head Clerk Engineering-SRA for the purpose of acceptance of the Slum Rehabilitation Scheme. In such context Dr. Sathe would submit that the said letter also records that in respect of the land in question another proposal for implementation of Slum Rehabilitation Scheme in the name and style of M/s. Saldanha Real Estate Pvt. Ltd. of respondent no. 5 was submitted and the same was being processed, and it is for such reason, the letter clearly recorded that the petitioner’s proposal cannot be accepted as slum rehabilitation scheme “at said stage”. It is thus submitted that by virtue of the reasons submitted in the said letter, it cannot be construed as rejection of the proposal as canvassed by the developer and the society. It is submitted that such submissions on the part of the developer and society are completely extraneous to the issue in hand inasmuch as by the impugned order dated 29 March, 2022 passed under section 14(1) of the Slum Act, the objection of the petitioner has been rejected only on the ground that the proposal of the petitioner to undertake redevelopment, was barred by limitation of 120 days as prescribed under Section 13(1) of the Slum Act read with provisions of Section 3C(1) and for no other reason. For such reason, it is not only irrelevant but also immaterial for the Society as also the developer to canvass submissions on any development proposals being submitted by the Society or the developer.

52.     Dr. Sathe has next submitted that apart from the provisions of Regulation 33(10) or the provisions of Section 13 what has been forgotten on the part of respondents is that Section 12 confers an independent right on the petitioner to undertake redevelopment. In such context, Dr. Sathe has drawn the Court’s attention to Sub-section (10) of Section 12, which according to him, without the provisions of Section 3C being applied, protects the right to redevelop the petitioner’s own land.

53.     Dr. Sathe would submit that the issue at hand is a serious issue inasmuch as the petitioner’s land is sought to be expropriated with the sole intention to have a windfall of profit to the developer in undertaking the development in question and subject the petitioner to acquisition of land by receiving a compensation of merely Rs.4,32,000/-, under section 17 of the Slum Act for such prime land at Bandra. In this regard, a calculation sheet as to the gain which is sought to be made by the developer in the entire bargain is placed on record. In this context, it is submitted that the petitioner’s right as owner of land cannot be destroyed by such means at the behest of the slum dwellers and in reality the developers, looked from any angle.

54.     It is next submitted that the contention as urged on behalf of the developer and the Society that merely because the petitioner has filed an appeal before the AGRC, challenging the declaration of the notification under section 3C of the Slum Act would put the petitioner in a position that the petitioner has given up and/or has no right whatsoever to undertake development of his own land is wholly misconceived. It is his submission that the rights of the petitioner as owners can never stand extinguished in the manner as canvassed on behalf of the developer and Society. It is submitted that the petitioner’s proposal is rejected contrary to the decision of the Division Bench of this Court in Anil Gulabdas Shah vs. State of Maharashtra 16 as also the decision of Division Bench of this Court in Indian Cork Mills Pvt. Ltd. (supra) which recognizes the preferential right of the owner to undertake redevelopment. It is submitted that there is nothing on record to show that SRA had made an offer to the petitioner to undertake redevelopment, which was a pre-requisite and the basic consideration for any decision to be taken under section 14 of the Act. This, apart from the fact that the petitioner had continuously approached the SRA by repeated representations expressing its readiness and willingness to undertake redevelopment of the subject land.

55.     It is submitted that in any event, the communication dated 22 December, 2021 in no manner can amount to rejection of the petitioner’s proposal to redevelop the slums, and even if it is to be considered to a rejection, it is per se bad and illegal, as there was no opportunity or requisition as accorded to the petitioner to comply with the requirements, as any proposal for redevelopment under law would be required to be 16 (2011) 1 Mah. L.J. 797 treated by the Planning Authority. In other words, it is submitted that there cannot be blanket rejection of the proposal for any redevelopment and an opportunity of making compliance of any deficiency ought to have been provided. In this context, reference is made to Section 45 of MRTP which grants such opportunity in respect of any development proposal.

56.     It is next submitted that the reliance on behalf of the developer and Society on the decisions of this Court in Awdesh Vasistha Tiwari & Ors. (supra) and Atesham Ahmed Khan & Ors. (supra) are not applicable in respect of redevelopment to be undertaken by the owners, as no consent of the slum dwellers is required when the redevelopment is being undertaken by the owner. In such context, reference is made to the Circular No. 144 dated 31 August, 2013 issued by the Slum Rehabilitation Authority and the clarification issued to such Circular by the SRA vide Circular dated 9 November, 2015 by which it is clarified that the first preference to undertake redevelopment would be of the owners of the land and the requirement of consent of 70% of the slum dwellers and a resolution in that regard. It is submitted that the petitioner in fact had repeatedly addressed letters to the SRA pointing out the readiness and willingness of the petitioner to undertake redevelopment. In such context, attention is drawn to the letter dated 26 November, 2021 addressed by the petitioner, in which in paragraph 9 the petitioner had categorically stated that the petitioner was offering carpet area of flat of 405 sq.ft. to each of the slum dwellers instead of requisite 300 sq.ft. which would be required to be allowed as per the Circular of the SRA. It is, therefore, submitted that the slum dwellers could not have any grievance whatsoever when a tenement of larger carpet area was being proposed to be constructed, as clearly proposed by the petitioner before the SRA. It is thus submitted that to overlook such position taken by the petitioner, was nothing but to grant a bonanza to the developer of almost free of cost redevelopment at the cost of expropriation of the petitioner’s land. Lastly, it is submitted that the contentions as urged by Mr. Khandeparker that the petitioner would be required to undertake development under DCR 33(10) and for which consent of the slum dwellers would be required is totally untenable as there is no mandate in law that the owners are required to develop only under Regulation 33(10). It is submitted that the primary concern of the slum dwellers can only be that they are provided alternate accommodation which confines to the minimum requirement as prescribed by SRA as a permanent alternate accommodation and it would not matter whether the redevelopment in that regard is undertaken under Regulation 33(10) or otherwise. It can never be construed that the petitioner had exhausted its right to undertake redevelopment and that recognizing the well settled principles in such regard as laid down by the decisions of this Court in Anil Gulabdas Shah (supra) and Indian Cork Mills Pvt. Ltd. (supra), preferential right of the petitioner to undertake redevelopment in the facts of the case were certainly required to be recognized, which is exactly not done, and the proposal of the petitioner to undertake redevelopment ought to have been accepted by the SRA. It is thus submitted that the prayers as made in the petition ought to be granted.

Reasons and Conclusions:-

57.     At the outset, the facts which are not in dispute can be noted. It is not in dispute that the petitioner public trust namely “the Basilica of Our Lady of Mount Mary”, which is managing the “Mount Mary Church, Bandra”, is the owner of the land CTS No. B-960 totally admeasuring about 9371.30 sq. mtrs., out of which a portion of the land admeasuring 1596.40 sq. meters is sought to be acquired by the SRA on the ground that such land has been declared as slum which has only 35 slum structures and which would be required to be developed.

58.     It is also not in dispute that leaving aside such small area occupied by the hutments on the larger land belonging to the petitioner, there are 07 buildings in existence identified as buildings A to G. The occupants of these buildings have formed a co-operative society namely “Mount Nirmala Co-operative Housing Society Ltd.” having 64 members, however, in respect of two buildings (Building E and F), a co-operative society has not been formed by its residents. Also, earlier a lease which was executed in favour of one Salsette Catholic Co-operative Housing Society on 31 July, 1969, was surrendered by the said society in favour of the petitioner vide a Deed of Surrender dated 27 July, 2018.

59.     It is not in dispute that such “part of land” admeasuring 1596.40 sq. meters was declared as a slum vide a notification dated 30 November, 1978 issued by the Office of the Deputy Collector (ENC) and subsequently encroachment on the petitioner's land increased which is presently admeasuring 1596.40 sq. meters. Thus, the ownership of the petitioner in respect of the land under the slum structures is not in dispute.

60.     It appears that the slum dwellers, who were 35 in number, have formed respondent no.4 a proposed cooperative society, who through its developer appears to be interested to redevelop the portion of the land occupied by the slum dwellers. It appears from the record that on 20 December, 2001, a notice was issued by the Deputy Collector (Encroachment/ Removal), Western Suburbs, on an application as made by the proposed society-respondent no.4. By such notice, objections were invited in respect of redevelopment as to why for the purpose of redevelopment, acquisition of an area about 749 sq. meters be not undertaken, however, further steps in that regard were not taken.

61.     It, however, appears that the petitioner had taken up the issue of redevelopment of its land under slums, with the slum dwellers/ respondent no.4-society, inter alia asserting that the petitioner intended to redevelop such land occupied by the slum dwellers, as also the petitioner intended to redevelop the existing buildings situated on the larger plot. The total area proposed to be developed by the petitioner was an area of 10,709 sq. meters which included the entire area of CTS No.B-960 and some area from CTS No.B-961. It also appears that in this regard, discussion/ correspondence had ensued between the parties. On 08 June, 2013, respondent no.4 society addressed a letter to the petitioner that if redevelopment proposal is not received from the petitioner within 15 days, respondent no.4 will approach the SRA for acquisition of the said land. In responding to such letter, the petitioner by its letter dated 13 June, 2013 categorically recorded that several meetings were held between the petitioner and the representative of respondent no.4 and in all these meetings, the petitioner had shown its willingness to redevelop the said land. It appears that various meetings were held between the parties from 2013 to 2017, so as to explore the possibility of the redevelopment of the subject land under the Regulation of DCR 33(10) read with Appendix IV of the Development Control Regulation for Greater Mumbai 1991.

62.     The petitioner at no point of time took a position or informed the society that the petitioner was not willing to undertake the redevelopment. Also, without a real failure of negotiations which had taken place between the petitioner and the slum dwellers or their proposed society, respondent no.4 society had earlier appointed one developer namely M/s. Accord Estates, whose appointment was later on terminated by the society and respondent no.5-M/s. Saldanha Real Estate Pvt. Ltd. was appointed by the society as its new developer. The petitioner was approached by the society and developer for its ‘no objection’ for redevelopment at the hands of respondent no.5 which was not granted by the petitioner on the ground that the petitioner itself was ready and willing to undertake the redevelopment.

63.     It is also clear that by its letter dated 04 January, 2018, the society had taken a strange stand that merely because the land was occupied by the slum dwellers for a long time, the petitioner had lost ownership rights in respect of the said land. Thus, the presumption of the slum dwellers was of extinction of the petitioner's ownership rights. It also appears that thereafter the society, sometime in the year 2018, proceeded to execute a development agreement with respondent no.5. However, quite astonishingly contrary to its presumption, the society by its letter dated 13 December, 2018 addressed to the petitioner requested for the petitioner's NOC for redevelopment.

64.     Most significantly, as also surprisingly, on 04 January, 2019, respondent no.5-developer sought to alter its position, in as much as, respondent no.5-developer by its letter dated 04 January, 2019 made an offer to the petitioner that he was willing “to purchase” the petitioner's land or that the petitioner grants a perpetual lease in his favour and accordingly offered an amount of Rs.3 Crores.

65.     Thereafter on 04 February, 2019, the society by its letter requested the petitioner not to proceed with the petitioner's plan of taking up composite redevelopment of the slum land along with its other land. It is on such backdrop, on 06 October, 2019 the petitioner addressed a letter to the CEO, SRA informing that the petitioner is the owner of the land, who was ready and willing to redevelop and that all the occupants of the said land had in principle agreed to grant consent for redevelopment in the petitioner's favour. The petitioner also recorded that the occupants of the subject land would be re-accommodated. This was stated to be the result of a meeting which was held between the petitioner and office bearers of the society on 22 March, 2019. Again the petitioner addressed a letter dated 07 February, 2020 to the CEO, SRA informing him that the petitioner who is the owner of the subject land had intended to redevelop the said land and had initiated dialogue with the slum occupants, as also the feasibility of the project was also informed to the slum dwellers. The petitioner also recorded that the petitioner was in the process of obtaining NOC from the occupants so that the petitioner can start the process of redevelopment of the land occupied by the slum. The petitioner also requested that the land be de-notified as a slum.

66.     It is at such juncture, the petitioner received a letter dated 30 September, 2020 from the CEO, SRA, informing the petitioner that the area of 1596.40 sq. meters from CTS No. B-960 was proposed to be declared as ‘slum rehabilitation area’ under the provisions of Section 3C(1) of the Slum Act. The petitioner was called upon to file its objections. A public notice to that effect was also issued on 30 September, 2020 inter alia recording that the society had made a request application for declaration of the area concerned as a slum rehabilitation area under Section 3C of the Slum Act. The petitioner by its letter dated 21 October, 2020, responded to the public notice dated 30 September, 2020 inter alia recording that the petitioner as a owner of the land, intended to develop the land under the rehabilitation scheme, as also there was an intention to develop the land as also a part of the larger land, and for such purpose, it would engage a competent party to undertake the same and comply with all applicable laws including the provisions of the Slum Act.

67.     It appears to be quite surprising that the CEO, SRA had taken all these steps namely of addressing a letter dated 30 September, 2020 to the petitioner as also issuing a public notice dated 30 September, 2020, during the most difficult times the country was facing, namely when the country nay the world was severely affected being under the grip of the Covid-19 pandemic. It was also a period of total lockdown.

68.     Be that as it may, despite such difficult times, the petitioner responded to the SRA’s public notice by its letter dated 21 October, 2020 inter alia stating that the petitioner had every intent and desire to develop the same as a slum rehabilitation scheme. It was recorded that the petitioner had several rounds of discussions with both the slum dwellers and also certain occupants of the larger land and had sought consents of the slum dwellers in respect of the rehabilitation. It was also recorded that despite repeated follow up and requests for their consents which the slum dwellers had promised to grant, the slum dwellers had not reverted to the petitioner. The petitioner hence stated that the petitioner had taken active steps in regard to the development of the slum land, as also the larger land. In this view of the matter, the petitioner called upon the CEO, SRA not to engage or appoint any third party as developer of the property under the Slum Act. This apart in clear terms, the petitioner recorded that the petitioner as the owner of the land had the first right in law to develop the slums and accordingly, made clear of his desire, intent and interest to develop the same. In this regard, again overlooking that it was the pandemic period i.e. on 19 November, 2020, as if there was a staggering hurry, the CEO, SRA issued a notice to all concerned for remaining present for a hearing in respect of the proposed 3C declaration in relation to the land in question.

69.     On such backdrop, on 04 December, 2020, the petitioner once again addressed a letter to the CEO, SRA, recording that the petitioner being the absolute owner of the land in question, the petitioner had an intention to develop the land along with larger land and had taken material steps in that regard. The petitioner also furnished the entire background of the discussion which has taken place with the slum dwellers in that regard. The petitioner also referred to the Power Point Presentation as made to the office- bearers and representative of the society. However, on 29 December, 2020, in the middle of the pandemic period, the CEO passed an order rejecting the petitioner's objections in declaration of the land in question as a slum rehabilitation area under Section 3C(1) of the Slum Act and accordingly, on 31 December, 2020, a notification under Section 3C of the Slum Act was published in the Official Gazette. On 05 January, 2021, the Deputy Collector (Mumbai City), SRA, forwarded a copy of the order dated 29 December, 2020 passed by the CEO, SRA to the petitioner.

70.     The petitioner has assailed the order dated 29 December, 2020 by filing an appeal before the Apex Grievance Redressal Committee (AGRC), which is stated to be pending.

71.     It is on the above conspectus, and despite the fact that the petitioner on earlier several occasions had informed the CEO, SRA that the petitioner was ready and willing to undertake the redevelopment of the slum within its authority as the owner of the land, the CEO, SRA however proceeded to issue impugned public notice dated 29 October, 2021 inviting objections and suggestions to compulsory acquire the petitioner's land under slum under the provisions of Section 14 of the Slum Act. Such public notice was issued on a proposal as submitted by the society as categorically recorded in the public notice. The acquisition of the land being proposed as per Section 14(1) of the Slum Act was for the purpose of implementation of the slum rehabilitation scheme, at the behest of the slums society. Such notice also records that the land owner or anybody who had any right, title or interest, if have any objection in regard to the proposed redevelopment of the said slum land, he/she may submit written objection to the SRA within a period of 30 days from the date of publication of said notice. Accordingly, on 26 November, 2021, the petitioner submitted a detailed reply to the SRA objecting to the public notice dated 29 October, 2021 inter alia informing that the petitioner had already filed an appeal against the declaration of the said portion of land as slum rehabilitation area under Section 3C of the Slum Act which was pending before the AGRC. The petitioner also recorded that the petitioner had entered into a series of correspondence with the occupants of the hutment structures in regard to the development of the slum structures and that the petitioner was in the process of implementing the redevelopment project for the entire scheme of CTS Nos.B-960 and 961 totally admeasuring 10,709.1 sq. meters and for which the petitioner had already submitted a redevelopment plan for approval to the MCGM and that all the relevant documents in that regard were already submitted. What is material to be seen is that in paragraph 8 of such letter, the petitioner recorded that the petitioner being the owner of the land was interested and had initiated steps for redevelopment on the entire of its ownership land, which included the land in question occupied by the 35 slum dwellers, subject matter of public notice dated 29 October, 2021. The petitioner also requested for a physical hearing.

72.     It is in the above circumstances, the petitioner appears to have been caught in a labyrinth that on one hand, as the AGRC was not proceeding to decide the petitioner's appeal against declaration of the petitioner's land as a ‘slum rehabilitation area’ and on the other hand, the CEO, SRA was hurriedly proceeding to take steps to acquire the petitioner's land under Section 14(1) of the Slum Act. The petitioner hence, filed the present petition on 10 February, 2022 for the reliefs as prayed for as noted in paragraph 5 of this judgment. It is during the pendency of the petition, the CEO, SRA passed an order dated 29 March, 2022 whereby the objections as raised by the petitioner to the notice under Section 14(1) of the Slum Act were rejected by the CEO, SRA, primarily on the ground that in pursuance of Section 13 read with Section 3C(1), the petitioner had not submitted a proposal for redevelopment of the slum area within 120 days of the said notification and inter alia for such reason, there was no requirement of any permission to be taken of the owners of the land to undertake redevelopment of the land.

73.     In the above circumstances, considering the petitioner's case for adinterim reliefs, by an order dated 08 April, 2022 passed by a co-ordinate Bench of this Court (G. S. Patel, J. as His Lordship then was and Madhav Jamdar, J.), ad-interim reliefs were granted to the petitioner in terms of prayer clause (c) namely of a stay on the effect, implementation and operation of the impugned notice dated 29 October, 2021. In passing such order, the Court noted the submission of the petitioner that the private owner is not to be straightaway deprived of his property and he is to be afforded a remedial opportunity of a chance to ameliorate the conditions which according to the petitioner has never been done or has been wrongly refused. In such context, the Court observed that interim relief was necessary and if it was to be refused, then there was a likelihood of an irreversible situation namely the petitioner, as the private owner, being deprived of ownership (the question is not of compensation), and a divesting of title from the petitioner. It was observed that reversing such situation might be exceedingly difficult and consequently, directed that no further steps towards acquisition of the property are to be taken until the adjourned date of hearing. The Court also observed that the developer’s scheme as submitted to the CEO, SRA was purportedly accepted. It is on such backdrop, the petition was also directed to be amended so as to assail the decision of the CEO, SRA dated 29 March, 2022 rejecting the petitioner's objection against the acquisition of the petitioner's land under Section 14(1) of the Slum Act.

Questions for determination

74.     On the above conspectus, the questions, which would fall for determination in the present proceedings, are as follows:-

i. Whether the impugned order dated 29 March, 2022 passed by the CEO, SRA rejecting the petitioner’s objection against the acquisition of the petitioner’s land under the provisions of Section 14(1) of the Slum Act is legal and valid?

ii. Was it open for the CEO, SRA to refuse to grant an opportunity to the petitioner to undertake redevelopment in the petitioner’s legal capacity as the owner of the land?

75.     In so far as the first question is concerned, it would be relevant to note the reasons as set out in the impugned decision dated 29 March, 2022 of the CEO, SRA in rejecting the petitioner’s objections, the relevant extract thereof read thus:-

“ Official translation

……..

Similarly, after the area is declared as Slum Patel, Rehabilitation Area under section 3C(1) of Section 13 of the said Act, the Land owners have not submitted any proposal for rehabilitation within the prescribed period of 120 days, to this Office. Therefore, as per the revised provisions, now there is no need in the present matter, to obtain the permission or No-Objection certificate from the land owner.

6.       Sufficient opportunity has been given to the Land-lord and the Objectors for hearing from time to time and reasonable opportunity has been given to them to putforth their say.

7.       Consent of the Structure owner is not required at the time of acquisition of land for Slum Rehabilitation Scheme, as per the provisions of the prevailing Act.

8.       It has not been proved before any Competent Court that the documents submitted by the Applicant are bogus and no suit in respect thereof is pending as well before any Competent Court and therefore, the said point raised by the Complainant is not proper to be held as valid.

9.       The land acquisition is necessary in view of the development of the said property and in the larger public interest. On perusing the file in this matter, it is found that no injunction order has been passed by any Competent Court restraining from commencing with the process of land acquisition under section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.

Therefore, in the above-mentioned matter, it is appropriate to reject the objections raised by all the Objectors for the above mentioned reasons and it is necessary to send the proposal to the Government for acquisition of the land under section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, for granting approval thereto.

Hence, I, Chief Executive Officer, Slum Rehabilitation Authority, Bandra, hereby pass the order as under :-

O R D E R

1) All objections raised by the Objectors in the matter are rejected.

2) The process of acquisition of the property bearing C.S. NO. B/960, area admeasuring 1596.40 sq.mt situated at village Bandra, Tal. Andheri, of Shree Kadeshwari S.R.A. Co-operative Housing Society (Proposed) under section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, shall be commenced and the proposal in respect thereof shall be sent to the Government for approval.”

(emphasis supplied)

Relevant provisions

76.     To examine the legality of such decision taken by the CEO, SRA, we may be required to note some of the relevant provisions of the Slum Act falling under Chapter I-A which read thus:-

“3C. Declaration of a slum rehabilitation area

(1) As soon as may be after the publication of the Slum Rehabilitation Scheme, 1 [the Chief Executive Officer] on being satisfied that circumstances exist 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 manner as may be specified by 2 [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. … … … ..

(Section as inserted below Section 3D in Chapter-I-A)

13. Power of Slum Rehabilitation Authority to develop slum Rehabilitation area

(1) Notwithstanding anything contained in sub-section (10) of section 12, the Chief Executive Officer shall, after any land has been declared as the Slum Rehabilitation Area, including community economic activity area, if the owners, landholders or occupants of such land do not come forward within a reasonable time, which shall not be more than one hundred and twenty days, required for relocation and rehabilitation of protected and other occupiers justifying with the Slum Rehabilitation Scheme for redevelopment of such land, by order, determine to redevelop such land by entrusting into any agency or other developer for the purpose.

(2) Where on declaration of any land as Slum Rehabilitation Area, the Chief Executive Officer is satisfied that, the land in the Slum Rehabilitation Area has been or is being developed by the owners, landholders or occupants or developers in contravention of the plans duly approved, or any restrictions or conditions imposed under subsection (10) of section 12, or in contravention of any provision of any Slum Rehabilitation Scheme or any condition specified in the approval or has not been developed within the time, as specified under such conditions of approval, he may, by order, determine to develop the land declared as Slum Rehabilitation Area by entrusting it to any agency or the other developer recognized by him for the purpose.

(3) The agency or the other developer so appointed shall within a period of forty-five days of the order of the Chief Executive Officer, be required to deposit an amount of compensation payable to the outgoing landowners or occupants or developers, as the case may be, for expenditure incurred by them on payment made to any public authority, local bodies for receiving approvals for the Slum Rehabilitation Scheme and construction of rehabilitation tenements as determined by the Chief Executive Officer:

Provided that, such compensation shall not be payable by the agency appointed by the Chief Executive Officer, for any expenditure incurred towards construction to meet conditional obligations made to any third party by the landowners or occupants or previous developers, as the case may be. The Chief Executive Officer before passing such order shall obtain report from approved valuer independently appointed on his behalf and by the concerned parties to the proceeding before the Chief Executive Officer:

Provided further that, before passing such order by the Chief Executive Officer, the concerned landowner or occupant or developer, as the case may be, shall be given a reasonable opportunity of being heard and time which shall not be more than thirty days of showing cause why the order should not be passed:

Provided also that, an appeal, if any, against the order of the Chief Executive Officer shall be filed before the Grievance Redressal Committee and order of the Grievance Redressal Committee shall be final and binding on all the parties."]

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 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].

[(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.

77.     It is thus seen that Section 3C provides for declaration of a slum rehabilitation area, which in the present case, was declared on 31 December, 2020 against which the petitioner’s appeal is pending before the AGRC and during the pendency of such appeal, the CEO, SRA proceeded to issue a notice under Section 14(1) of the Slum Act for acquisition of the petitioner’s land admeasuring 1596.40 sq. meters declared as a slum rehabilitation area.

78.     On a plain reading of Section 13 of the Slum Act, which is the power vested with the slum authority to develop the slum rehabilitation area, it is clear that the CEO-SRA, only after declaring the land as a Slum Rehabilitation Area and in the event if the landholders or occupants of such land do not come forward within a reasonable time, which shall not be more than 120 days, required for relocation and rehabilitation of protected and other occupiers with a slum rehabilitation scheme for redevelopment of such land, would have the jurisdiction to pass an order to determine to redevelop such land by entrusting the same to any agency or other developer for such purpose. Sub-section (1) of Section 13 read with the proviso below sub-section (2) which ordains that the CEO, SRA before passing such order is under an obligation to grant a reasonable opportunity to the concerned land owner or occupant of being heard, by issuing a show cause notice as to why such order should not be passed.

79.     Thus, the basic requirement for the CEO-SRA to exercise jurisdiction under Section 13(1) of the Slum Act is inter alia on the premise that there is a slum rehabilitation area and that if the owners, landholders or occupants of such land do not come forward within a reasonable time which shall not be more than 120 days with a slum rehabilitation scheme for redevelopment of such slum land for relocation and rehabilitation of protected and other occupiers, the authority accordingly can pass an order to determine to redevelop such land by entrusting the same to any agency or other developer for such purpose. Thus, necessarily sub-section (1) of Section 13 per se does not contemplate any acquisition of land. It merely contemplates that on the failure of the owners, landholders or occupants of a slum rehabilitation area to come forward within a reasonable time which shall not be more than 120 days, the competent authority (CEO, SRA) can pass an order to redevelop such land by entrusting it to any agency or other developer for such purpose. The question is what would be the subjective satisfaction that the owner has not come forward to develop the land and whether such intention which was on record of the SRA could be given a go-bye by the CEO-SRA for want of a formal scheme.

80.     In the present case, the record is replete with materials that the petitioner, at all material times, had expressed its willingness before the CEO, SRA, as also the slum dwellers to the effect that the petitioner at all material times was willing to undertake redevelopment of the slum area and to provide to the 35 slum dwellers a permanent alternate accommodation. In such circumstances, the question is whether there was any need for the CEO, SRA to proceed to take steps by issuing a notice calling upon the objections for acquisition of the land in question under Section 14 of the Slum Act.

81.     The powers under Section 14(1) of the Slum Act are required to be exercised by “the State Government” only on a representation from the competent authority. If it appears to the State Government that in order to enable the authority 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 such area or any land as described therein 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 the said provision. However, as per the proviso below sub-section (1), before publishing such notice, the State Government, or as the case may be, the competent authority (CEO, SRA) may call upon, by notice, the owner, 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 thereof, to the competent authority within the period specified in the notice; and the competent authority thereafter 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. It is only when a notice as set out in sub-section (1) 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.

.82. In the facts and circumstances of the present case, the proceedings before the Court are at the stage where the objections, as submitted by the petitioner to the competent authority (CEO, SRA) against the proposal to acquire the land in question, have been rejected.

83.     As noted above, it clearly appears from the facts and as relevant to Section 14, the present case is certainly not a case where the slum rehabilitation authority was required to execute any work of improvement or to redevelop the slum area in question, for the reason that the petitioner by its several letters had informed the CEO, SRA that the petitioner was ready and willing to undertake redevelopment of its land inhabited by the slum dwellers. It is, therefore, difficult to comprehend as to on what material the CEO, SRA had formed an opinion that a notice under Section 14(1) be issued inviting objections on the proposed acquisition of the petitioner’s land. Even the public notice dated 29 October, 2021 under Section 14 of the Slum Act does not indicate any reason whatsoever except the fact that the proposal is received from respondent no.4-society. The contents of the public notice hence are required to be noted which reads thus:-

SLUM REHABILITATION AUTHORITY

No. Tha-1 (SC)/Acq/kadeshwari CHS/21-41777. Date 29 OCT 2021

PUBLIC NOTICE

It is hereby informed that the office has received a proposal to acquire land for implementation of Slum Rehabilitation Scheme under Section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act, 1971 as mentioned in the table below. The proposal is for Shree Kadeshwari Co. Op. Housing Society (Prop.)

Land owner or anybody who claims to have any right, title or interest (if any) is having any objection in respect of the proposed acquisition of the aforesaid property as acquired may submit written objection to slum rehabilitation authority within a period of 30 days from the date of publication of this notice.

(SATISH LOKHANDE)

CHIEF EXECUTIVE OFFICER

SLUM REHABILITATION AUTHORITY

84.     At this stage, it may not be out of place to note the consequences which Section 13 of the Slum Act would bring about. Section 13(1) of Slum Act as noted above, provide that if the landholders or occupants of the land do not come forward within a reasonable time, which shall not be more than 120 days with a slum rehabilitation scheme to be undertaken by redevelopment of such land, in such eventuality, the CEO, SRA may determine to re-develop such land by entrusting the same to any agency or other developer for such purpose and if such an order is to be passed by the CEO, SRA, a reasonable opportunity of being heard is to be given to the concerned land owner or occupant or developer as the second proviso to Section 13(2) would provide. However, the present case is not a case where a notice under Section 13 was issued so that the time limit, as specified in Section 13(1) of 120 days for the petitioner as owner to come forward would start ticking and/or become applicable. In any event, even assuming that the petitioner did not come forward within a period of 120 days from the declaration of the land in question as slum rehabilitation area, which was by a notification dated 31 December, 2020, the logical corollary would be an obligation on the CEO, SRA to issue a notice under Section 13 of the Slum Act, as Section 13 clearly provides that the CEO would be empowered to redevelop such land by entrusting it to any agency or other developer for such purpose. In the present case, the circumstances as borne out by the record were two fold that not only the petitioner in his capacity as owner of the land in question had expressed its readiness and willingness to develop the land as occupied by the slum dwellers and declared as a slum rehabilitation area, but also even the society had appointed respondent no.5 as a developer and a proposal was sought to be submitted through such developer to undertake a slum rehabilitation scheme. If this be the position, it is difficult to comprehend as to how the CEO, SRA in deciding the objections under Section 14 can take recourse to Section 13(1) of the Slum Act so as to impose a time limit of 120 days, being a relevant factor for taking a decision, that the land of the petitioner needs to be acquired. In any event, once Section 14 notice (as impugned by the petitioner) itself has referred to the fact that the land is sought to be acquired at the behest of the society, in our opinion, there is no reason for invoking the provisions of Section 14 of the Slum Act by the CEO, SRA. The object and intention of Section 14 cannot merely be the intention of a slum society that the land be acquired as desired by the slum society. If such meaning is to be attributed to Section 14, the provision would be rendered draconian, bringing horrendous consequences not imagined by the legislature, and extraneous to the provision.

85.     It thus appears to us that the CEO, SRA has not only misapplied the provisions, but intermixed the jurisdictions the CEO, SRA would wield under Section 13 and Section 14 of the Slum Act. This in as much as what has been done by the CEO, SRA is to apply the provisions of Section 13(1) of the Slum Act for the purpose of Section 14, when both the provisions operate differently, as also the object which is sought to be achieved by both the provisions is totally distinct. If what has been sought to be done by the CEO, SRA by the impugned order is to be accepted to be the correct position in law, then, in respect of every development under the Slum Act at the behest of the slum society, necessarily the CEO, SRA would be required to undertake acquisition of the land under slum. This is certainly not, what the Slum Act intends or would contemplate. Thus, on the plain application of the provisions of Section 13 and Section 14, the impugned notice issued under Section 14 and the impugned order passed thereon, in our view, are patently bad and illegal.

86.     In any event, the Court cannot be oblivious to the position in law as held by the Division bench of this Court in Indian Cork Mills Pvt. Ltd. (supra). In such decision, the Court considering the scheme of Slum Act and more particularly, as contained in Chapter I-A of the Slum Act which was incorporated by the amendment by Act No. 4 of 1996, held that in applying Section 13(1) of the Slum Act, when the provision uses the words “do not come forward within a reasonable time” would mean that the SRA was required to set down the time limit by calling upon the landholder to come forward with a scheme so as to undertake redevelopment. It was held that neither the SRA or the State Government had put the petitioner therein to such a notice nor the petitioner was put to notice that a scheme not been submitted by him, would be a circumstance to take over the land of the private ownership and any action to acquire the land in the absence of such notice would be bad and illegal. The relevant observations as made by the Division bench in some detail are required to be noted which read thus:

“60. 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 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 IA, 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 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)(c) 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 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.

61. 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 Slum 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 Slum Act. Hence, we are not inclined to accept the argument as made on behalf of the Society that the principle of ejusdem generis be applied in interpreting the words 'landholders' and 'occupants' as referred in Section 13(1) to exclude owners of land.

62. 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 IA ) is to achieve and bring about an effective redevelopment of slum rehabilitation area.

63. Thus, from the legislative scheme of the amended provisions it can be clearly inferred that the rights so conferred under these 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.

64. 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 redevelopment 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 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 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.

77. 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.

92. 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 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 Maharashtra 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 subsection (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 subsection (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."

97. 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 redevelopment 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 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 wellestablished 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 that administrative 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 subsection (2) as limited to cases where the consideration for the 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."

100. 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 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.”

(emphasis supplied)

87.     Similar view as in the case of Indian Cork Mills was taken by a coordinate Bench of this Court in Yogesh Chandulal Mehta and Anr. vs. State of Maharashtra, through its Principal Secretary & Ors. wherein the Court observed that in such case, the petitioner had made various 17 2023 SCC Online Bom 82 representations to show their readiness and willingness to develop the writ property. It was observed that the CEO-SRA had overlooked the preferential rights of the petitioners-owners to redevelop the said property. It was accordingly held that the impugned order was contrary to the principles laid down by the Division Bench of this Court in the case of Indian Cork Mills Pvt. Ltd. (supra). The relevant observations of the Court are required to be noted, which reads thus:

“89. In our view the principles laid down by the Division Bench of this Court in the case of Indian Cork Mills Pvt. Ltd. (Supra.) apply to the facts of this case. In this case though the Petitioners had made various representations showing the readiness and willingness to carry out redevelopment of the writ property admittedly, Respondent No.2 overlooked the preferential rights of the Petitioners owner to undertake redevelopment of the writ property under Section 3B(4) (c) and (e) r/w. 13 (1) of the Slum Act and has sanctioned the proposal submitted by Respondent No.4 Society. The impugned order is contrary to the principles laid down by the Division Bench of this Court in case of Indian Cork Mills Pvt. Ltd. (Supra).

90. The Division Bench of this Court in case of Anil Gulabdas Shah (supra). has held that under Section 13 (1) of the Slum Act the SRA is obliged to offer the suit land to the 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. The statutory scheme cannot be given go-by. Though this Court had specifically directed Respondent No.2 to consider the principles of law in the case of Anil Gulabdas Shah (supra)., by order dated 10 February, 2011, the Respondent No.2 decided contrary to the principles of law laid down by this Court in case of Anil Gulabdas Shah (supra)., which clearly apply to the facts of this case.” w

88.     There is another peculiar aspect in regard to the present proceedings, which needs to be considered in the context of the reasons as set out by the CEO-SRA in the impugned order, to the effect that, as the petitioner had not submitted a proposal within 120 days, there was no requirement of an NOC or permission from the petitioner/ owner of the land and for such reason, the land in question of the petitioner would be required to be compulsory acquired under the Slum Act. It is not in dispute that to make such observation and to purportedly apply the period of 120 days for submission of a proposal for redevelopment by the petitioner has its genesis in the provisions of Section 13(1) of the Slum Act. As we discuss further, we may observe that such period in a straight jacket manner cannot be assumed to trigger/commence from the date of declaration of the land as a Slum Rehabilitation Area, as considered by the CEO SRA, but after a notice to that effect to undertake as to what the provision contemplates to be undertaken by the owners of the land within 120 days is issued by the CEO-SRA to the owner of the land. Hence although such period of 120 days needs to be adhered by the owners of the slum land but such period needs to commence only after a clear notice to that effect is issued by the CEO-SRA, failing which the uncertainty it would create is just to be imagined if an automatic trigger of such period is to be presumed from the date of the land being declared to be a slum rehabilitation area. The present case is a glaring example of how 120 days period could not have been made applicable for the reason that the declaration of the land as a slum rehabilitation area had taken place in the middle of the Covid-19 Pandemic.

89.     Thus in the present case declaration of the petitioner’s land as a ‘slum rehabilitation area’ having taken place on 31 December, 2020 and as noted above, from such date a forthwith or an automatic applicability of the period of of 120 days is being presumed by the CEO-SRA. Such presumption on the part of the CEO-SRA, was certainly fallacious and an arbitrary approach which in fact amounted a deeming/automatic situation being created specifically avoided to be so inserted by the Legislature. It may be observed that the legislature never intended to create a situation under Section 13 that in the event the land owner does not commence redevelopment of the slum rehabilitation area within 120 days of it being so declared in that event come what it may, the landowner is permanently deemed to have lost his rights to do so after such period of 120 days and in such situation there would be no obligation on the CEO -SRA to issue any notice to the land owner to call upon him to undertake the slum rehabilitation and instantaneously the CEO-SRA can proceed to acquire the land. Such reading of the provision would lead to an absurdity and in fact would amount to doing a violence to the plain language and purport of the provision.

90.     As in the present case even otherwise, the relevant period was affected by the Covid-19 pandemic and thus, the period of 120 days in any case could not have been reckoned from the date of the said notification dated 31 December, 2020. Even if it is reckoned from 31 December, 2020, it would have ended by 30 April, 2021, which was also the period affected by pandemic and in relation to which orders were passed by the Supreme Court in Re: Cognizance for Extension of Limitation18 . Such orders of the Supreme Court in the present case were applicable with full force. We note the said orders.

91.     The Supreme Court firstly on 23 March, 2020 had passed the following order:

“1. This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in fling their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).

2. To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, 18 Miscellaneous Application No. 21 of 2022 in Miscellanoue Application No. 665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020 irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

3. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

4. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.

5. Issue notice to all the Registrars General of the High Courts, returnable in four weeks.”

92.     Thereafter on 6 May, 2020, the Supreme Court passed the following order:

“1. By way of fling this application for directions, the applicant has made the following prayer :

“To issue appropriate directions qua (i) arbitration proceedings in relation to section 29A of the Arbitration and Conciliation Act, 1996 and (ii) initiation of proceedings under section 138 of the Negotiable Instruments Act, 1881;

2. In view of this Court's earlier order dated 23.03.2020 passed in Suo Motu Writ Petition (Civil) No.3/2020 and taking into consideration the effect of the Corona Virus (COVID 19) and resultant difficulties being faced by the lawyers and litigants and with a view to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunal across the country including this Court, it is hereby ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under section 138 of the Negotiable Instruments Act 1881 shall be extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings.

3. In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown.

4. In view of the above, the instant interlocutory application is disposed of. IA No.48375/2020 – Clarification/Correction and IA No.48511/2020 – Clarification/Correction and IA No.48461/2020 – Clarification/ Correction and IA No.48374/2020 - Intervention Application and IA No.48416/2020 - Intervention Application and IA No.48408/2020 - Intervention Application

5. Issue notice.

6. Waive service on behalf of the respondent - Union of India since Mr. K. K. Venugopal, learned Attorney General for India and Mr. Tushar Mehta, learned Solicitor General, appear on its behalf. Let notice be issued to other respondents.”

(emphasis supplied)

93.     Thereafter on 10 July, 2020, the Supreme Court passed the following order:

“1. Parties have prayed to this Court for extending the time where limitation is to expire during the period when there is a lockdown in view of COVID-19 or the time to perform a particular act is to expire during the lockdown.

I.A. No. 49221/2020-Section 29A of the Arbitration and Conciliation Act, 1996

2.       Taken on Board.

3.       In Suo Moto Writ Petition (C) No. 3/2020, by our orders dated 23.03.2020 and 06.05.2020, we ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 shall be extended w.e.f. 15.03.2020 till further orders.

4.       Learned Attorney General has sought a minor modification in the aforesaid orders.

5.       Section 29A of the Arbitration and Conciliation Act, 1996 does not prescribe a period of limitation but fixes a time to do certain acts, i.e. making an arbitral award within a prescribed time. We, accordingly, direct that the aforesaid orders shall also apply for extension of time limit for passing arbitral award Under Section 29A of the said Act…….”

(emphasis supplied)

94.     On 8 March, 2021, the Supreme Court in disposing of suo moto proceedings noted that the lockdown had been lifted, as the country was returning to normalcy. In that view of the matter, the Supreme Court observed that the period from 15 March, 2020 till 14 March, 2021 shall stand excluded in computing the period of limitation for any suit, appeal, application or proceedings, and consequently, the balance period of limitation remaining as on 15 March, 2020, if any, shall become available with effect from 15 March, 2021. However, in or about April, 2021 again throughout the country, adverse circumstances emerged on the pandemic front. Considering such circumstances, the Supreme Court passed an order dated 27 April, 2021 on the suo-motu proceedings inter alia extending the period from 14 March, 2021 till further orders to stand excluded. The following are the directions of the Supreme Court:-

“6.     We also take judicial notice of the fact that the steep rise in Covid-19 virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of Covid-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant–public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders.

7.       It is further clarified that the period from 14th March, 2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. We have passed this order in exercise of our powers under Article 142 read with Article 141 of the Constitution of India. Hence it shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities.”

(emphasis supplied)

95.     Thereafter the Supreme Court passed a further order on 23 September, 2021, which reads thus:

“I.      In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021.

II.      In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply.

III.     The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

IV.     The Government of India shall amend the guidelines for containment zones, to state.

“Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.”

As a sequel to disposal of MA No.665/2021, pending interlocutory applications, including the applications for intervention/impleadment, also stand disposed of. ”

(emphasis supplied)

96.     Thereafter again on 10 January, 2022 the Supreme Court passed a further order whereby the period of limitation came to be extended till 28 February, 2022.

97.     Considering such orders passed by the Supreme Court, it is quite astonishing as to how CEO, SRA in the first place issued the impugned notice dated 29 October, 2021 and further reckoned the period of 120 days in the context of Section 13(1) from the date of CEO, SRA passing order under section 3C notifying the land as Slum Rehabilitation Area on 31 December, 2020. On such count also, the period of 120 days as reckoned by the CEO, SRA to commence from 31 December, 2020 would be required to be held to be patently illegal being a reason attributed by the CEO, SRA to reject the petitioner’s objection to the notice issued under Section 14 of the Slum Act.

98.     Apart from the above observations, some of the vital facets of the present case cannot be overlooked namely that it is a small plot of land admeasuring 1596.40 sq. meters owned by the Trust which has only 35 structures which are now regarded as slum structures. At all material times and in regard to which, the record is replete, the petitioner had shown readiness and willingness to undertake redevelopment of the slum structures by providing them a permanent alternate accommodation. Even if proposal of the petitioner was a composite proposal not only to develop the area occupied by the slum structures, but also the larger area owned by it, there was no bar whatsoever in law, for the petitioner to undertake such redevelopment by approaching the necessary authorities. However, if for some reasons, which are beyond the control of the petitioner, such a composite development was not possible, then certainly the petitioner could not have been foisted with a compulsory land acquisition under the Slum Act, so as to label the petitioner of being unwilling to undertake redevelopment, and/or that the slum rehabilitation authority in such event would be required to undertake such redevelopment, as being insisted by the society formed by the slum dwellers. Such an approach on the part of the SRA, in our opinion, would be patently arbitrary and illegal, in as much as, without granting an opportunity to undertake the redevelopment of its own land, by putting the petitioner to such appropriate notice, terms and conditions, a compulsory acquisition of land could not have been foisted on the petitioner. Such approach to acquire one’s land would amount to a complete negation of the rights guaranteed under Article 300A of the Constitution of India, as conferred on the owner of the land. In any event, it cannot be forgotten that the Constitutional rights guaranteed under Article 300A stand on a higher pedestal and such right cannot be taken away merely because the private land is encroached by the slum dwellers and that the slum dwellers desire acquisition of land.

99.     The SRA and whosoever is concerned in regard to the slum redevelopment need to be conscious of the ground realities namely that it is an herculean task in a city like Mumbai to remove any encroachment on private and public land. It is equally difficult for a private owner of the land to safeguard its land and prevent encroachment. This is the sad story, as encroachment does not happen by such encroachers simplicitor squatting on the land, invariably the encroachment is backed inter alia by slumlords, criminals, social workers, politicians (as the squatters would be vote banks). For a bonafide landlord, it is impossible to fight with such forces and keep litigating on removal of encroachment. Thus, to achieve removal of the encroachment, is seen to be impossible for the landlords and for public bodies like State Government and Municipal Corporation as also the Airport Authority, as major public lands in the City of Mumbai have vanished from the public pool and are subjected to private development by developers under the garb of slum re-development, as the rulings of this Court on several such issues would remind us of these woeful realities. In these circumstances, persons like the developers who are interested in commercial exploitation of any land under the slums may it be private or public, who are backed by other powerful forces and many times also by the government machinery, initiate proceedings under the Slum Rehabilitation Act for declaring private land as a slum. The moment such a declaration takes place, a nightmare and one of the most difficult journeys any citizen who owns land, commences namely to pursue litigation on such a declaration. It is hence as good as a preliminary capital punishment in so far as the ownership rights qua the private land are concerned. The way forward is just to be imagined. This being the case immediately developers who keep track on such development potential purportedly at the behest of the slum society come forward on a purported appointment by a slum society. In reality it is seen that it is the developer who actually forms the slum society. He is the one who is taking steps to enter into a development agreement with the society and the slum dwellers and put up a proposal before the SRA through his architect, everything in the name of the slum society. This for the reason that there is a bonanza of FSI of a free sale component available to be developed by the developer. The question is why should the developers have such bonanza on a land of somebody’s ownership or of a private ownership. Thereafter, the SRA purporting to exercise some pious obligation would, under a label of social sympathy and purportedly to forward the object of the Slum Act, commence a process to permit development at the hands of such developer and in a given situation, start proceedings to acquire the land. To say the least, we can certainly take a judicial notice that this has been a sad reality, replete on this branch of slum jurisprudence, as majority of these cases are asserted by the developers with all resources and legal ammunition they could have.

100.   To our mind, it is also unconscionable that an owner of the land repeatedly knocking the doors of the SRA, that it intends to undertake redevelopment is shown the exit door, by issuing a notice under Section 14(1) of the Slum Act. As to what are the circumstances and materials on the basis of which the CEO, SRA has formed an opinion that in a given case, compulsory acquisition of land for redevelopment of slum would be necessary, are required to be demonstrated before the Court.

101.   In these circumstances, when valuable private rights as guaranteed under Article 300A of the Constitution to an owner of the land are being deprived under the garb of slum rehabilitation, there has to be an insurmountable situation on record of the SRA or for any reasonable body of persons to come to an unimpeachable conclusion that the only and only remedy and/or avenue in a given case is to acquire the private land and not permit the owner of the land to undertake the development. The CEOSRA has an onerous obligation to reasonably, non-arbitrarily, and objectively deal with the valuable property rights of private citizens who are dragged in such situation that the monsters of encroachment and persons supporting them take the rule of law in their hands in depriving the land owner of his right to property. They forget that there is a rule of law and there are Courts and any such attempt to dent the rule of law can be dealt with iron hands. We may also add that if the official machinery was to act as per law, today we would not have been confronted with the situation of an international city like Mumbai being also known for its slums on private and public lands [See the observation of the Court in High Court on its own motion (In the matter of Jilani Building at Bhiwandi ) vs. Bhiwandi Nizampur Municipal Corporation & Ors.).

102.   Be it so, in our opinion, a cumulative reading of the provisions 19 2022 SCC OnLine Bom under Chapter-I-A does not, in any manner, depict a legislative intent that the moment the private land is declared as a slum and a cooperative society of slum dwellers is formed, no opportunity whatsoever is required to be granted to the owner of the land to undertake development of the land. In fact, primary obligation on the CEO-SRA as also for the slum rehabilitation society is to issue a notice to the owners of the land specifying the period / a time bound schedule i.e. 120 days as contemplated under Section 13(1) of the Slum Act. This would be the basic necessity before a owner could be deprived of its constitutional rights under Article 300A before applying the statutory 120 days as contemplated under Section 13(1) of the Slum Act either from the declaration of the slums as the slum rehabilitation area or any insistence on the part of the society and which may not be to the knowledge of the owner. In our opinion, the petitioner would be correct in its contention that Section 13(1) would be required to be read in the context of what has been observed by the Division Bench of this Court in Indian Cork Mills Pvt. Ltd. vs. State of Maharashtra (supra), in as much as, for a valid acquisition under Section 14, the pre-requisite would be an opportunity to call upon the owner of the land to come forward with a scheme to undertake the redevelopment by putting him to a notice that a rehabilitation scheme if not submitted by him, would be a circumstance which would be taken against him so as to take steps to acquire the land. The Division Bench had held that such notice to the land owners was imperative, considering the plain reading of Section 14(1) of the Slum Act. The observations of the Division Bench in that regard are already noted by us hereinabove.

103.   Moreover, it can be clearly seen that the SRA has accepted the fact that the owner would have preferential rights to undertake redevelopment of the slums which has also been noted by the Division Bench in the case of Anil Gulabdas Shah vs. State of Maharashtra (supra) referring to SRA’s circular. Such position was also considered by the Division Bench of this Court in Indian Cork Mills Pvt. Ltd. vs. State of Maharashtra (supra) wherein the Court in paragraph 97 observed that such circular was binding on the SRA. Such observations of the Division Bench read thus:-

“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 4th 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 mandamus 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 12th December 2005 and the same has been continuing.”

104.   Now coming to the case as urged on behalf of the respondents. The contention as urged on behalf of the developer that the petitioner has exhausted its rights for preferential development available under Section 13(1) of the Slum Act, is not well founded considering the clear position in law as held in the decision of this Court in Indian Cork Mills Pvt Ltd v State of Maharashtra & Ors., that the SRA had in the present case, has never put the petitioner to a prior notice to undertake redevelopment of the slums in question, so as to put him on a guard that failing to submit any proposal and/or to undertake rehabilitation of the slum dwellers within any prescribed period, would be taken as a ground against the petitioner for proceedings to be initiated under Section 14 of the Slum Act. We have already in extenso, noted the observations of the Division Bench in Indian Cork Mills Pvt Ltd v State of Maharashtra & Ors. in that regard. In our clear opinion, the SRA having failed to issue such notice to the petitioner, the impugned steps being taken by the competent authority inviting objections against acquisition itself were rendered bad and illegal, much less there cannot be any acquisition in the absence of such basic requirement being complied by the SRA.

105.   The next contention as urged on behalf of the developer is to the effect that the petitioner had waived off its rights to undertake the redevelopment of the land for the reason that the petitioner had approached the AGRC in an appeal assailing the declaration of the land as a ‘slum rehabilitation area’. Such contention cannot be accepted considering the facts of the present case, in as much as the petitioner, at all material times, had made known of its intention not only to the society, but also to the SRA that the petitioner was ready and willing to undertake the redevelopment in the manner as suggested by the petitioner. Such request of the petitioner was never rejected by the SRA. This apart, the petitioner had also assailed the decision of the SRA to declare the land in question as a slum rehabilitation area under the provisions of Section 3C(1) of the Slum Act by filing an appeal before the AGRC. This clearly indicated that the petitioner had a quarrel on the petitioner’s land being declared as a slum rehabilitation area, when the petitioner asserted it to be illegal. Such position taken by the petitioner is implicit of the fact that the petitioner has accepted that the petitioner would be under an obligation to undertake rehabilitation of the slum dwellers situated on the petitioner’s land as also it would be its legal obligation when called upon to do so by the SRA. The petitioner cannot have a situation that merely because he has filed an appeal before the AGRC assailing the declaration of the land as a slum rehabilitation area, he would surrender to the slum society, developer and CEO SRA his rights to develop his own land. Such arrangement of the petitioner would leave to travesty of justice.

106.   On a perusal of Section 13(1) of the Slum Act as provided under Chapter-I-A, the jurisdiction with the CEO, SRA comes into play only when the land is declared as the slum rehabilitation area. As also insofar as the provisions of Section 14 as falling under Chapter-I-A are concerned, the CEO, SRA would have jurisdiction to make a representation to the State Government under Section 14(1) of the Act to enable the SRA to carry out development under the slum rehabilitation scheme, only when the area is a slum rehabilitation area. The provisions of sub-section (1) of Section 14 in that regard are explicit. In the peculiar circumstances of the present case, it was necessary for the CEO, SRA to apply his mind and to take a well considered view of the matter, in as much as the CEO, SRA could not have adopted an approach of an extraordinary haste to issue a notice under Section 14(1) of the Slum Act, by inviting objections at the behest of the society in regard to the acquisition of the land under Section 14 of the Slum Act. We observe so, bearing in mind as to what would be a situation if the petitioner succeeds in his appeal assailing the notification declaring the land as slum rehabilitation area under Section 3C(1) of the Slum Act. On such eventuality, the very basis for the SRA to contemplate an action under section 13(1) as also under Section 14(1) of the Slum Act, would fall to the ground. This apart from the fact and as noted above, the CEO had shown extraordinary zeal in the present case when not only the country but the entire world was under the grip of the Covid-19 pandemic.

107.   In any event, it will not lie in the mouth of the developer and that too in the context of a notice issued under Section 14 of the Slum Act to contend that any proposal of the petitioner was deficient and was not the first proposal. The reason being, that on the record of the SRA, there was no proposal submitted by the society through the developer and hence the decision in Awdesh Vasistha Tiwari & Ors. vs. Chief Executive Officer, Slum Rehabilitation Authority & Ors. (supra) and Atesham Ahmed Khan & Ors. vs. Lakadawala Developers Pvt. Ltd. & Ors. (supra) are certainly not applicable in the present facts. We may reiterate that as far as the owner is concerned, what was necessary was the intention to make a proposal and appropriate consideration of such intention by the SRA. The intention of the petitioner was never rejected by the SRA, and directly the CEO, SRA initiated an action to acquire the land purportedly at the behest of the society.

108.   We may also observe that this is a classic case where the developer/ respondent No.5 clearly intended to usurp his position who was a person of limited contractual rights as conferred by slum society, who had intended to exploit the redevelopment of the slums, by directly entering into negotiations with the petitioner to purchase the petitioner's land affected by the slums. This clearly shows that the entire intention of the developer under the garb of the slum scheme was to profiteer and acquire ownership of the rights by the developer. When such negotiations failed, it appears that the SRA initiated a proposal to acquire the land, so that ultimately the developer can get the benefit of the land by developing the same and what would be left to the petitioner would be a meager compensation as Section 17 of the Slum Act would contemplate. We are informed that in the present case the amount of the proposed compensation for acquisition of such prime land at Bandra would be a paltry amount of Rs. 17 lakhs to be paid to the petitioner as would be determined in the event of acquisition of the land. Thus, in these circumstances, it would not lie in the mouth of the developer or the SRA to recite the usual mantra of clean and healthy surroundings for the slum dwellers, to usurp the petitioner’s right of preferential development of the land, which in our opinion, in the present case, is quite farcical.

109.   Insofar as the contentions as urged on behalf of the society are concerned, the same are also untenable. The society is not correct in its contention that merely because the petitioner had assailed the notification issued by the SRA under Section 3C(1) of the Slum Act by filing an appeal and which was pending, the petitioner - society would be entitled to proceed to pursue the SRA to acquire the petitioner’s land and vice a versa that the petitioner had become disentitled to exercise its rights without prejudice to its pending appeal before the AGRC to undertake redevelopment as a matter of first preference. Such argument on behalf of the society, is totally fallacious and cannot find any place in any of the provisions of Chapter-I-A of the Slum Act. The petitioner taking recourse to a statutory remedy cannot amount to defeating the basic rights of ownership of the land or for that matter to undertake redevelopment of the land of its ownership as the law would permit. The society is also not correct in its contention that the petitioner's proposal dated 04 May, 2021 would amount to negation of the petitioner's preferential rights to undertake the development. This, in as much as, the Executive Engineer of the SRA in his letter dated 22 December, 2021 addressed to the petitioner's architect shows that he considered the petitioner's application dated 04 May, 2021 and on a technical ground that such letter is not in the form of a proposal in its proper form, as also for the reason that, a proposal was received from respondent no.5/developer-M/s.Saldanha Real Estate Pvt. Ltd. which was stated to be in the process of consideration, rejected the petitioner’s proposal/ application to undertake redevelopment of the slums. In our opinion, such reason as attributed in the said letter is untenable. This also in the context of what has been held by this Court in Indian Cork Mills Pvt Ltd v State of Maharashtra & Ors. (supra) and the decision of the Division Bench of this Court in Anil Gulabdas Shah vs. State of Maharashtra (supra) that it would be sufficient that the owner expresses his intention to undertake redevelopment of the slums on his own land, when such notice from the owner in any form whatsoever (even being a plain application and/or a proposal) is received by the Slum Authority, it is for the SRA if necessary to require and/or call upon the owner to submit a proposal in a proper form, it may desire the owner to submit and permit the owner to undertake redevelopment within a time bound schedule. In the present case, this is precisely what has not been done by the SRA, and overlooking such requirements, the CEO, SRA has straightaway proceeded to take steps to invite objections in regard to acquisition of the petitioner's land.

110.   Insofar as the slum society’s contention as urged before us that the slums on the land in question was in existence for quite some time and therefore, after coming into force of Regulation 33(10) of the Development Control and Promotion Regulations, the petitioner should have taken steps to undertake redevelopment of the slums, also cannot be accepted. There is no such mandate under the Slum Act that no sooner there is a declaration of the land as a slum or a slum rehabilitation area under Section 3C of the Slum Act, there would be any forthwith / immediate and/or an instant requirement of an action for redevelopment of the slums to be taken by the owners of the land as per Regulation 33(10) of the DCR (as then prevailing). Such a requirement can neither be presumed nor applicable to any category of land, may it be of the ownership of the Government or private ownership. Neither the CEO SRA, the slum dwellers or the developer can fiddle with the valuable property rights of the owner in the manner as being canvassed on behalf of the developer who is the hardest constant of the present proceedings. If such an argument is accepted, it would amount to reading something in the Slum Act which the legislature itself has not provided. In any case, such contention as urged on behalf of the developer and the society also needs to fail for the reason that objections were invited by the SRA in regard to the acquisition of the land in question, only after the land was declared as slum rehabilitation area. Thus, even the SRA, in issuance of public notice dated 29 October, 2021, has not founded its case on the issuance of the notification under Section 4(1) of the Slum Act declaring the land in question as a slum.

111.   We may also observe that such contention of the society that the moment the land in question, which is of private ownership, is declared as a slum and after coming into force of Regulation 33(10) of the DCR would mandate steps to be taken to develop the land, would also be required to be held to be fallacious. As stated hereinabove, it cannot be expected that the owner of the land would instantly possess the necessary wherewithal, or would have no opportunity to mobilise/organise himself to undertake a redevelopment. Thus, it is ill-conceivable that an instant development of such land from the resources of a private person can automatically be foisted. Such an argument also lacks discernment to any ground realities in which the owner of the land in a given situation may find himself, under the scheme of the things.

112.   Once slums on a private land are recognized under the provisions of the Slum Act which is by issuance of a notification under Section 4(1) of the Slum Act or declaration of the land as a slum rehabilitation area, strangely the encroachment on a private land gets converted into a legitimate right of a free tenement to the encroacher under the slum policy of the State Government, which, in our opinion, is as good as a premium on the illegality of the encroacher in encroaching on either private or public land. Unfortunately, it is the State policy which in fact has encouraged encroachments on all categories of lands and in fact has resulted in large Government lands being siphoned out from the ‘State pool’ and equally private lands being completely lost to its owners. Such position is wholly unacceptable when the rights on every individual / person are conferred by the Constitution and the laws. [See the observation of Division Bench in Jilani Building (supra)]. In such situation, it cannot be countenanced that if the landlord lacks immediate resources to undertake redevelopment of the slums, he would be subjected to compulsory acquisition of the land. This would be too far-fetched. Even the statutory scheme does not contemplate such draconian action of such redevelopment to be undertaken by the landlord after the declaration of the land as slum under Section 4(1) or a Slum Rehabilitation Area under Section 3C of the Slum Act. If such are the parameters, they become equally applicable to all kinds of land, if the legislature desired anything otherwise the legislature would have incorporated specific provisions.

113.   Apart from what has been discussed above, as rightly submitted by Dr. Sathe, the encroachers on land cannot assert rights to rehabilitate on the very land albeit the land owner agreeing to rehabilitate them on the same land. The assertion on the part of the slum dwellers being made in the present case, which is to the effect as if the slum dwellers have higher rights on the land than the owners of the land, so as to presume absolute right of rehabilitation on the very same land even under the policies of the Slum Act, is totally untenable. The right of the slums dwellers is only to a permanent alternate accommodation under the statutory scheme and the State policies. The slum dwellers cannot have an approach that they become owners of the land and assert rights to defeat the rights of the real owners of the land. In our opinion, neither such rights of any ownership of the land to the slum dwellers are recognized by the Slum Act nor can such rights be so inferred. We test such assertion of the slum dwellers on an illustration namely, assuming a Government or private land which is encroached, is situated at a prime locality namely at Nariman Point, Cuffe Parade, Pedder Road or Malabar Hill in Mumbai. Can the encroachers of such land, in law, assert that they need to be rehabilitated at the same place or area ? The answer would be an obvious ‘No’. In our opinion, if the State Government or a public body or a private party is in a position to make available an alternate land away and even far away from the slum land and rehabilitate such slum dwellers on such alternate land, in our opinion, the rights of the slum dwellers in no manner are affected and prejudiced. The reason being that the rights of rehabilitation of slum dwellers are recognized under the policies of the State Government and as envisaged by the provisions of the Slum Act, they cannot have a recognition over and above the right to property guaranteed to a person under Article 300A of the Constitution. It would be difficult to accept that there is an absolute right in slum dwellers to be rehabilitated at the same place and/or in the same area when such rights are premised on encroachment and clothed by such Government policies. Hence, such rights cannot be elevated to an extent that it will defeat the valuable rights of property of the owners of the land and merely because effective steps (which is an impossibility) to remove the encroachment could not be Page 142 of 180 ------------------------- 11 June, 2024 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 25/06/2024 13:28:38 ::: wp 1212-22=final.odt taken. We ponder was it ever possible for the public bodies to prevent encroachment on their lands and prevent declaration of such public lands as slum under the Slum Act and/or to remove encroachment before the public lands were made available to the slum societies / developers to be commercially exploited. If this was not possible to be achieved by the mighty Government machinery, how can one expect a private person like the petitioner in the present case to prevent the tyranny of the slum dwellers and the developers.

The issues, in our opinion, are deeper issues requiring a thorough introspection on such government policies and more particularly keeping in view the plight the future generation who would suffer the ill-effects of the state of affairs, as they exist today, continues. It is high time to ponder on the future rights on such aspects. When we say we are conscious of the needs of the large cities which require a large amount of migrant work force and recognition of residential needs of such work force, however, this could not mean that valuable lands, either public or private, can be taken away merely because such lands for a long period are permitted to be encroached throwing to the winds, the elementary adherence of principles of law on the right to property. In saying so, we are reminded of the observations of the Division Bench in its decision in the suo-moto proceedings in the matter of Jilani Building (supra) wherein, in such context, the Court has made significant observations in regard to ‘need for public housing’. The relevant observations read thus:-

105. On our way towards conclusion, we may note that a chaotic state of affairs of mushrooming of slums and unauthorized and illegal constructions in every possible pocket of open land could have been avoided, provided there was a desire to have a proper vision and an effort to make an effective plan for mass public housing, which would cater to the housing needs, for a large percentage of population in a city like Mumbai. It cannot be overlooked that for a city as large as Mumbai or any other comparable city in the State, large work force and which may be migrant workforce is indispensable and perennially required, who cater to the various manpower requirements the city consumes. However, we find that in contemporary times, there is not much thought been given by the policy makers to such vital issues of affordable mass public housing, to be created to accommodate such large work force either temporarily or permanently. Moreover, the entire focus is on putting up skyscrapers on slum lands. It cannot be a situation that people from all parts of the country come to work in urban areas and there is no alternative to them but to encroach on government/public lands or private open lands and reside in filthy surroundings and in illegal structures. Such is the sorry state of affairs. Even such persons have a right to live with dignity and in appropriate humane and pleasant livable surroundings.

106. The policy makers appear to have turned a complete blind eye to these requirements of legitimate housing for such workforce, without whom the basic activities in the city would collapse. This is not only the requirement as would emerge from the constitutional guarantee as enshrined under Article 21 of the Constitution, but also what the Universal Declaration of Human Rights (1948) would provide wherein housing rights are recognized, as a part of economic and socio-cultural rights, which would guarantee a right to a standard of living adequate for health and well-being of citizens, and include the right to food, clothing, housing and medical care along with provisions for necessary social services etc. Further the International Covenant on Economic, Social and Cultural Rights (ICESCR) which is ratified by 160 States including our country also includes recognition of housing rights as a part of the broader right to adequate living conditions as seen from Article 11(1) thereof.

107. We may usefully refer to mass housing facilities and/or affordable housing plans being adopted by some of the countries like Singapore, United States of America, United Kingdom and Hong Kong as gathered from the Articles as referred by us.

… … …. ….

108. Considering the progressive steps being taken by many other countries, we feel that our policies also ought not to lag behind, so as to achieve the goals for creating ideal and slum free cities keeping in mind the interest of the generations to come. Can we have a myopic vision and forget that the generations to come would also need playgrounds, open spaces, gardens, clean and hygiene surroundings. This considering the scenario that people go on putting constructions and more so, at the behest of vested interest, wherever there are open lands. There is a need of a fundamental thinking on these vital issues of planning. A vision on these issues needs more attention in contemporary planning. If timely attention is not devoted to such issues, it is quite likely, that for the future years, things would worsen and may create insurmountable suffering, of every kind, affecting human lives who live in such cities. Thus, a serious endeavour of the policy makers, as an emergent need, ought to be, to have well-planned cities which would cater to every possible facet of human life and not merely to create unplanned and chaotic towns. Any lack of vision on these issues would be fatal for times to come.

109. We thus cannot expect citizens to languish in filthy and unhygienic slums. The right to livelihood includes a right of decent living and not an animal existence. It would include a right to live with dignity and implicit in it, is a right to live in decent houses, opposed to filthy living conditions. This ought to be an issue of prime concern for the State, so to device means to create mass housing facilities for the poor and for the economically weaker sections of the society, who are forced to live in slums in bigger cities so as to earn their livelihood and whose need for the city is perhaps indispensable. An endeavour ought to be made to bring about an era to have cities with no slums. If such ideals are achieved, it would be a pride and glory for the generations to come who would then would be the beneficiaries of dignified and ideal cities.

110. Before parting, we may observe that the State Government and Municipal Corporation would be well advised to have a scheme to reward those officers and employees who achieve civic excellence by their devoted and exemplary efforts in discharge of their duties in achieving societal welfare.”

114. The succinct observations in the concurring judgment of Mr. Justice Dipankar Datta, the learned Chief Justice (as His Lordship then was) would speak volumes on such issues which read thus:-

113. In Lewis Carroll's classic “Alice in Wonderland”, Alice was so surprised after entering the rabbit hole that she exclaimed “curiouser, curiouser”. Although ‘curiouser’ is no part of English vocabulary, Alice's utter surprise was sought to be highlighted by the author by preferring an unconventional ‘curiouser’ to the grammatically correct ‘more curious’. Alice would have certainly exclaimed “curiouser, curiouser”, had she descended in this wonder city, Mumbai, and noticed the stark urban inequalities resulting from the exceedingly sharp contrast between the wealthy and the poor, the opulent and the frugal. While the affluent enjoy lavish life-styles and show-off their new expensive acquisitions, the whole lot struggling day long for securing their daily share of meal lack proper housing facilities and even the basic of civic amenities. The gap between the “haves” and the “have nots” is so pronounced that no matter whatever welfare measures are thought of by social, political and economic reforms, it may not be possible in the near future to achieve even a token equality. No wonder, as far back as in 1956, a melodious duet of two extremely popular voices of Bollywood cautioned that it was difficult (mushkil) to live in (erstwhile) Bombay and that one would have to try hard to find a heart (dil) here.

114. Erstwhile Bombay, now Mumbai, is home to people coming from across the country in search of livelihood. This migration has not only added to the dense population making Mumbai the most populous Indian city, it has immensely burdened the housing sector so much so that 41.3% of the population live in slums. Any one taking an aerial view of Mumbai, also called the city of dreams, would be fascinated by the swanky sky-scrapers but disheartened by the structures at the foot of such sky-scrapers covered mostly by blue tarpaulin covers. These are the densely populated single storey or double storied slums accommodating almost a half of the population, which coexist as neighbours with real estate developments of extravagance. Despite these pronounced inequalities, people here seem to have accepted that this is the way life should go on. Mumbai happens to be the financial capital of this great nation and the extent of developments that one can see having taken place in Maharashtra, are significant. The annual budget of the Municipal Corporation of Greater Mumbai is more than several mid-sized States of India. It is, therefore, not unreasonable to assume that sufficient financial resources are at its disposal, and one would have expected the Government and the Corporation, whoever was at their helm, to adequately plan development by making appropriate budgetary provisions for affordable housing projects for the not so fortunate working class of people living in slums. Regrettably, instead of moving in the direction to have a planned and sustainable development, the successive Governments together with the Corporation seem to have unabashedly allowed mushrooming of slums at the instance of squatters by encouraging them not only to encroach more and more of public property but, simultaneously, by enacting laws to protect such unauthorized occupation. Enacting laws to further the interests of the weaker sections of the society is the obligation of every State in terms of Part IV of the Constitution and any move in that behalf ought to and must be welcomed. People living in slums do equally have a right of decent living conditions, which can be ensured by relocating them with proper housing facilities. However, a vicious nexus involving high profile personalities, bureaucrats, builders and slum lords have created a situation where public property is first encroached without resistance being provided by the law enforcing agency, followed by a declaration of slum gradually progressing to redevelopment by builders ostensibly for slum dwellers but really to further the interests of the “haves”. In the garb of legislation, in a novel manner, a fraction of the population including holders of public offices have continued to prosper by achieving their goals through impure means which are nothing short of betrayal of the trust that the people of this region have reposed in those responsible for an able governance. While it was the need of the hour to make housing projects a reality more effectively and with empathy, what has been laid bare is the apathy and indifference to cater to the needs of the hapless coupled with a complete lack of sensitivity. The reasons are not far to seek. Quite contrary to the ideals and values embodied in the Constitution which lay down the basic framework of the social and political structure of the country and sets out the objectives and goals to be pursued by the people in a common endeavor to secure happiness and welfare of every member of the society and despite taking oath to uphold the laws, actions of those in power and authority are now invariably driven by political motivations or other oblique considerations. No wonder, the casualty is the compassionate Constitution of ours.

115. I felt ‘curiouser, curiouser’ as the hearing of this matter progressed. Much of the reason therefor has been captured in the well thought of and well-crafted judgment of brother Justice Kulkarni, which has my full concurrence. The directions contained therein, ought to arouse the feelings of the civil as well as the municipal administration to take ameliorative measures to prevent recurring incidents of building collapses leading to untimely and unnecessary deaths.

116. Initially I decided to be reticent; however, in view of the importance of the matter, I introspected and considered it appropriate to pen a few words mainly by way of emphasis with the expectation that the civil as well as the municipal administration would implement the directions contained in the judgment of brother Justice Kulkarni. We part with the hope and trust that the respondents, remaining alive to the duty cast upon them by law, would not precipitate any further cause of action and thereby necessitate the intervention of this Court with more stringent directions.

115.   We, accordingly, reiterate that the hope of the citizens on remedying these issues is with the policymakers who would certainly rise to the constitutional expectations in catering to the future rights of the citizens. In our opinion, it is high time that the authorities are mindful to such realistic considerations as a law would recognize.

116.   In the above context, Dr. Sathe would be correct in placing reliance on the decision in Abdul Majid Vakil Ahmad Patvekari & Ors. vs. The Slum Rehabilitation Authority & Ors.  The case of the petitioner in the said proceedings was quite peculiar, which was to the effect that the petitioners, who were having their hutments on the Government land 20 2021 SCC OnLine Bom 13719 (slums), ought to be rehabilitated either on the same land or in the vicinity. A co-ordinate Bench of this Court negating such plea, observed that the slum dwellers cannot elevate their protection to such an extent that they need to be rehabilitated either on the same land, or in the vicinity. This was although in the context of encroachment and formation of the slums on Government land, principles in the present case would not be different and in fact, when it comes to private land, the owners constitutional rights guaranteed under Article 300A of the Constitution would get attracted and become more prominent in recognizing any rights of the slum dwellers. The observations of the Court are required to be noted which read thus:-

“9.     Having heard the learned counsel for the parties and having perused the record, at the outset, we may observe that the petitioners, who initially encroached on the Government land and who had remained on the same for sometime so as to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed or they be provided a permanent alternate accommodation within the vicinity. … …”

(emphasis supplied)

117.   Also, in a decision of the Division Bench of this Court [G. S. Patel, J. (as His Lordship then was) and Neela Gokhale, J.] in Moinuddin Pashamiya Shaikh Vs. Slum Rehabilitation Authority & Ors. dated 19/20th June, 2023 in a prescient and elaborate judgment authored by G.S. Patel, J., a similar view was taken by this Court that the slum dwellers would not have an absolute right to rehabilitate on the very land where they have encroached and entitled, under the Government policies or under the slum legislation, for a permanent alternate accommodation. The observations of the Court read thus:-

“20. In Abdul Majid Vakil Ahmad Patvekari & Ors v Slum Rehabilitation Authority & Ors, a Division Bench of this Court of Dipankar Datta CJ (as he then was) and GS Kulkarni J made these observations:

8.       On the other hand, learned counsel for the respondents supported their actions as assailed. It is their common submission that the petitioners, being encroachers on the Government land, only because of the beneficial policies of the State Government are required to be considered as protected slum dwellers for rehabilitation by providing of a permanent alternate accommodation at public cost. It is submitted that the petitioners cannot assert any right to remain on the same plot of land and in fact they ought to be content with their rehabilitation, being made at Hadapsar and Viman Nagar, which are also areas within the Pune Municipal Corporation limits. It is their contention that the petitioners are causing unnecessary obstruction in the execution of the public project in the absence of any legal right to remain on the land in question. It is submitted that this petition is also wholly untenable, as for the same cause the petitioner-Society has already approached this Court and the petition is pending. It is, therefore, submitted that this petition apart from not being bona fide is an abuse of the process of law, which deserves to be dismissed with cost.

9.       Having heard the learned counsel for the parties and having perused the record, at the outset, we may observe that the petitioners, who initially encroached on the Government land and who had remained on the same for sometime so as to fall within the beneficial policy of the State Government of being protected slum dwellers, cannot elevate their protection to such an extent that such slum dwellers have to be rehabilitated either on the same land, if any remaining after the project work is completed or they be provided a permanent alternate accommodation within the vicinity. In our clear opinion, any encroachment on public land at the threshold ought not to be tolerated and prompt action is required to be taken to remove such encroachment, more particularly when those who are custodians of the public land are well aware that encroachments for long periods will clothe the encroachers with rights to seek rehabilitation at public costs under the prevalent Government policies. It is not new that valuable Government land on account of the negligent approach of the officers in charge by not protecting such lands from encroachment have stood extinguished from the Government’s holding, causing a serious cascading effect, namely, that whenever land is required for any public purpose, the Government is required to acquire the same from private holdings, causing an unwarranted burden on the public exchequer and a sheer waste of the tax payers money. This for the reason that the Government despite its mighty machinery did not protect its valuable land and permitted to be encroached to be developed by the slum dwellers and their developer, with the Government nowhere in the picture. Such inaction, in our opinion, amounts to grossest violation of the public trust doctrine as a result of the patent abuse of the powers vested in such Government machinery in not protecting public property. We also have a grave doubt about the policy of the State Government which rewards the encroachers of the public land by a free of cost accommodation. In our opinion, such policies qua the Government land not only violate the ‘principles of equality’ but certainly fall foul of the doctrine of public trust. We wonder as to whether at any point of time an audit in regard to the encroached Government land or lands belonging to public authorities in the State of Maharashtra was undertaken. As to how many such lands have vanished due to encroachment and as to what steps have been taken to preserve such lands are questions which need to be answered to “we the people”, and accountability fixed for negligence in this regard. We say so, as there can be no two opinions that even land for important public institutions and other government utilities is not available, which certainly has adversely affected the very functioning of such institutions in a democratic set up. We hope that the Government awakens on such issues before it is too late and restores all the encroached Government lands for the benefit of public and strictly to be used for public purposes. This would certainly require a genuine political will and consciousness towards larger public benefit.

10.     The petitioners occupying Government land cannot take such an adamant stand as canvassed by them, when they are occupying Government land. Mere rights of rehabilitation cannot be recognized to be equivalent to a right of ownership or as if it is some compensation being offered to the slum dwellers for their encroachment and occupation of Government land. This is neither the intention nor the object even of the slum legislation and slum policies of the State Government. The insistence of the petitioners if accepted and that too in the context of the ‘State’ undertaking such public projects, it would be impossible to plan any such project using the Government land for the benefit of the public at large.

(emphasis added)

21. In High Court on its own motion (in the matter of Jilani Building at Bhiwandi) v Bhiwandi Nizampur Municipal Corporation & Ors, the same Division Bench said:

7. In the above paragraphs, we have noted our previous directions only to point out the anxiousness of the Court on the burning issues, with the sole focus of saving human lives so as to bring about a regime of respectable and dependable living in the city by having lawful and authorized structures, only to realize that, for the concerned law enforcing agencies everything mattered, except the mandate of law and the Court's orders. We are seriously concerned about such state of affairs. The common impression that is being created is that municipal officers or those who are concerned with implementing the municipal laws, function on a premise that for such matters, they are, law unto themselves, and the regime of “the rule of law” as set down by the Constitution and the laws, and the binding effect of the Court orders hardly mattered to them, needs to be completely wiped out. Any power vested with such authorities is coupled with a binding duty towards the society at large. We may observe that the municipal authorities cannot be pawns at the hands of land mafia, elected representatives and their own Corporators who appear to be totally disinterested in taking action against growing slums which is apparent, considering the large number of slums in the city. In fact, there is a clear impression that their action has encouraged slums and encroachments on public lands, obviously such inaction is for extraneous reasons. As far as the civic administration is concerned, in our opinion, primacy has to be given to the strictest implementation of the municipal laws, so as to prevent unauthorized and illegal constructions, prevent land grabbing by slum mafia, protecting government land and land belonging to statutory bodies. Also there is a need to do away with such policies which confer a premium illegality in favour of the encroachers, by granting them a windfall of State largesse, namely, a gift of valuable government land in the form of tenements on Government lands wherever situated. This is nothing but legalizing encroachments on prime public lands, in a manner nullifying the “public trust doctrine” and catering to private gains in the teeth of the well established Constitutional requirements while dealing with State largesse. By such mechanism, valuable public lands are gone forever. Given the financial burden on the public exchequer it is impossible for the government to acquire such prime land for any public requirement except at an unimaginable burden on the public exchequer. If such land acquisition cannot be achieved, in that case, is it not the duty of the State to save these lands from being thrown to the encroachers and private gains? Is it necessary that the encroachers are rehabilitated on the same land, when others who want to purchase a small dwelling unit are required to go miles away from such prime places, where encroachments on public land happen with impunity? There cannot be such an imbalance in the societal position in which the citizens are placed when Article 14 of the Constitution stares at the State. Merely because the slums turn into potential ‘vote banks’ such policy of rehabilitation on hypothetical cut off dates is being implemented under the garb of slum rehabilitation. This, in our opinion, is a mockery of the public trust doctrine. We were constrained to make these observations, as not only these larger issues stare at us in plethora of litigations reaching the Courts, but also for the reason that the building collapse with which we are concerned has taken place in a purported rehabilitation and/or a slum area.

(emphasis added)

22. We cited Jilani Building in our order of 17th April 2023 in Sapphire Enterprises & Ors v State of Maharashtra & Ors. As a bench of coordinate strength, we are bound by the ratio in both Patvekari and Jilani Building; but we go further, lest it be argued that the ‘observations’ in Patvekari and Jilani Building are not binding, and we emphatically re-affirm those observations. We adopt them as our own. It is our understanding that these are not stray observations in passing but set out the correct position in law and under the Constitution.

23.     And we go further. We take it as firmly settled that the right to shelter is part of the right to life.4 But there is no fundamental right to trespass. There is no fundamental right to squat. There is no fundamental right under the Constitution to rehabilitation at the very site of trespass or squatting. Both decisions cited commend the need for the statute — the Slum Act — to revisit this, and point out that it has no basis at all under the Constitution. Rather, it is against fundamental Constitutional precepts. Equally importantly, while the State may have an obligation to provide shelter, it has no Constitutional obligation to provide a marketable asset to anyone; and most emphatically not to someone whose initial entry on the land is illegal and unlawful. And yet this is precisely what the existing slum rehabilitation policy contemplates and promises. We are forced to ask, what is this if not the distribution of state largesse? One that comes at a very real public cost? Public lands for common public good are rendered unavailable. Every slum dweller is now confident in the assurance that the State will give him not just shelter but a high value marketable peace of real estate entirely free of cost.”

(emphasis supplied)

118.   If this be the position, then certainly, the slum dwellers merely by forming a society cannot assert that their rights are higher than the rights of the owners of the land and as successive Division Benches of this Court has held that the rights of the slum dwellers cannot be elevated (as if they are the owners of the property), so as to control the rights of the owners of the land under the garb of rehabilitation and through the resources of a developer, foist/dictate compulsory acquisition of land against the owner. The acquisition of the land for rehabilitation of slum dwellers can also never be on a pedestal and/or of a status of an acquisition of the land for public purposes in relation to public project to be undertaken by the in exercise of its powers of eminent domain. This for two reasons firstly , it is a private group of persons (slum developers) who would be the beneficiary of such land acquisition and the second beneficiary would be the developer who would reap bonanza of a huge Floor Space Index (FSI) in undertaking construction of commercial / saleable premises. Thus, the only beneficiaries of such acquisition of private persons, the Government would spend a meager amount of compensation to be paid as per Section 17 of the Slum Act. Despite this clear position, quite unfortunately, the experience in relation to acquisition under the Slum Act is quite different. It is completely misunderstood, misapplied, misinterpreted or abused by the authorities; this considering the proliferation of litigation in this regard, concerning private lands as encroached, and what is happening to public lands is a mystery which can never be resolved.

119.   It also cannot be overlooked that the acquisition of private land under the Slum Act has a large element of discretion being made available to the CEO, SRA as also to the State Government, object of which as stated herein above, is not of some acquisition for a public purpose, much less of a monumental nature, but for a private purpose that is rehabilitation of a limited number of slum dwellers accompanied with a private benefit which the developer would reap. The nature of the compulsory acquisition under the Slum Act, hence, is not to achieve a public purpose but purely private. Thus, the rudimentary principles on which a decision to acquire land for a public purpose are premised, is certainly not the consideration when it comes to acquisition of private land under the Slum Act. We may observe that the method of acquisition under the Slum Act is also quite draconian in as much as after the objections are raised by the person interested against the acquisition, it is completely the discretion of the competent authority (CEO, SRA) to inform the Government of the inclination towards acquisition and the Government forming an opinion that the land is required to be acquired and accordingly the land would be acquired by publishing a notice to that effect in the Official Gazette. Further, it is interesting to note as to what is the compensation being paid to the owner of the land when the land is acquired under Section 14. Section 17 of the Slum Act provides for compensation. Section 17 reads thus:-

“17. Basis for determination of compensation

(1) Where any land is acquired and vested in the State Government under this Chapter, the State Government shall pay for such acquisition compensation, the amount of which the determined in accordance with the provisions of this section.

(2) Where the amount of compensation-has been determined by agreement between [the State Government or as the case may be, the Collector] and the person to be compensated, it shall be determined in accordance with such agreement.

(3) Where no such agreement can be reached, the amount payable as compensation in respect of any land acquired shall be an amount equal to sixty times the net average monthly income actually derived from such and during the period of the five consecutive years immediately preceding the date of publication of the notice referred to in section 14.

(4) The net average monthly income referred to in sub-section (3) shall be calculated in the manner and in accordance with the principles set out in the First Schedule.

(5) The Competent Authority shall, after holding an enquiry in the prescribed manner, determine in accordance with the provisions of sub-section (4) the net average monthly income actually derived from the land, and publish a notice in a conspicuous place on the land and serve it in the manner provided in section 36 and calling upon the owner of the land and every person interested therein the intimate to it, before a date specified in the notice, whether such owner or person agrees to the amount so determined and if he does not so agree, what, amount the claims to be the not average monthly income actually derived from the land.

(6) Any person who does not agree to the amount of the net average monthly income determined by the Competent Authority under sub-section (5), and claims a sum in excess of that amount may prefer an appeal to the Tribunal within thirty days from the date specified in the notice referred to in that subsection.

(7) On appeal, the Tribunal shall, after hearing the appellant, determine the net average monthly income and its determination shall be final and shall not be questioned in any court of law.

(8) Where there is any building on the land in respect of which the net average monthly income has been determined, no separate compensation shall be paid in respect of such building: Provided that, where the owner of the land and the owner of the building on such land are different, the Competent Authority shall apportion the amount of compensation between the owner of the land and the owner of the building in the same proportion as the market price of the land bears to the market price of the building on the date of the acquisition.”

(emphasis supplied)

120.   It is clearly seen that the provisions of Section 17 of the Slum Act provide for an incomprehensibly meager compensation to be paid to the owner of the land as clear from the plain reading of sub-sections (2) and (3) of Section 17. Such disparity in payment of compensation is in stark deviation from any compensation being paid under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “the 2013 Act”). Although the 2013 Act was brought into force, there is no amendment to the provisions of Section 17 of the Slum Act.

121.   Thus, a conclusion can be reached that the process of acquisition of private land under the Slum Act is quite draconian with minimal say to the owners of the land coupled with enormous discretion conferred on the CEO, SRA, leaving an enormous scope and window, for large scale arbitrariness and illegality. Considering such parameters, there is an onerous obligation on the State Government not to have a mechanical approach in processing proposals from the CEO SRA and to very minutely examine each and every proposal and reach to a subjective satisfaction for reasons to be recorded in writing as to whether the proposal for acquisition as being put up by the CEO, SRA is fair, reasonable and non-arbitrary. In the present case, valuable land of the petitioner situated at Bandra is being acquired for merely 35 slum dwellers. It is quite astonishing as to why in such a situation, the SRA would not grant an opportunity to the petitioner to undertake redevelopment of its own land and rehabilitate the slum dwellers and in fact, resort to a compulsory acquisition of the petitioner’s land under Section 14 of the Slum Act.

122.   In our opinion, the present case demonstrates a patent illegality on the part of the Competent Authority (CEO-SRA) to reject the objections of the petitioner merely on the ground that no proposal was forwarded within 120 days of the notification, which is factually not correct as discussed hereinabove. In our opinion, the acquisition in the present case is totally unwarranted. The decision of the SRA, as hurriedly taken, hence, is patently illegal.

123.   Insofar as the contentions as urged on behalf of the SRA are concerned, it is nothing but supporting the decision which is on the singular ground that the petitioner's proposal is beyond 120 days as provided under Section 13(1) of the Slum Act. The contention is misconceived as observed by us, inasmuch as, the petitioner was never granted an opportunity of hearing and put to a notice that the petitioner would be required to submit a proposal after declaration of land as a slum rehabilitation area. In fact, the petitioner by his application dated 04 May, 2021, had applied to the CEO-SRA to undertake redevelopment exercising its preferential rights. Thus, once the petitioner's inclination to redevelop its land and ameliorate the slums was clear on the record, in such event certainly an opportunity was required to be given to the petitioner by issuance of a notice calling upon the petitioner to submit a redevelopment proposal within 120 days of such notice. Thus, without being put to such notice, it would be arbitrary for the petitioner to suffer the hammer of compulsory acquisition of its land. Thus, the contentions, as urged on behalf of the State Government in the reply affidavit as also argued before us by Ms. Kantharia, in no manner would justify the impugned decision of the CEO-SRA.

124.   Now coming to the decisions as cited on behalf of the respondents. Reliance is placed on behalf of the developer on the decisions of this Court in Awdesh Vasistha Tiwari & Ors. (supra) and Atesham Ahmed Khan & Ors. (supra). As noted above, the reliance on such decision is not well founded. These are not the decisions wherein an issue of preferential right was the subject matter of consideration before the Court. In the present case, the facts are in regard to the steps in regard to compulsory acquisition of the petitioner's land being resorted which was not the subject matter in such case. In such decisions, the Court was concerned with rival claims for development of slums by two different societies and the developers appointed by such societies. It is in these circumstances, what should be the approach of the Slum Authority in considering as to which proposal is required to be considered to be valid proposal, was the subject matter of the decision. It is in such context, the Court has made observations as to what would be a complete proposal being made for redevelopment. This is certainly not the issue before us in the present proceedings.

125.   In Veekaylal Investment Company Pvt. Ltd. Vs. State of Maharashtra & Ors. (supra) the challenge before the Court was to the notification dated 16 March 2017, issued under Section 14(1) of the Slum Act, acquiring the land belonging to the petitioner. There was also a challenge to the notice dated 21 July 2017, issued under Section 17(1) of the Slum Act, to determine the compensation payable for such acquisition. The slum dwellers residing on the property in question had formed a cooperative housing society as also appointed the petitioner therein as a developer, by executing a development agreement. Based on such development agreement, the petitioner submitted a slum redevelopment scheme with the Municipal Corporation for Greater Mumbai on 15 October 1996. There were large number of slum dwellers. The Deputy Collector prepared a list of eligible and non-eligible slum dwellers on 17 March 1997 and forwarded the same to the Slum Rehabilitation Authority. Also, in August 2009, the Executive Engineer, SRA had called a General Body Meeting of the society of slum dwellers for change of developer. The appointment of the petitioner as developer was terminated and one M/s. Shree Sai was appointed as a new developer. On such backdrop, on 9 September 2011, the society made an application to the Competent Authority for acquisition of the land. The Deputy Collector concerned with the acquisition of the land had heard the petitioner on its objection and rejected the same on 7 January 2012. On 16 August 2012 the Deputy Collector submitted a report to the Collector requesting acquisition of the land. The society again held a General Body Meeting on 16 June 2012 and this time terminated the appointment of M/s. Shree Sai as developer and appointed another developer M/s.Falsa Corporation. On 3 October 2012, the Collector issued a notice under Section 14(1) of the Slum Act. A public notice was issued in the newspapers on 8 October 2012 calling for suggestions and objections to the proposed acquisition. The petitioner had raised its objection dated 6 November 2012. On 22 January 2013, the petitioner filed written objections. The CEO SRA by an order dated 28 October 2013 exercising power under Section 13(2) of the Slum Act terminated the appointment of the developer. The petitioner filed an appeal against the said decision before the High Power Committee, such appeal was dismissed by the Committee by an order dated 16 February 2019. The petitioner assailed such order by filing writ petition before this Court. Also the removed developer filed a companion writ petition. Both the writ petitions were dismissed by the Court by a judgment dated 22 April 2019. It is on such backdrop, in the said case the acquisition proceedings commenced and the CEO-SRA submitted a report on 25 November 2013 and a notification dated 26 August 2015 was published in the Official Gazette declaring the land in question as a slum rehabilitation area under Section 3C of the Slum Act. Thereafter, a notification under Section 14(1) of the Slum Act was issued on 16 March 2017 acquiring the land in question. This was followed by a notice dated 21 July 2017 issued under Section 17(1) of the Slum Act for determining the compensation payable for such acquisition. On 9 August 2018 the SRA had issued a letter in favour of Ekta Falsa Realty LLP accepting the proposal for redevelopment. The petitioner, on the other hand, also filed a complaint before the Assistant Registrar contending that the society of slum dwellers did not have requisite majority of the slum dwellers, which was rejected by the Assistant Registrar by an order dated 7 March 2019. On 4 January 2019, the petitioner filed an application before the CEO, SRA challenging the proposal submitted by the developer – M/s. Ekta Falsa Realty LLP which also came to be dismissed by an order dated 1 Page 163 of 180 ------------------------- 11 June, 2024 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 25/06/2024 13:28:38 ::: wp 1212-22=final.odt August 2019. Such order was challenged before this Court in a writ petition which was also dismissed by this Court by an order dated 13 August 2019. It is in these circumstances, with earlier two writ petitions being dismissed by this Court, the petitioner therein approached this Court. The petitioner raised a contention that the CEO-SRA had no jurisdiction to recommend the acquisition of land in question before issuance of notification under Section 3C(1) of the Slum Act, as also inter alia contending that as the petitioner was the owner of the land, the petitioner has first right to develop the land and it is in such context, reliance was placed on the decision of this Court in Indian Cork Mills Pvt. Ltd. (supra). It is in the context of failure of petitioner therein to earlier succeed in its writ petition before the High Court, the Court observed that the petitioner had lost all rights to develop the property in question and it is in such context, the Court referring to the decision of this Court in Indian Cork Mills Pvt. Ltd. (supra) made the following observations:

“20. These developments would thus show that the petitioner has lost all rights to develop the property in question. We are conscious of the decision of this Court in the case of India Cork Mills Pvt. Ltd. (supra) in which the observations of the Division Bench in the case of Anil Gulabdas Shah v. State of Maharashtra 3 were noted with approval that the owner would have the preferential right under section 13(1) of the Slum Areas Act to undertake redevelopment of the slum rehabilitation area and the acquisition by parties without recognising such rights will be illegal. In the present case, the petitioner not having been able to develop the property and his engagement as a developer having been terminated by SRA, which the petitioner has unsuccessfully challenged, the petitioner can no longer press the claim of preferential right to develop the property.

…. … .. .. . .

33. In light of such facts and the statutory provisions, the contentions of the petitioner are required to be tested. Two main limbs of the petitioner’s contentions were that the procedure for acquisition of the land was defective and that the acquisition of the land defeats the petitioner’s first right to develop. We have already held that the petitioner had squandered its rights to development on account of long delay without any worthwhile steps being taken for development pursuant to which the appointment of the petitioner as a developer came to be terminated by the CEO, SRA under section 13(2) of the Slum Areas Act which order has been upheld by this Court. The later objection of the petitioner, therefore, must fail.”

126.   In the said decision, the Court also noticed the difference between the provisions of Section 14 as falling under Chapter V as also Section 14 as it would stand as falling under Section 3D of the Slum Act and thereby referring to the decision of the Supreme Court in Murlidhar Tekchand Gandhi & Ors. vs. State of Maharahstra & Ors. 21 which was on Section 14 as it stood outside Section 3D of the Slum Act, the Court observed that Section 14 was held to be independent, under which the area is acquired by the State subject to the hearing of the objections pursuant to the notice and a decision has to be taken thereafter. It is in the facts of the case, the Court falling under chapter V observed that when there were overwhelming facts on record that justify proceedings to further the 21 Civil Appeal No.11077 of 2017 order dated 29.8.2017 acquisition of the land so that the stalled project of rehabilitation of the slum dwellers can be proceeded. The relevant observations in that regard can be noted which read thus:-

“35. … … .. .. .. . . . . . . .. . When overwhelming facts on record justify proceedings further with the acquisition of the land so that the stalled project of rehabilitation of the slum dwellers can proceed further, we would not interfere with the impugned order on such technical ground. One cannot lose sight of the fact steps were initiated for slum clearance and rehabilitation wayback in the year 1996. After over 20 years, the situation has remained the same and in all probabilities, ground realities would have worsened.”

127.   Thus, the decision of the Division Bench in Veekaylal Investment Company Pvt. Ltd. (supra) would clearly indicate that the facts of the said case were completely different. On earlier two occasions, writ petitions filed before this Court were dismissed which were aimed at an attempt to undertake redevelopment by the petitioner therein either in the capacity as owner or developer and it is in such context the Court had negated the claim of the petitioner on the basis of a preferential right. However, it is seen that the Court has not held as a concrete proposition in law that the preferential rights as conferred on the land owners in a given situation ceases to operate. This for the reason that the petitioner in the said case had exhausted its preferential right and the same had attained finality in view of the writ petition as filed by the petitioner being dismissed by the Division Bench as observed in paragraph 19 of the said decision.

128.   In Nusli N. Wadia Vs. The State of Maharashtra & Ors. (supra), although there was a challenge to the notification issued by the State Government acquiring the petitioner's land and the subsequent award declaring compensation to be paid to the petitioner being the subject matter of challenge before the Court. The Court observed that no interference would be called for on the writ petition, inasmuch as, the petitioner had not challenged the notification dated 26 August, 2015 issued under Section 3C(1) of the Slum Act, declaring the said property as slum rehabilitation area, by taking recourse to a remedy of filing an appeal under the provisions of the Slum Act. Insofar as the decision of the Division Bench in Indian Cork Mills Pvt. Ltd. Vs. State of Maharashtra (supra) is concerned, the Court observed that it would not have application in the facts of the present case. Moreover, as observed by us, the decision in Indian Cork Mills Pvt. Ltd. (supra) is squarely applicable in the facts of the present case. Thus, the facts in such decision are in complete variance with the facts of the present case. Thus, reliance on the decision in Nusli N. Wadia’s case would not assist the respondents.

129.   Insofar as the decision in Deena Pramod Baldota Vs. State of Maharashtra (supra) is concerned, we are in agreement with the submissions as advanced on behalf of the petitioner that this decision does not specifically deal with the mandate of Section 14 which itself provides that a notice prior to the acquisition of land is required to be given as set out in proviso to Section 14 and only after considering the objections against acquisition, further steps can be taken to make recommendation to the State Government by the competent authority in regard to acquisition of land. We may observe that hence the said decision would be required to be read in the context of the facts which were before the Court.

130.   We may also observe that the position in law as recognised in Indian Cork Mills Pvt. Ltd. Vs. State of Maharashtra (supra), which is also recognized in the other judgments as noted by us hereinabove, as binding on this Court, is to the following effect:

i.        A combined reading of the various provisions as falling under Chapter-I-A as incorporated by the Amendment Act No.4 of 1996 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.

ii.       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 such area do not come forward, within a reasonable time (now 120 days by virtue of amendment by Maharashtra Act No.XXVIII of 2018) with a scheme for redevelopment 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.

iii.      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 (subclause (e) of Section 3B(4)). iv. Once the land is declared as a slum rehabilitation area, the statutory scheme/provisions as contained in Chapter I-A recognizes the participation of the owners/landholders and occupants in the redevelopment of such land. v. Once such a right is 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.

vi.      When the provision uses the word 'do not come forward within a reasonable time' (by virtue of Amending Act No.XXVIII of 2018, now 120 days) 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. For this, the SRA is required to put the land owner to ‘a notice’, that a redevelopment scheme being not submitted by the land owners, landholders or occupants within such prescribed period would be a circumstance which would be taken against them to acquire the land.

vii.     Such notice by the SRA to the owner of the land is imperative failing which, there is no reason for such persons to be aware of such time lines, considering the plain reading of section 14(1) of the Slum Act and the fact that the non-submission of the scheme would be the primary reason for the land to be acquired even when there is a complete willingness of such persons to undertake redevelopment.

viii.    The word “landholder” as used in Section 13(1) would include within its meaning “the owner of the land” when the words “landholder and occupant” are used.

ix.      A preferential right for redevelopment of the land under slums is vested with the owners/ landholders and/or occupants in view of a conditional power/authority created with the SRA to undertake redevelopment of the slum rehabilitation area in a twofold manner, firstly by exercising power under Section 13 (1) and (2) 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 an 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. From the legislative scheme of the amended provisions, it is clearly inferred that the rights so conferred under such provisions on the owner/landholder/occupant cannot be usurped directly by operating the acquisition machinery, simply because such power exists on the statute book.

x.       The exercise of such power within the scheme of Chapter I-A is required to be resorted by due adherence to the provisions as contained therein, which have created and recognized the legitimate rights in the owners, landholders and occupants to undertake redevelopment.

xi.      The power to acquire land is also required to be exercised in a fair manner and certainly in the context of the 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.

xii.     While considering the action of acquisition of land under the powers as conferred on the State government under Section 14 of the Slum Act 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 the said Chapter of the Slum Act.  

Xiii.   The 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 made to it by the competent authority, that a situation has arisen that it is incumbent on 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 owner together with the report to the State Government.

xiv.    The State Government considering the "report", and the "objections" if any, is required to pass 'such order' as it deems fit.

xv.     The proviso of Section 14 assumes significance as 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 to objectively take a decision and pass appropriate order. Section 14(1) read with the proviso is akin to the provisions of Section 5A of the earlier 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 so as to 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).

xvi.    Considering this statutory scheme, the decision of the Competent Authority or of the State Government cannot be oblivious 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.

xvii.   The acquisition of the land under the Slum 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). xviii. 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".

xix.    In such 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 legislative scheme and its mandate.

xx.     As seen from the provisions of Chapter I-A, it cannot be a statutory requirement that in every case or in relation to a deficit in discharge of obligations of redevelopment by the owners/landholders or occupants of the slum areas or some noncompliance 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 to the SRA under the Slum Act so as to bring about a redevelopment.

xxi.    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 empowers the SRA to develop the land by entrusting it to any agency recognized by it, de hors such statutory position, 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 of acquisition with the SRA.

xxii.   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 of the Act, as falling under chapter I-A. The rights so created inter alia on the landowners and the obligation so conferred on the SRA under the provisions as falling in Chapter I-A 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 State Government 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.

xxiii.  A bonafide willingness on the part of the land owner/land holders or occupant to redevelop the land and for such reason the land being 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 before a decision to acquire such land is taken. Thereafter, the State Government is required to pass an order on these objections.

xxiv.  Considering the scheme of the Act and more particularly Chapter I-A, it cannot be said that the SRA was powerless to call upon the petitioner to submit a scheme and to undertake immediate redevelopment of the land after it was declared as a 'slum rehabilitation area’.

xxv.   Also, an option is available to the Slum Rehabilitation Authority to invoke the provisions of Section 13(1) to redevelop the land on account of failure of the landowners/landholders/ occupants to undertake redevelopment within the prescribed period as 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 not different which is also to execute any work of improvement or to redevelop any such slum area.

xxvi.  In Anil Gulabdas Shah vs. State of Maharashtra (supra), the Court was concerned with the application of the amended provisions namely Chapter-I-A of the Act where the Court held that under Section 13 of the Slum Act as falling under the amended Chapter-I-A, the SRA is obliged to offer the suit land first to the petitioner or to the occupants, to come forward for redevelopment of the same and only on their failure, the land could be handed over to a third party. Although there can be no quarrel that the power to acquire the land under the Slum Act when it is declared as slum rehabilitation area, needs to be exercised only under Section 14 of the Slum Act, however, the acquisition of the land, which is declared as a slum rehabilitation area under Section 3C(1), cannot be undertaken defeating the petitioner’s rights conferred on the owner to undertake redevelopment under the provisions of Section 3B(4)(c) and (e) and section 13(1) of the Slum Act as held in Anil Gulabdas Shah vs. State of Maharashtra (supra). The legal position as held in Anil Gulabdas Shah (supra)22 was also accepted by the SRA by issuance of a circular dated 09 November, 2015 in which in paragraph 2, the SRA had clearly notified that under Section 13(1) 22* as confirmed and reiterated in Indian Cork Mills in respect of slums on private lands, the owner would have a primary right and to that effect earlier circular no.144 was modified.

Xxvii The submission that merely because the society of the slum dwellers has submitted a scheme prior to the scheme submitted by the owner, the preferential right in favour of the petitioner does not survive, is untenable. The Court held that such submission presupposes that there is a preferential right of the owner of the land to redevelop the said land. In taking decision under Section 14(1), there is a requirement of recording reasons which is an essential requirement in exercise of a quasi-judicial power by the authorities.. The Court ultimately held that considering the declaration of the said land as a slum rehabilitation area vide notification issued under Section 3C(1) of the Slum Act and the consistent assertion of the petitioner therein (land owner) to undertake redevelopment, an opportunity was required to be conferred on the petitioner to undertake redevelopment in consonance with the law laid down by the Division Bench in Anil’s case (supra) and the SRA's own circular dated 09 November, 2015 conferring preferential right on the land owners to undertake redevelopment as per Section 13(1) of the Act. The SRA cannot selectively act in deciding to acquire the land in question without calling upon the land owners at any point of time to undertake the development as being issued in many other cases.

xxviii.         Fairness in resorting to acquisition proceedings is a sine qua non and requirement of Article 14 of the Constitution.

Xxix. The Court ultimately held that the petitioner therein as a owner of the land had 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 Slum Act. The Court was in complete agreement with the view taken by the Division Bench in the case of Anil Gulabdas Shah (supra) which stands as good law.

xxx.   The authorities having failed to recognize the rights of the owner of the land, the acquisition of the land under Section 14(1) of the Slum Act is rendered illegal and void ab initio.

131.   The above discussion would lead us to answer the questions as framed by us in paragraph 74 in holding that the impugned order dated 29 March 2022 passed by the CEO-SRA rejecting the petitioner’s objections against the acquisition of the petitioner’s land under the provisions of Section 14(1) of the Slum Act, is illegal and invalid. We further hold that it was not open for the CEO-SRA to refuse to grant an opportunity to the petitioner to undertake redevelopment in the petitioner’s legal capacity as the owner of the land.

132.   The petition is, accordingly, required to be allowed, by the following order:-

ORDER

i.        The impugned notice dated 29 October 2021 issued under Section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance, And Redevelopment) Act, 1971 and the impugned order dated 29 March, 2022 passed thereon by the Chief Executive Officer, Slum Rehabilitation Authority, is quashed and set aside.

ii.       The Slum Rehabilitation Authority is directed to recognize the preferential rights of the petitioner to undertake redevelopment of its land bearing CTS No. B-960 admeasuring 1596.40 sq. meters. In this regard a redevelopment proposal as permissible in law, be submitted by the petitioner’s Architect to the Slum Rehabilitation Authority within a period of eight weeks from today, which thereafter be considered by the Slum Rehabilitation Authority in accordance with law within a period of six weeks after its submission, so that the development of the slums on the petitioner's land can be carried out as expeditiously as possible.

iii.      Rule is made absolute in the aforesaid terms.

iv.      Parties shall bear their own cost.