1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.927 OF 2010 Subodh Flour Mill, Mumbai and Ors. .. Petitioners Vs. Municipal Corporation of Greater Mumbai and Another .. Respondents Mr.A.V.Anturkar a/w Mrs.A.R.Awasthi for the petitioners Mrs.A.Y.Sakhare a/w Ms.Geeta Joglekar for B.M.C. Mr.B.H.Mehta, A.G.P. for the State Mr.Kiran Bagalia for M.M.R.D.A. CORAM : J. N. Patel, Acting C.J. & S.C.Dharmadhikari, J. DATE : May 3, 2010 ORAL JUDGMENT (PER J.N. PATEL, J). : 1. The petitioners have sought quashing and setting aside of the award bearing no.LAQ 773 in respect of property bearing CTS Nos. 208, 209, 210, 211 and 215 etc. of village Bandivali, situated at S.V. Road, Jogeshwari (West), Mumbai as illegal and bad in law. 2. It is the case of the petitioners that they are having commercial structures on the subject land which exist prior to the year 1962. According to the 2 petitioners, the said structures are authorized and the petitioners are occupying the land as tenants. The petitioners received a letter bearing no.KW/086/AEM/OD dt.03.04.2010 which is annexed as Exhibit C informing ‘ ’ the petitioners that respondent no.1 has undertaken the project of JVLR (Jogeshwari Vikhroli Link Road) and that the subject property has been acquired by respondent no.1 for constructing the bridge and that the structures of the petitioners which have been used for commercial purposes are affected within the R.O.B. (Rail Over Bridge) alignment and standing on the land belonging to M.C.G.M. 3. It is the case of the petitioners that prior to the receipt of the said letter, they were not aware that any award has been passed bearing no.LAQ-773 by respondent MCGM. Therefore, the petitioners collected the information and found that the intimation given in letter dt.03.04.2010 is factually incorrect. The structures of the petitioners are not standing on MCGM land but they are on the private land and the petitioners therein are the lawful tenants of the same and therefore, it is the case of the petitioners that the award is a nullity because the award is passed without giving any notice and any opportunity of being heard to the petitioners herein. 4. It is contended by the learned counsel for the petitioners that under the provisions of the Maharashtra Regional and Town Planning Act, 1966, for short M.R.T.P. Act, 1966 as well as under the provisions of the Land Acquisition Act, 1894, the persons who are occupying the property, as tenants 3 are the persons, who have interest in the property and, therefore, notice was necessary. As no such notice has been given to the petitioners herein, the entire acquisition was conducted without giving any opportunity of being heard and therefore, the award deserves to be declared as nullity, illegal and bad in law in so far as petitioners are concerned. 5. According to the petitioners, it is learnt that the Municipal Commissioner has passed an order dt.31.03.2010 wherein he has accorded approval to provide alternate accommodation to the affected eligible occupants under the MUTP Policy. 6. In the letter dt.3.4.10 (Exhibit C ), the petitioners are not given any specific ‘ ’ information about the alternate accommodation but according to the petitioners, it appears that respondent no.1 is going to give the alternate accommodation to the petitioners herein in Ajgaonkar plot at Jogeshwari (East). 7. It is the case of the petitioners that that plot earmarked for accommodation of the petitioners is shown in the development plan for hospital purposes and vide order issued u/s 37(1) of the MRTP Act, 1966, the State Government directed the Planning Authority viz. Respondent no.1 to modify the Development Plan to resettlement and rehabilitation of Project Affected Persons of MUTP-II and to allot the rehab tenements constructed under DCR 33(10) to the petitioners. 4 8. According to the petitioners, the subject property is not a slum property and that only eligible slum dwellers can be given the alternate accommodation in the rehab tenements. The petitioners cannot be compelled to go to the SRA Scheme. Therefore, the rehab tenements proposed for the petitioners is without any legal sanctity either under the provisions of Mumbai Municipal Corporation Act or under the provisions of Maharashtra Slum Act, 1971 or under MRTP Act 1966. The petitioners have also contended that PIL is pending in the court in respect of the directives dt.26.8.03 given by the State Government under section 37 of the MRTP Act and therefore, there is less likelihood of implementation of the rehab project and that the petitioners are likely to be removed from the site after demolishing their structures. Therefore, this court should quash and set aside the impugned notices to all the petitioners which is at Exhibit C dt.3.4.10. ‘ ’ 9. In the affidavit in reply filed on behalf of the respondents, it is not disputed that the petitioners are the tenants and carrying on commercial activities from the structures situated at the subject plot. It has been contended that CTS Nos.212 and 215 are abutting S.V.Road, Andheri (W) and that the MCGM has undertaken the project of JVLR at Jogeshwari (W) for construction of Road Over Bridge (ROB) and for the remaining work related JVLR it has been handed over by MMRDA to the respondent no.1 for execution. The respondents are required to complete the project by removing the structures of the petitioners and therefore, notices dt.3.4.2010 were issued to all the 5 PAPs directing them to submit the proofs of their occupancy within 7 days from the receipt of the said letters and that all the PAPs including the petitioners except petitioner no.1 have submitted documents for their respective premises and all the PAPs were held eligible for the alternate accommodations, residential as well as commercial. 10. It is also stated that the petitioners are from K/E Ward of the MCGM and that after issuing the letter dt.3.4.10, the Assistant Commissioner K/W Ward held the meeting in his Chamber with all the PAPs of K/W Ward on 8.4.2010 and offered the option of two plots for alternative accommodation i.e. Ajgaonkar plot and a plot near Mankhurd. It is stated that PAPs have refused to shift on the plot near Mankhurd but 37 out of 91 PAPs have been issued allotment letter to shift on Ajgaonkar plot and out of 37, 22 PAPs are handed over the keys and they are in the process of shifting on their respective allotted premises on the Ajgaonkar plot. It is further stated that another 12 PAPs are ready to shift but since the petitioners have filed this Writ Petition, they are not yet shifted. It is the case of the respondents that Smt.Shantabai G. Popat and Ors. were the owners of CTS No.212 (Pt.) and Shri Kirtikumar Parikh and Ors. were the owners of CTS No.215 (Pt.). These two plots of lands alongwith other properties are acquired by the MCGM under award bearing case no.LAQ-773 dated 15.01.2009 passed by the Special Land Acquisition Officer (SLAO) for the purpose of Road Over Bridge (ROB) and that the owners of the properties have received the monetary compensation and or the benefit of TDR / FSI has also been granted to 6 them as per their policy. 11. It is therefore, contended that the petitioners have not made out any case as the property came to be acquired after following due procedure and that in Writ Petition (L) No.893 of 2007, the owners have challenged the notice under sub sections (3) and (4) of section 9 of the Land Acquisition Act, 1893 and in the said petition, they have specifically submitted that they were not questioning the validity or legality of the acquisition proceedings and the notices issued to them u/s 9 of the said Act. The only grievance was that the rights should be settled by the respondents therein in terms of FSI/TDR. It is also contended that the tenants who are the petitioners in the petition do not have any right to challenge the award passed by the SLAO when the owners have not challenged the acquisition proceedings. 12. It is further contended that the SRA has issued IOA on 2.7.2003 and commencement certificate on 24.2.2004 inspite of the plans for resettlement and rehabilitation of PAPs from SRA for MUTP and the plot is not declared as a slum by the SRA. 13. It is the case of the respondents that the period of contract for the JVLR project is of two years and the same is going to expire on 16.03.2011 and that this is a public project and is a vital link between the Eastern Suburb and Western Suburbs of Greater Mumbai and substantial work of JVLR Project is already completed but only the work of Road Over Bridge is left 7 out having total contract cost of work of Rs.1,32,61,37,303/-. Therefore, completion of the entire project prior to 16.03.2011 is in the interest of public at large. Therefore, petition is devoid of any merits and deserves to be dismissed. 14. Mr.Anturkar, the learned counsel appearing for the petitioners contended that notification issued by the respondents for acquisition of the subject land leading to passing of the award under section 11 of the Land Acquisition Act, 1893 is vitiated for the very reason that no opportunity of hearing was given to the petitioners which is contrary to section 5A of the Land Acquisition Act, 1894. It is submitted that the respondents in order to deprive the petitioners of the opportunity of hearing, issued a notification under section 4(1) and section 17 of the Land Acquisition Act, 1894 and so also under section 6 and section 17 of the said Act by invoking urgency clause. 15. It is submitted that under section 17 of the Land Acquisition Act, 1894, specific powers conferred in case of urgency can only be exercised whenever the appropriate government or the Commissioner, so directs, the Collector and in the present case, the notification has been issued not by the Divisional Commissioner but other officer i.e. the Additional Commissioner and therefore, it was obligatory on the part of the respondents to have given notice to the petitioners under section 5(a) of the Land Acquisition Act, 1894 being parties interested in the matter. 8 16. Mr.Anturkar has placed reliance on the decision of the Supreme Court in the case of Devinder Singh and Others vs. State of Punjab and Others reported in (2008) 1 Supreme Court Cases 728 wherein it is stated that Land Acquisition Act is an expropriatory legislation, as is well known, must be strictly construed particularly when the properties of a citizen are being compulsorily acquired by a State in exercise of its power of eminent domain, the essential ingredients thereof, namely, existence of a public purpose and payment of compensation are principal requisites therefor. In the present case, the petitioners ought to have given notice and notification for urgency clause ought to have been issued by the person not less than the Additional Commissioner. 17. The learned counsel for the respondents submitted that the petitioners have no locus standi to challenge the award after it has been declared and they are sufficiently compensated by offering them alternative tenements. It is submitted that this being a time bound project and in larger public interest, the respondents were justified in invoking urgency clause and that the State has conferred power on the Additional Commissioner, Konkan Division to issue a notification invoking the urgency clause which came to be published in the Government Gazette on 31.08.06. Therefore, the petitioners are only trying to obstruct the execution of the project. It is also contended that the petition suffers from delay and latches and that the petitioners were well aware of the acquisition proceedings without which the work of the project 9 could not have been started and it is only at a stage when the landing for the ROB is required to be prepared, the petitioners are having their structures at the landing site for filing this petition. Therefore, the same deserves to be dismissed. 18. We have examined the case and find that the petitioners have no case. In so far as objection of the petitioners that they have not been heard under section 5A of the Land Acquisition Act is concerned, it is not disputed that notification for Land Acquisition was issued by invoking urgency clause as provided under section 17 of the Land Acquisition Act, 1894, and therefore, question of giving opportunity of hearing to the petitioners under section 5A of the Land Acquisition Act does not arise. 19. In so far as the contention raised by the petitioners that the notification has been issued under the signature of the Additional Commissioner who has no authority for issuing notification under section 4 r/w section 17 of the Land Acquisition Act, 1894, the same cannot be accepted as sub-section 3 of section 13 of the Maharashtra Land Revenue Code specifically empowers Additional Commissioner to exercise powers of the Commissioner. This issue is already covered by the decision of this court rendered in the case of Gulabrao Bablaji Ujjainkar and others vs. State of Maharashtra and others reported in AIR 1976 BOMBAY 363 wherein the court has held that once under section (3) of section 13 of the Maharashtra Land Revenue Code the powers of the Commissioner are conferred upon the Additional 10 Commissioner, then he exercises the powers of the Commissioner under Sections 4(1) and section 17 of the Land Acquisition Act as a Commissioner and not as an Additional Commissioner and, therefore, is a Commissioner ‘ ’ within the meaning of Section 4 and Section 17 of the Act. 20. It is well settled that after the award is passed under section 11 of the Land Acquisition Act or under M.R.T.P. Act, the same cannot be challenged in a Writ Petition for acquisition of land for public purpose. Challenge to the notification should not be normally entertained under Article 226 of the Constitution of India. In the present case, the petitioners have approached the court under Article 226 of the Constitution of India at the stage when they were given notice to shift to alternate accommodation provided under the scheme to project affected person feigning ignorance of acquisition proceedings and passing of the award which in fact and circumstances of the case cannot be accepted. The petitioners have no locus standi in the matter as the owners have already accepted the award and received compensation. The petitioners are trying to dig out a case on technical grounds raising various issues and contentions such as being deprived of opportunity of hearing u/s 5A of the Land Acquisition Act, 1894, competency of the office who issued notification u/s 4(1) r/w 17 and u/s 6 r/w 17 of the Land Acquisition Act. Admittedly, the land in question was acquired for public purpose as notified for JVLR project and petitioners are offered alternate tenement as project affected persons. 11 21. Therefore, we do not find any merits in the petition. The same is dismissed. After we dictated the order, the learned counsel for the petitioners submitted that the petitioners may be protected for a period of two weeks to enable them to challenge the said order. We therefore, direct the respondent Corporation not to implement the notice for eviction of the petitioners for a period of two weeks from the date of judgment/order. ACTING CHIEF JUSTICE S.C. DHARMADHIKARI, J