[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 1781 OF 2007 PETITION NO. 1781 OF 2007 PETITION NO. 1781 OF 2007 PRAVIN PRITAMA DAYAL CHOWDHARI ... PETITIONERS. AND ORS. VS. THE STATE OF MAHAASHTRA & OS. ... RESPONDENTS. MR. Y.M.MUCHHALA, SR. ADVOCATE WITH MS. HANSA I. ADVANI, MR. S.A.KHAN AND MR.JAVED PATEL ADVOCATE FOR THE PETITIONERS. MR. P.R.BORULKAR PP FOR THE RESPONDENT-STATE. MR. V.M.PARSHURAMANI, SR. COUNSEL FOR THE RESPONDENT NO.2. CORAM CORAM CORAM : S.B.MHASE AND A.A.SAYED, JJ. : S.B.MHASE AND A.A.SAYED, JJ. : S.B.MHASE AND A.A.SAYED, JJ. DATE DATE DATE : FEBRUARY 5, 2008. : FEBRUARY 5, 2008. : FEBRUARY 5, 2008. P.C. 1. Heard both sides. 2. The petitioners have approached this Court challenging the Notification, dated 12th October,1988, issued under Sub-Section 1 of Section 41 of the Maharashtra Housing and Area Development Act, 1976 (hereinafter referred to as "MHADA" ), whereby the petitioners were communicated that in view of the representation from the Prime Minister Grant Project / Maharashtra Housing Area Development Authority, it appeared to the Government of Maharashtra that in order to enable the authority to discharge its functions or to exercise its powers or to carry out its proposals [ 2 ] and plans set out in Part-I of the Schedule thereto, it was necessary that the lands with the buildings specified in Part-II thereof (hereinafter referred to as the said lands with buildings) should be acquired and that the Government had proposed to acquire the said lands with the buildings, if any, and, thereafter the petitioners were called upon to file objections to the said Notification. The petitioners are concerned with building No. 93/95/97, Umarkhadi, CS No. 1980, Khadi Road of Mandavi Division. In pursuance of this Notification, the acquisition was completed. The symbolic possession of the said lands with buildings was taken by the Government and thereafter it was handed over to the Authorities of MHADA. This exercise was completed by 13.10.1989. 3. It appears that the petitioners continued in occupation of their building. It appears that some time between 1991 to 1995, out of the Notification referred to above, the building at Item Nos. 4 & 5,namely, building No. 54, and building No. 56 were excluded from the scheme and persons in occupation of the said building were allowed to repair the said buildings. 4. Under these facts and circumstances, MHADA desired to develop the buildings and therefore desired to take physical possession of the building of the [ 3 ] petitioners. Out of the petitioner Nos. 1 to 15, the petitioner Nos. 1 and 2 are the owners and the petitioner Nos. 3 to 15 are the tenants. When actually the respondent Nos. 3 to 15 were tried to be evicted by the respondent- MHADA Authorities, it appears that the petitioners herein have filed Short Cause Suit No. 1838 of 2005 in the City Civil Court, Bombay and have taken out notice of motion therein bearing Notice of Motion No. 2360 of 2005. However, the said motion was rejected by the City Civil Court and, therefore, the Appeal from Order No. 233 of 2007 was filed. In the said Appeal from Order, the statement of the MHADA Authority was recorded on the basis of Section 51 of the MHADA Act and undertaking was given by the MHADA Authority that the transit accommodation as per the provisions of Section 51 will be given to the appellants therein as per the Scheme of the Act and, thus, in view of the assurance of the grant of transit accommodation to the petitioner Nos. 3 to 15, the tenancy rights of the petitioners were protected. Therefore, the petitioners Nos. 3 to 15 will get the transit accommodation from the MHADA when the Scheme would be finalised by constructing the building and after completion of the scheme, the petitioner Nos. 3 to 15 will be put in possession of their respective accommodations in accordance with the scheme of the MHADA. So far as the rights of the petitioner Nos. 3 to 15 are concerned, they are [ 4 ] already protected and they are not justified in expressing any grudge as against the redevelopment scheme which is proposed to be carried out under Section 51 of the MHADA Act. Therefore, their grievance in respect of the Notification issued under Section 41 and the procedure followed under Section 42 is unjustified. 5. The grievance of the petitioner Nos. 3 to 15 in respect of the procedure being not followed under Section 42, is also not tenable in law because the provision of Section 42 of the MHADA Act is subject to the provisions of Section 51 of the Act and, therefore, when the protection is available under Section 51 is given to the petitioner, the petitioners are not entitled to make any grievance in respect of the procedure under Section 42 of the Act. 6. Let us now come to the grievance of the petitioner Nos. 1 and 2. The Petitioner Nos.1 and 2 are the owners of the building and land, who were aware of the Notification having been issued in the year 1988 and the acquisition process has been finalised in the year 1989. Not only that but thereafter the possession has been taken over and the said possession has been delivered to MHADA. Though actual possession was not taken from the petitioners, the fact remains that the symbolic possession has been taken over by the State [ 5 ] Government. One more aspect requires to be considered that whenever the Notification under Sub-Section (1) of Section 41 has been issued, the land vests unto the State Government in view of the provisions of Sub-Section (3) of Section 41 of the Act. Therefore, Section 42 is only a formality for taking the possession of the lands and modality of taking over the symbolic possession when such a Notification is issued by the Government under Sub-Section (3) of Section 41 of the Act. 7. Under these circumstance, the challenge sought to be raised on behalf of the learned Counsel for the petitioners to the Notification of the year 1988 suffers on the grounds,namely, the Scheme of Development and in what manner the development has to be carried out is not reflected in the Notification and, therefore, the Notification is not in consonance with Section 42(3) of the Act. The second ground which is sought to be argued is that when the Scheme was modified subsequently deleting two buildings from the said Notification, the hearing was not given to the petitioners. 8. So far as the fist ground of challenge is concerned, the petitioners should have challenged the Notification in the year 1988 itself, however, the petitioners have accepted the said Notification, not [ 6 ] only that but also gave consent subsequently to acquisition of the land. [Mr. Muchhala, the learned Senior Counsel had disputed it but the fact remains that the land is acquired under the said Act.] It is because if the petitioners were not consenting parties, they should have approached the proper authorities or the Court by filing representations and/or objections and/or writ petition etc. in the year 1988 itself instead of surrendering the possession of the land and the building to the State Government, when the Notification and the Acquisition statutorily became final under Section 41 and 42 of the Act, long back in the year 1989. The petitioners,however, approached this Court for the first time to challenge the Notification in August, 2007. 9. Under the circumstances, for this inordinate delay and latches on the part of the petitions, for which no satisfactory explanation has come forward from the petitioners in the petition by incorporating separate paragraphs for the same, the petition suffers from delay and latches on the part of the petitioners. The learned Senior Counsel Mr. Muchhala, however, tried to raise this ground at 11th hour and attempted to explain the delay but we are not satisfied with [ 7 ] those explanations and we find that the delay of more than 17 years has not been properly explained in this petition and the petition suffers from delay and latches and, therefore we refrain to entertain the challenge to the Notification on these grounds relating to the two buildings, namely, Building No. 54 and 56, which scheme is modified. The scheme relating to each of the five building was individual and is different but the proposal of the scheme has been framed only under one Notification. Different schemes were not notified in respect of the different buildings and different lands. The attempt of the learned Counsel to impress upon us that the same is one scheme is not correct and if even though building No. 54 and 56 have been allowed to be repaired/ redeveloped by the respondent in the year 1995, at least at that time the petitioners should have moved the Competent Authority by raising objections or should have approached this Court by filing the writ petition. 10. One more ground has been raised by Mr. Muchhala, the Senior Counsel on behalf of the petitioners that when in the year 1995-96 when the MHADA has released/ deleted two buildings from the scheme, the purpose for which the land and the buildings were acquired has been changed. However, that ground was also available to the petitioners in [ 8 ] the year 1995-96 and at that time the petitioners should have approached this Court by way of writ petition. Therefore no explanation has come forth from the petitioner for the delay from 1995 to 2007 in respect of this ground. Therefore, we also reject the same ground and refuse to entertain the said ground. 11. The ultimate analysis is that the petition has been ultimately filed by the petitioners to protect the possession of the petitioners in the existing premises with an ulterior motive not to allow redevelopment and/or reconstruction of the said buildings when the fact of redevelopment has become statutorily unescapable in view of the provisions of Section 41, 42, 50 and 51 of the MHADA Act. 12. Under the circumstances, we refrain to entertain the petition. The petition is consequently dismissed. ..... [A.A.Sayed,J.] [A.A.Sayed,J.] [A.A.Sayed,J.] [S.B.Mhase,J.] [S.B.Mhase,J.] [S.B.Mhase,J.] [ 9 ] Due to change of hard disk by Mr. Guna, Computer Engineer, this entire file was lost and it is reproduced from dictation today i.e. on 13.2.2008. Some Orders which were lost were reproduced from dictation on 8 and 11th February. The orders pertain to Division Bench of Shri Justice S.B.Mhase and Shri Justice A.A.Sayed of 5th February, 2008. That directory was named as [ 5-2-2008 ] now for that new directory [5-2-08] is opened.