1 os-wp-974-99 & 1113-2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.974 OF 1999 Anil Gulabdas Shah ) R/232, Harish Villa, ) Juhu Church, Juhu ) Bombay-400 049 ) Now residing at 6-F, Dhan- ) Ratna,6th Floor, Bhardawadi, ) Andheri West, Bombay-58. ) ..PETITIONER Versus 1.State of Maharashtra ) through Government Pleader ) office, Bombay High Court, ) Bombay-400 023. ) 2.Slum Redevelopoment ) 2 os-wp-974-99 & 1113-2000 Authority, Mahada Building, ) 5th Floor, Bandra East, ) Bombay-50. ) 3.Competent Authority, ) Mahada Building, 5th Floor, ) Bandra East, Bombay-50. ) 4.Akruti City Ltd.,Akruti Trade) Centre, MIDC, Road No.7, ) Andheri East,Bombay-400 093) 5.Court Receiver, High Court, ) Bank of India Building, ) 2nd Floor, M.G. Road, ) Mumbai-400 023. ) ..RESPONDENTS WITH WRIT PETITION NO.1113 OF 2000 1.Anil Gulabdas Shah ) 2.Harish Gulabdas Shah ) 3.Nilam P. Baxi ) 3 os-wp-974-99 & 1113-2000 4.Varsha M. Daru ) 5.Smita S. Desai ) All having address at R/232, ) Harish Villa, Juhu, Bombay-400 049) ..PETITIONERS Versus 1.State of Maharashtra ) 2.Slum Re-Development Authroity ) MHADA Building, Bandra East, ) Bombay-51. ) 3.Competent Authority (ENRC) ) MHADA Building, Bandra East, ) Bombay-400 051. ) 4.M/s.Akruti City Ltd., ) Mukhyadhyapak Bhuwan, 2nd Floor) Sion West, Mumbai. ) ..RESPONDENTS Mr. A.G.Shah, petitioner in person. Mr. Jasbir Saluja, AGP for respondent Nos.1 & 3 in both the petitions. Mr. Arif Bookwala, Senior Counsel along with Mr. G.D. Utangale, Mr. B.V. Phadnis i/b. Utangale & Co., for respondent No.2-SRA in both the petitions. Mr.Aspi Chinoy, Senior Counsel with Mr. M.P.S.Rao, Senior Counsel i/by Naik Paranjpe & Co. for respondent no.4 in W.P. No. 974 of 1999. 4 os-wp-974-99 & 1113-2000 Mr. Sandeep Parekh a/w Mr. Ashok Paranjape and Mr. Saneet Shukla i/b.Naik Paranjape & Co., for respondent No.4 in W.P. No. 1113 of 2000. CORAM: B.H. MARLAPALLE & SMT. ROSHAN DALVI, JJ. RESERVED ON: AUGUST 17, 2010. PRONOUNCED ON: NOVEMBER 24, 2010. JUDGMENT (PER B. H. MARLAPALLE, J.) 1. Both these petitions filed under Article 226 of the Constitution raise a common challenge and, therefore, they have been heard together at all times. They came to be filed on or about 26th March, 1999 and 23rd February, 2000 respectively and the initial challenge was to the Notification dated 16th May, 1999 issued under Section 14(1) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 (for short “the Act”) and the Letter of Intent issued on 1st December, 1998 in favour of respondent No.4 which is a builder/developer company. By the Notification dated 16th May, 1998 issued by the State Government through its Housing and Special Assistance an area admeasuring 44330 sq. meters (more 5 os-wp-974-99 & 1113-2000 than 11 acres) located in Andheri East and popularly known as Saiwadi has been acquired purportedly to execute the “works of improvement” as envisaged under the Act. Whereas by the second impugned order dated 1st December, 1998 the Letter of Intent has been issued in favour of the respondent No.4 for the entire area of 44330 sq. meters acquired by the notification dated 6th July, 1998 and though initially the F.S.I. granted was 2.07, subsequently it has been increased to 2.5 and it has been the contention of the petitioner that in fact it was 2.7 which was the F.S.I. allowed in favour of the respondent No.4 on the entire land i.e. 44330 sq. meters and permissible under D.C.R. (33.10) as amended from time to time. The petitioner had also challenged the constitutional validity of Section 14(1) of the Act but during the course of arguments, the said challenge was given up. By the subsequent amendments, the petitioner has also challenged the order dated 17th August, 2008 passed by the Secretary, Housing and Special Assistance, Government of Maharashtra. In addition, the petitioner has also prayed for being allowed to carry on construction for rehabilitation on the suit property belonging to him. 6 os-wp-974-99 & 1113-2000 2. Writ Petition No.974 of 1999 is in respect of C.T.S. No. 449 (Old Survey No.33/5) of village Gundavli (Gaoligalli), Andheri East and Writ Petition No.1113 of 2000 is in respect of Plot C.T.S. No. 429 (Old Survey No.37/13) of the very same village. The area of C.T.S. No.449 is 1168.5 sq. meters whereas initially the area of C.T.S. No.429 is 1,064.3 sq. meters but it appears that on C.T.S. No. 429/1 to 18 some slum came up and they occupy an area of 401.05 sq. meters thus leaving behind the net area of C.T.S. No.429 at 662.8 sq. meters. There is no dispute that both the petitions together are in respect of the plot area of 1168.5 and 662.8 sq. meters which area is covered by both the impugned orders. It is the contention of the petitioner that the acquisition as per the Notification dated 6th July, 1998 is illegal, in violation of the principles of natural justice, contrary to the scheme of the Act and hence void ab initio on several grounds. The Letter of Intent dated 1st December 1998 issued in favour of the respondent No.4 is also alleged to be illegal, in breach of the mandatory requirements of the Act and against the State policy. It is further alleged that by both the impugned orders the petitioner’s right to develop the property as permissible under the Act has been taken 7 os-wp-974-99 & 1113-2000 away and without due notice to him and his other family members the suit property along with other big chunk of land has been handed over to the respondent No.4 surreptiously and in gross violation of the provisions of the Act. We make it clear that the challenge raised in these petitions with respect to the notification dated 6th July, 1998 as well as the Letter of Intent dated 1st December, 1998 is required to be confined only in respect of the suit property. We are also required to decide some other related issues which may be called public interest issues. 3. The respondents have opposed the petitions and the opposition is vigorous and determined. On behalf of the respondent No.1, Shri Nitish Thakur, Deputy Collector (Encroachment) and Competent Authority has filed reply on 15th November, 1999 and Shri Dilip Shinde, Deputy Secretary, Housing Department has filed another affidavit on or about 14th January, 2010 opposing the petitions. On behalf of the respondent Nos. 2 and 3, Shri Parmanand Nikumbh, Deputy Collector and Slum Rehabilitation Authority has filed affidavit in reply on 14th January, 2010 and Shri Prakash Kashinath Joshi, Desk Officer, Housing Department, has also 8 os-wp-974-99 & 1113-2000 filed affidavit dated 16th December, 2002. At the outset it was contended by the respondents that the petitioner has his ownership of 00.01% of the total scheme area and less than 8% of the suit plot area and, therefore, the challenge raised in these petitions is frivolous and on that ground alone (locus standi) the petitions ought to be dismissed. The petitioner, therefore, amended the petitions so as to dispel the misconception about locus standi as raised against him. Hence we deal with the said issue of locus standi at the threshold. 4. Locus standi of the petitioner: The suit land was originally in the ownership of Smt. Aditbai Balkishandas (great grant mother of the petitioner) and she had four sons by name (1) Manmohandas, (2) Bhaidas, (3) Mangaldas and (4) Samaldas. Manmohandas begot two sons I.e. Gansukhlal and Gulabdas, whereas Mangaldas begot four sons vis Krishnalal, Vasantlal, Dhirajlal and Jayantilal., Bhaidas died childless in 1945 and Samaldas, the 4th brother remained unmarried. On the demise of Bhaidas an order came to be passed on 24th May, 1947 called as Taluka Order No.RTSSR/II/16 and on the basis of the same Entry No.940 9 os-wp-974-99 & 1113-2000 was taken in the rights register on 20th February, 1950 about 1/3rd share of each three surviving brothers in the suit plots i.e. Survey No. 33/5 (C.T.S.No.449) and Survey No.37/95 (C.T.S. No.429). On 9th September, 1961 all the legal representatives of Mangaldas signed release deed in favour of Gulabdas thereby releasing their 1/3rd share over the suit property in his favour. Samaldas who remained unmarried also nominated Gulabdas as his L.R., and relinquished his 1/3rd share in the suit property in favour of Gulabdas. Thus Gulabdas got 2/3rd share of his uncles Mangaldas and Samaldas. The petitioner is the son of Gulabdas and he has a brother by name Harish, whereas Dhansukhlal has a son by name Mukesh. Thus 1/3rd share of Mansukhlal (grand father of the petitioner) could be shared equally between Dansukhal and Gulabdas and Gulabdas would get 1/6th share of the suit property. It is for these reasons that the petitioner in paragraph 16 (a) of the petition emphatically stated that his father’s share came to 83.34% of the suit property and that the remaining 16.66% share of his uncle’s branch remained with Mukesh Dhansukhlal Shah, who has authorized the petitioner to raise the challenge as set out in the petition. Thus the petitioner has claimed his father’s share in the suit plot 83.34% and he has been authorized by his 10 os-wp-974-99 & 1113-2000 cousin who owns remaining 16.66% share. This explanation to deal with the issue of locus standi and as put up by the petitioner has not been challenged by bringing on record any contemporaneous documents to the contrary. We, therefore, reject the arguments that the petitions suffer from lack of locus standi. 5. How did Respondent No.4 get L.O.I. dated 1 st December, 1998. It appears that the housing societies which were perhaps chawls in the large strip of land acquired by the impugned Notification dated 6th July, 1998 formed a Samiti called “Saiwadi Lokseva Samiti” in the year 1990 and had taken up the cause for the rehabilitation of the slum dwellers in the Saiwadi area of village Gundavli, Andheri East. Though initially 13 such societies had joined together and approached the respondentNo.4 and its Associates with a proprosal under the S.R.D. Scheme (Slum Redevelopment Scheme) for the plot area admeasuring 21735.50 sq. meters, 4 of these 13 societies subsequently withdrew their consent to join the said scheme and, therefore, M/s.Consol Architects Private Limited, acting on behalf 11 os-wp-974-99 & 1113-2000 of the respondent No.4 had submitted a proposal under S.R.D. Scheme in respect of the remaining 9 societies. The proposal submitted by the said Architects on 23rd May, 1994 was accepted by the Rehabilitation Authority and on 26th April, 1995 a Letter of Intent (LOI) was granted for F.S.I. of 2.5 in respect of the plot area admeasuring 10371.92 sq. meters in favour of the respondent No.4 (the first LOI). After the Act was amended with effect from 24/10/1995 so as to provide for the rehabilitation of the slum dwellers, meetings were held in the chamber of the Minister for Housing on 5th March, 1997 and 7th January, 1998 and it was decided to acquire the total area occupied by the Saiwadi slum dwellers of Gundavli village, some portion of which was already occupied by the slums and covered by the Letters of Intent referred to hereinabove. The architects of respondent No.4 submitted a fresh proposal on 7th March, 1998 so as to include the Government land C.T.S. No.447, two private lands purchased by the developers from C.T.S. No.440 (Part) and 445 as well as the lands belonging to the Arch Bishop, but under the possession of the Municipal Corporation. This proposal was accepted and a second LOI was issued on 30th April, 1998 by the SRA in favour of respondent No.4 through its architects and for a total plot 12 os-wp-974-99 & 1113-2000 area of 17,796.63 sq. meters and it was also approved for grant of FSI of 2.419. It permitted a total built up area on the plot i.e. rehab plus sale of 38614.70 sq. meters. On 16th May, 1998 it was suddenly decided to add the suit plots’ land in the said proposal for acquisition and on the very same day directions were issued to the Competent Authority to submit a proposal for acquisition of the total land admeasuring 44330 sq. meters, excluding the government land located in C.T.S. No.447. After it was claimed to have been acquired by the impugned Notification dated 6th July, 1998 the respondent no.4 submitted yet another proposal on 17/10/1998 and thus the third LOI dated 1st December, 1998 was issued by the SRA in favour of respondent No.4 through its Architects and for the proposed slum rehabilitation scheme and this third LOI replaced the earlier two LOIs. However, the first phase of the project was started by respondent no.4 after the first LOI was issued on 26/4/1995. The second and third LOIs were for the rehabilitation of slum dwellers and not for the redevelopment of the slum area, like the first LOI. 6. Petitioner’s case: Some of the suit land was reserved by the Municipal 13 os-wp-974-99 & 1113-2000 Corporation of Greater Mumbai for municipal housing society under the development plan approved by the State Government under the M.R.T.P. Act, 1966. However, a portion of both the plots was encroached upon by slum dwellers. One Asharam Tiwari had encroached upon the plot in C.T.S.No.449 and constructed three chawls in the year 1973. The petitioner’s father had taken up the issue with the Municipal Corporation for this unauthorized construction and on 17th March, 1976 the Corporation had informed him in writing that it had initiated action for demolition. In the meanwhile Shri Gulabdas Shah – the father expired on 5th November, 1977. The Corporation started issuing tax bills and from the Deputy Collector’s office the owners had received N.A. cess bills. The slum dwellers were not remitting any of these taxes and it was under these circumstances that the petitioner filed Short Cause Suit No.4109 of 1980 on or about 28th July, 1980 in the City Civil Court at Mumbai. While the said suit was pending his application for appointment of Court Receiver was allowed and the Court Receiver took possession of the suit property (CTS No.449) on 20th August, 1980. While the said suit was pending the petitioner received a copy of Notice of Motion No.849 of 1999 filed by respondent No.4 and prayed for directions to discharge the 14 os-wp-974-99 & 1113-2000 Court Receiver and hand over the possession of the suit property to the applicant i.e. the present respondent No.4. This Notice of Motion was filed on or about 15th February, 1999 and from the affidavit in support thereof filed by respondentNo.4 the petitioner came to know about the Notification dated 16th May, 1998 issued by the State Government under Section 14 of the Act and the said Notification was published in the government gazette on 6th July, 1998. He came to know that the respondent No.4 had undertaken the slum rehabilitation scheme on the entire plot area including the suit plots and, therefore, he approached this Court with the instant petitions. After filing the petitions, it appears that he also approached the office of the Lokayukta of Maharashtra State and the Deputy Collector (Encroachment) and a notice was issued on 3rd June, 1999 by the Section Officer from the said office. The petitioner had contended that the suit plots were his ancestral properties and were reserved for public purpose in the development plan and, therefore, his father could not develop the same. The Corporation did not take any steps for acquisition of the suit plots and a portion came to be encroached by the slum dwellers. He also referred to S.C. Suit No.4109 of 1980 and the appointment of Court Receiver who had already taken possession 15 os-wp-974-99 & 1113-2000 of the suit plot (C.T.S. No.449) on 20th August, 1980 along with the structures standing thereon. He claimed that the suit property is valued about Rs.3.00 crores (1831.3 sq. meters)and that the acquisition notification was issued at the behest of the respondent No.4. He prayed for directions to cancel the Letter of Intent granted in favour of the respondentNo.4 and for release of the suit plot from the said L.O.I. The Additional Collector (Encroachment) filed reply before the Lokayukta on 19th July, 1999 and pointed out that pursuant to the impugned Notification gazetted on 6th July, 1998 an award under Section 17 of the Act came to be passed and before passing of the said award the petitioner had taken objections in writing and, therefore, the suit land was not included in the award passed for the total area convered by the third LOI. 7. Orders passed by this Court in these Petitions: On 10th February, 2000 a Division Bench of this Court passed an order and noted in para 1 as under:- “1. Principal point amongst others raised by Mr. Dhakephalkar and the other Counsel for the petitioners 16 os-wp-974-99 & 1113-2000 in these three petitions, is with respect to the non- compliance with Section 14 of the Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (the Act for short) and the speed with which the further decisions were taken within a span of less than two months(indicating an ulterior interest) concerning the lands which are claimed to be owned by the petitioners. The first notification uner Section 14 of the Act was issued concerning these lands on 16th May, 1998 whereas the final decision was arrived at on 6th July, 1998. Mr. Dhakephalkar submits that when a F.S.I. of 2.7 was being offered the owners could have themselves offered to develop the property to whom the notice is required to be given under Section 14 of the Act.“ Since the above referred issues went to the root of the matter the Division Bench noted that it would be desirable for respondent No.4 to stay their hands with respect to the suit properties and more particularly C.T.S. No.429 and 449. On 20th April, 2000 another Division Bench continued the interim order passed on 10th February, 2000 i.e. marking of the suit plot from the total plot area of 44330 sq. meters separately. This order came to be vacated on 28th February, 2003 by allowing Notice of 17 os-wp-974-99 & 1113-2000 Motion No.183 of 2002 in Writ Petition No.974 of 1999 and Notice of Motion No.184 of 2002 in Writ Petition No.1113 of 2000. Though the interim order was vacated, even as per the affidavit filed on behalf of respondent No.4, on the suit plot there is one building under construction and has come upto 3 slabs and there is no further construction as of now. 90% of the rehabilitation scheme executed is on the larger plot area and it consists of 10 buildings so as to rehabilitate about 1600 hutment dwellers. The petitioner has placed before us photographs of the present state of the building under construction in the suit plot and it cannot be disputed that it is not beyond the three level slabs. The respondent No.4 by its additional affidavit dated 23rd June, 2010 has placed on record a copy of the notification dated 24th August, 1999 and published in the Government Gazette on 25th August, 1999 issued by the Chief Executive Officer of the SRA in exercise of his powers under Section 3C(1) of the Act declaring the areas mentioned in the Schedule given in the notification as “Slum Rehabilitation Areas”. At serial No.14 of the said notification is the area of village Guntavali (Saiwadi) admeasuring 44330 sq. meters, which includes the suit plots. 18 os-wp-974-99 & 1113-2000 The Scheme of the Act 8. The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 received the ascent of the President of India on 3rd April, 1971 and it was brought into force from 3rd September, 1971 for the areas within the limits of the Municipal Corporation of Greater Mumbai and for the cities of Pune, Solapur, Nagpur and Aurangabad. It was originally an Act for improvement, clearance and redevelopment of the slum areas. It has been amended at 15 times beginning from 26th April, 1973 and ending on 19th May, 2005. In the original Act there were in all 7 Chapters with 48 Sections. The first Chapter was preview. The second Chapter for Slum Areas, the third Chapter for Slum Improvement, the fourth one for Slum Clearance and Redevelopment and the 5th one for the Acquisition of Land. Chapter VI provided for the Protection of the Occupiers in Slum Area from Eviction and Distress Warrant, whereas Chapter VII was for Miscellaneous Provisions. Thus originally the Act was meant for slum improvement, clearance and redevelopment. However, Maharashtra Ordinance No.XIV of 1995 was issued so as to 19 os-wp-974-99 & 1113-2000 add Chapter 1A and titled as “Slum Rehabilitation Scheme” and it was brought into force with effect from 24th October, 1995. The ordinance was repealed by Act No.4 of 1996. Chapter 1-B was inserted by Maharashtra Ordinance No.XXVII of 2001 and was brought into force with effect from 18th May, 2001. The said ordinance was repealed by Maharashtra Act 10 of 2002. The said Chapter has been titled as “Protected Occupiers Relocation and Rehabilitation”. Chapter 1-C has been inserted in the Act with effect from 23rd October, 2003 and pursuant to Ordinance No.X of 2003 which was repealed by Maharashtra Act No.1 of 2005. The said Chapter is titled as “Special Provisions for in SITU Rehabilitation Housing Schemes for Protected Occupiers in Slum Areas”. For the present consideration Chapter 1-A is relevant and it provides for slum rehabilitation scheme and it has been brought into force with effect from 24th October, 1995. Thus when the first LOI dated 26th April, 1995 for the total plot area admeasuring 10371.92 sq. meters was issued in favour of the respondent No.4, Chapter 1-A was not in the statute book and, therefore, what was submitted on behalf of the respondent No.4 was only the slum redevelopment scheme and not the slum rehabilitation scheme. It is for the first time that on 7th 20 os-wp-974-99 & 1113-2000 March, 1998 on behalf of respondent No.4, a proposal was submitted for the slum rehabilitation scheme as contemplated under Chapter 1-A of the Act and it was also contended that about 74% of the slum dwellers from the concerned area had consented for the same. The first LOI for slum rehabilitation scheme was granted in favour of the respondent No.4 on 30th April, 1998 for an area admeasuring 17796.63 sq.mtrs. including the plot of land owned by the Government i.e. C.T.S. No.447 and the FSI granted was 2.419. 9. Some of the relevant definitions from the Act are reproduced as under:- (b) “building” includes a house, out-house, stable, shed, hut and other enclosure or structure, whether of masonry bricks, wood, mud, metal or any other material whatsoever, whether used as human dwelling or otherwise; and also includes verandahs, fixed platforms, plinths, door-steps, electric meters, walls including compound walls and fencing and the like, but does not include plant or machinery comprised in a building. 21 os-wp-974-99 & 1113-2000 (c) “Competent Authority” means a person or body appointed to be the Competent Authority under section 3. (d) “land” includes building and also benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth. (e) “occupier” includes - (i) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable. (ii) an owner in occupation of, or otherwise using, his land or building. (iii) a rent-free tenant of any land or building. (iv) a license in occupation of any land or building; and (v) any person who is liable to pay to the owner damages for the use and occupation of any land or building. (f) “owner”, when used with reference to any building or land, means the person who receives or is entitled to 22 os-wp-974-99 & 1113-2000 receive the rent of the building or land, if the building or land were let, and includes - (i)