IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2303 OF 2006 WRIT PETITION NO. 2303 OF 2006 WRIT PETITION NO. 2303 OF 2006 Dudhnath Kallu Yadav ) Resident of Raja Cottage, ) Ballu’s Stable No.12, Koldongri, ) Sahar Road, Opp-The Sangali ) Bank Ltd., Andheri (East), ) Mumbai-400 069. )...Petitioner versus 1. The State of Maharashtra ) through Government Pleader, ) High Court, (Original Side,) ) Mumbai-400 032. ) 2. The Additional Collector, ) (Encroachment/removal), and ) Competent Authroity, ) Mumbai Suburban District ) (Western Suburban), having ) his office at New Administrative ) Building, 7th Floor, Bandra (East), ) Mumbai-400 051. ) 3. Deputy Collector, ) (Excess/Expulsion), ) Griha Nirman Bhavan, ) Ground Floor, Room No.68, ) Bandra (East), Mumbai-400 051. ) 4. The Deputy Secretary, ) State of Maharashtra, ) Mantralaya, Mumbai 400 001. ) 5. Gurudatta Co-op.Housing Society ) (proposed), through its Secretary, ) having address at Patra Wala ) Stable No.17, Ballu’s Compound, ) Koldongri, Sahara Road, ) Andheri (East), Mumbai-400 069. ) 6. Subhash Chawda, ) C.Subhash & Associate, ) Proprietor of M/s.Subidha ) Developers, Ganesh Bhuvan, ) Daftary Road, Opp-Dena Bank, ) Malad (East), Mumbai-400 097. )...Respondents Mr.Milind Sathe alongwith Mr.Ramchandra Yadav and Mr.Swapnil Joshi i/b. M/s.Vigil Juris for the Petitioner. Mr.M.V. More, AGP for Respondent Nos.1 to 4. Mr.R.V. Govilkar alongwith Mr.P.M. Shah for Respondent No.6. CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J. Date of reserving Date of reserving Date of reserving the judgment : the judgment : the judgment : 17th June, 2008 17th June, 2008 17th June, 2008 Date of pronouncing Date of pronouncing Date of pronouncing the judgment : 25th September, 2008 the judgment : 25th September, 2008 the judgment : 25th September, 2008 ORAL JUDGMNET (Per ORAL JUDGMNET (Per ORAL JUDGMNET (Per V.M. KANADE, J.) :- V.M. KANADE, J.) :- V.M. KANADE, J.) :- 1. The petitioner is one of the co-owners in respect of property bearing Survey No.40, 46(Part) and CTS No.50, 51-1 to 23, 44, 45, 46 and 52, 52-1 to 4, Hissa Nos.3, 4, 5, 6, 8, 9 and 10 admeasuring 18,700 sq.yards equivalent to 15,600 sq.metres. By this petition which is filed under Article 226 of the Constitution of India, the petitioner is challenging the Notification dated 2nd March, 2006. The petitioner is seeking the following reliefs :- (a) That this Hon’ble court be pleased to - 3 - issue writ of certiorari, or a writ in the nature of certiorari, or any other writ, order or direction under Article 226 of the Constitution of India, calling for the records and proceedings in the Notification dated 2nd March, 2006 and after examining the legality validity and/or of propriety thereof, to quash and set aside the Notification; (Exhibits "F"); (b) That, pending the hearing and final disposal of this petition, this Hon’ble court be pleased to stay the operation and implementation of the Notification dated 2nd March, 2006; (b1) That, pending the hearing and final disposal of this petition, this Hon’ble Court be pleased to stay the operation and implementation of the Order/decision dated 2nd December, 2006 of the acquisition of the land under the provisions of Section 17 of the Maharashtra Slum (Development, Removal and Rehabilitation) Act, 1971; - 4 - (c) For interim an ad interim reliefs in terms of prayer (b) the above;" . Brief facts are as under :- 2. The respondent no.2 issued a Notification under Section 4(1) of the Slum Act dated 16th September, 2004 in respect of the petitioner’s property. It is the case of the petitioner that after he came across the public notice published in Mumbai Chaufer newspaper dated 9th July, 2005 which was issued under Section 14(1) of the Slum Act, the petitioner sent a legal notice to respondent no.1 to forthwith withdraw the said notice. Thereafter, he took inspection of the documents from the office of respondent no.2 and on 16th September, 2005, he came to know for the first time the notification under Section 4(1) of the Slum Act was published on 16th September, 2004. The petitioner filed an appeal against the said notification dated 16th September, 2004. The petitioner also filed written objections on 22nd September, 2004 to the said Case No.14(1) SR-15/2004. - 5 - It is the case of the petitioner that thereafter another notification was published in the Official Gazette dated 2nd March, 2006 acquiring the petitioner’s property. Thereafter, Notice dated 19th June, 2006 was issued to the petitioner asking him to remain present for fixing the compensation for the acquisition of the petitioner’s property. Being aggrieved by the Notification which was issued on 2nd March, 2006, the petitioner has filed this petition. 3. Shri Sathe, learned Senior Counsel appearing on behalf of the petitioner submitted that the Additional Collector had no authority to acquire the land, firstly, because by notification dated 26th March, 1998, the Deputy Collector, Andheri, was appointed as Competent Authority for Andheri Taluka and by notification dated 21st September, 2004, the Deputy Collector was appointed by the State Government. Secondly, it was submitted that the notice was issued under Section 14(1) seeking to acquire petitioner’s land and final notification under Section 14(1) was issued by Additional Collector on 6th June, 2005. It is, therefore, submitted that the - 6 - Additional Collector had no authority to issue the said notification and therefore, the entire acquisition is without authority of law and without jurisdiction. Secondly, it was submitted that there were certain discrepancies in respect of the area of the land. Then, it was submitted that there was non-compliance of the provisions of Sections 5, 11 and 14 of the Slum Act. It was submitted that for exercising the powers of acquisition, a proper representation had to be made by the competent authority to the Government that the authority is desirous of executing any work of improvement in relation to any slum area or any building in such area or to redevelop any clearance area. It was then submitted that under Section 14, the acquisition for redevelopment was permissible only in respect of clearance area as defined under Section 11 of the Act. It was submitted that the petitioner’s land had not been declared as clearance area. Further, it was submitted that the acquisition would be only for the purposes of execution of any work of improvement in relation to any slum or any building in such area and this would not include redevelopment of slum after demolition of - 7 - existing structure. It was further submitted that the work of improvement would be carried out only as per the provisions of Section 5. It was then submitted that the acquisition was made for the benefit of the builder. It was lastly submitted that the petitioner himself had offered to redevelop the land in accordance with DCR No.33(10) and instead of acquisition of petitioner’s land, he should have been given the opportunity redevelop the land. It was, therefore, submitted that the acquisition proceedings were arbitrary and violative of petitioner’s constitutional rights under Article 14 and 19(1)(g) and 300A. 4. We have heard the learned Counsel appearing on behalf of the petitioner and the respondents at length. Before we proceed to consider the rival submissions made by the learned Counsel on other side, it has to be noted that the petitioner has challenged the Notification dated 2nd March, 2006. Rest of the prayers are seeking interim relief during the pendency of the petition viz. staying of the notification dated 2nd March, 2006 and stay of the operation and implementation of the - 8 - order/decision dated 2nd December, 2006 and the acquisition of the land under Section 14 of the Slum Act. The petitioner’s counsel, however, while making submissions across the bar has also challenged the order passed by respondent no.2 declaring the property as slum area dated 16th September, 2004 and also the acquisition of the land under Section 14(1) read with Section 17 of the Slum Act. In the written arguments which are filed by the Counsel appearing on behalf of the petitioner also, several points have been raised regarding the procedure undertaken by the respondents for the declaration of the property as a slum under Section 4(1) of the said Act, acquisition proceedings which are undertaken under Section 14(1) and the Award passed under Section 17 of the Slum Act. 5. So far as first submission by the learned Counsel appearing behalf of the petitioner that the Additional Collector - respondent no.2 herein did not have authority to declare the property as a slum under Section 4(1) and initiation of acquisition proceedings under Section 14(1) is concerned, this submission is - 9 - without any substance. Though it is true that the Deputy Collector was appointed as competent authority by notification dated 26th March, 1998, it is a matter of record that the Additional Collector was appointed as a competent authority in the subsequent notification which was issued wherein that Additional Collector was also appointed as a competent authority under Section 3 and 3A of the Act. The submission made by the learned Counsel for the petitioner that the Additional Collector, therefore, did not have authority to declare the area as slum for acquisition of land is entirely without any substance. Secondly, it is submitted that the procedure which is required to be followed under Section 14(1) has not been followed by the respondents, also is incorrect. In the affidavit filed by the Deputy Collector, it has been stated that respondent no.2 had declared the land bearing CTS No.51 (Part), 52(part), 52-1 to 4 admeasuring 1183.75 sq.mtrs. as slum by notification dated 4th September, 2004 which was published in Government Gazette on 16th September, 2004. The petitioner admittedly has not challenged the said notification declaring the said area as a slum. The - 10 - petitioner, therefore, cannot be permitted to make submissions across the bar in respect of the procedure which was followed by respondent no.2 by declaring the said area as a slum. However, affidavit-in-reply is filed by the respondents herein indicating that the said procedure was followed by the respondents before the notification dated 4th September, 2004 was issued. 6. After the proposal was given by respondent no.5 for the development of the slum under the Slum Rehabilitation Scheme, respondent no.2 initiated acquisition proceedings under Section 14(1) of the Slum Act and issued notice to the petitioner on 6th June, 2005 by registered post. However, the same was returned with an endorsement "Not known". Thereafter, acquisition notice was published in Marathi daily newspaper "Mumbai Chaufer" on 9th July, 2005 calling upon objections to the said acquisition. Pursuant to the said notice which was published in the newspaper, the petitioner by his letter dated 22nd September, 2005 through his Advocate raised some objections. These objections were considered by respondent no.2 and he - 11 - came to the conclusion that it was necessary to acquire the land and accordingly, as per the proposal given by respondent no.2, Government issued notification which was published in the Government Gazette dated 2nd March, 2006. Thereafter, respondent no.3 started the process of declaring the Award of acquiring the land and issued notice to the petitioner on 19th June, 2006 calling upon the details of the rent collected from the tenants. However, the said information was not given by the petitioner and accordingly, the amount of compensation was fixed after taking into consideration the rate of compensation which was recovered by the Government from the hutment dwellers and it was fixed at Rs.5,10,720/-. This proposed compensation amount was informed to the petitioner by letter dated 14th September, 2006 but the petitioner did not file any dispute or raise any objection to the said compensation which was fixed. Since no reply was given by the petitioner, an Award was declared by respondent no.3 under Section 17(3) and 17(4) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 and declared the Award of acquiring land on 2nd December, 2006. The copy - 12 - of the Award was communicated to the petitioner and he received it on 12th December, 2006. The Award was also published on the site of acquired land and was also published on the office notice board of respondent no.2. It can be seen that therefore, the procedure under the Slum Act has been duly complied by respondent nos.2 and 3 as laid down under the Act and the amount of compensation is also deposited with the Reserve Bank of India on 8th February, 2007. 7. So far as the objection of the petitioner regarding the exact number of slum dwellers is concerned, that aspect has already been referred to the High Powered Committee constituted under the Full Bench order of this Hon’ble Court in the case of Tulsiwadi Tulsiwadi Tulsiwadi Navnirman Co-operative Housing Society Ltd. and Anr. Navnirman Co-operative Housing Society Ltd. and Anr. Navnirman Co-operative Housing Society Ltd. and Anr. vs. State of Maharashtra and Others vs. State of Maharashtra and Others vs. State of Maharashtra and Others, decided on 1st November, 2007. The petitioner has also raised an objection regarding the exact area which is declared as the slum. According to the respondents, area is correctly declared and the particulars have been given by him in the affidavit-in-reply. However, this issue - 13 - also can be decided by the High Powered Committee as laid down by the Full Bench order of this Court in Tulsiwadi’s case (supra). Tulsiwadi’s case (supra). Tulsiwadi’s case (supra). 8. The petitioner, on the one hand, has filed this petition challenging the acquisition proceedings on various grounds. The petitioner also has challenged, though no relief is claimed by the petitioner by making submissions across the bar, the action of the respondents in declaring the area as slum and on the other hand, the petitioner had offered to redevelop the land under Regulation 33(10) of the DC Rules. The respondents have brought certain documents on record to indicate that the petitioner had entered into a development agreement with M/s.Kamal Construction. The petitioner cannot be permitted to take inconsistent pleas in this manner. The fact that he has offered to redevelop the property itself suggest that the respondents had followed the procedure contemplated under the Slum Act declaring the area as slum or/and for acquisition of land under Section 14(1) of the said Act and there is no irregularity in the said procedure which - 14 - was followed by the respondents herein. The petitioner claims to be the owner of part of the land. He has failed to provide basic amenities to the slum dwellers, therefore the competent authority had declared the area as slum area. Respondent no.5 had offered the scheme for redevelopment of the said slum area. The land was declared as a slum in 2004. The petitioner did not take any steps till the land was acquired by the Government and thereafter, the present petition has been filed. The delay caused in filing the petition has not been sufficiently explained. The petitioner, therefore, has not come to the Court with clean hands. He was the owner of part of the land. The other owners have not come forward to challenge the notification for a declaration of the area as slum or for acquisition of land. The petitioner, therefore, is not entitled to get any relief from this Court while exercising the jurisdiction under Article 226 of the Constitution. There is, therefore, no substance in the submission made by the learned Counsel for the petitioner. 9. Writ Petition, therefore, is dismissed. Under - 15 - the circumstances, there shall be no order as to costs. CHIEF JUSTICE CHIEF JUSTICE CHIEF JUSTICE V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J.