M/S Parag
Construction Vs. State of Maharashtra & Ors. [2008] INSC 1983 (19 November
2008)
Judgment
"REPORTABLE"
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6712 OF 2008 (Arising out
of SLP(C) No. 16825 of 2007) Parag Construction .... Appellant Versus State of
Maharashtra & Ors. .... Respondents
V.S. SIRPURKAR, J.
1.
Leave
granted.
2.
A
Division Bench Judgment passed by the Bombay High Court, dismissing the Writ
Petition filed by the appellant herein is in challenge before us. By the said
petition, the petitioners/appellants had challenged the acquisition of land,
bearing Final Plot No. 22A, 22B and 22C of the Town Planning Scheme
(hereinafter referred to as `TPS' for short) of Borivali (East). In this Writ
Petition, the following prayers were made:
"(a) that this
Hon'ble Court be pleased to issue a writ of Certiorari or a writ in the nature
of certiorari or any other 2 appropriate writ, order or direction under
Article 226 of the Constitution of India calling for the records of the
proceeding adopted by the Respondent No. 7 under the Provisions of Maharashtra
Regional Town Planning Act, 1966 in respect of land bearing final plots 22A,
22B and 22C admeasuring 13980 sq. yards of Town Planning Scheme Borivali-II,
Borivali (E) and consider the propriety of the action taken by the Respondent
No. 7 and quash and set aside the proceedings adopted by the Respondent No.6
and 7 for the said land in year 1996;
(b) 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 under Articles 226
of the Constitution of India directing the Respondents to forthwith stay their
action pursuant to Letter of Intent issued by the Respondent No. 6 in favour of
the Respondent No. 4 for development of land mentioned in the said letter dt.
18.04.2006 annexed as
Exh. `F' hereto and set aside the permission granted in the Letter of Intent
issued in favour of the Respondent No. 4;
(c) that this Hon'ble
Court be pleased to restrain the Respondent No. 2 from taking action pursuant
to notice dt. 21.08.2006 issued to the Petitioners/appellants as Exh. `P'
hereto;
(d) pending the
hearing and final disposal of the Petition this Hon'ble Court be pleased to
grant interim order restraining the Respondents, their servants, subordinates,
officers and agents from in any manner acting upon the Letter of Intent dt.
18.04.2006 issued by the Respondent in favour of the Respondent No. 4 for
development of the land mentioned therein under Slum Redevelopment Scheme:
(e) Not relevant.
(f) Not relevant.
(g) Not
relevant."
3.
The
petitioners/appellants, inter alia, claimed that they had become the owner of
land admeasuring 11944 sq. yards, bearing Final Plot No. 7A1, 7A3 and 7B and
bearing Survey Nos. 88 and 89, (2) Final Plot No. 13A, bearing Survey No. 8
admeasuring 22,635 sq. yards and (3) Final Plot No. 22A, 22B and 22C bearing
Survey No. 6 admeasuring 13,980 sq. yards in village Kanheri, Taluka Borivali,
Mumbai Suburban District, total admeasuring 48569.59 sq. yards. The petition
was in respect of land bearing Final Plot No. 22A, 22B and 22C admeasuring
13,980 sq. yards.
4.
The
petitioners/appellants claimed to have purchased the said property under the
certificate of sale dt. 24.9.1981 issued by the Prothonotary and Senior Master,
High Court of Bombay in suit No. 42 of 1972 pursuant to the Orders passed by
the Learned Single Judge of the High Court on 11.10.1982 in Chamber Summons No.
450 of 1982.
5.
The
petitioners/appellants restricted their claim to a plot admeasuring 1485.89 sq.
mtrs., shown by red colour boundary in a map attached to the petition. The
petitioners/appellants further claimed that out of the total property purchased
from the Court Receiver, land bearing Final Plot No. 13A of TPS of Borivali-II
was acquired by the Land Acquisition Officer and they had been paid a sum of
Rs.2,80,984/- 4 by way of compensation for the said acquisition. They further
pointed out that there was some litigation in respect of land bearing Final
Plot No. 7B, which was settled by filing Consent Terms in this very Court.
They claimed that the
land bearing Final Plot No. 7A1 and 7A3 of TPS of Borivali-II was used by the
petitioners/appellants for construction of a building, namely, `Ghanshyam Towers'
and that the present petition was in respect of part of land which bears Final
Plot No. 22A, 22B and 22C.
6.
The
petitioners/appellants further claimed that they came to know in May, 2006 that
someone was trying to develop a portion of the said land under the Slum
Rehabilitation Authority Scheme and hence, they had written a letter dt.
2.5.2006 to the Chief Executive Officer, Slum Rehabilitation Authority
(hereinafter referred to as `SRA' for short) to furnish the information. They
claimed to have obtained a copy of the Letter of Intent dt. 18.4.2006, which
was in favour of Respondent No. 4 Siddhivinayak Developers. It was claimed that
the said letter was in respect of the land admeasuring 1485.89 sq. mtrs. under
the Slum Development Scheme. It is precisely in respect of this land that the
Writ Petition was filed. The petitioners/appellants further pointed out that
this Letter of Intent in favour of Respondent No. 4 Siddhivinayak Developers
was illegal, as the property in respect of which the rights were given to
develop the same land, belonged to the petitioners/appellants and it was
without any notice to the petitioners/appellants that the said property came to
be allegedly acquired by the respondent No. 6, Municipal 5 Corporation of
Greater Mumbai (hereinafter referred to as `the Corporation' for short), and
was further intended to be given away in favour of Siddhivinayak Developers for
development. The petitioners/appellants further claimed that they received a
notice dt. 27.6.2006 from the City Survey Officer Borivali, informing the
petitioners/appellants that the said Authority would take measurements and
would fix boundary of the disputed property on 5.7.2006, for which the
petitioners/appellants had already raised objections vide letter dt. 1.6.2006 and
thereafter, also by letter dt. 24.7.2006. The petitioners/appellants also
pointed out that the whole exercise was illegal and that they had also filed a
Small Causes Suit No. 3233 of 2006 in Bombay City Civil Court at Bombay. They
pointed out that they tried to obtain ad-interim injunction on 14.7.2006, when
it was pointed out by the defendants/respondents that the property {described
in civil suit as part of Final Plot 22B (Pt.) in para 2 and in prayer clause
(c)} was already acquired under the provisions of Maharashtra Regional Town
Planning Act, 1966 (hereinafter referred to as `the Act' for short) way back in
the year 1996 and in the Revenue records also, the said property stood in the
name of the Corporation except the Final Plot No. 22A, which was already
allotted to one Shri Anant P. Velkar and 6 others. They averred that the City
Civil Court refused to grant ad-interim injunction. They claimed that it was
then, that they came to know that Final Plot Nos. 22B and 22C were allotted to
the Corporation after the acquisition and the Corporation had paid the
compensation of 6 Rs.91,214.35 to Shri Anant P. Velkar and 6 others, which
could not have been given to them. The petitioners/appellants, therefore,
challenged the entire action of the acquisition of the land bearing Final Plot
No. 22B and 22C of TPS of Borivali-II by respondent No. 7, the Arbitrator under
the provisions of the Act, on the ground that it was contrary to the provisions
of the said Act.
7.
In
short, the petitioners/appellants claimed the right to a notice on the basis of
their ownership through the sale certificate mentioned in the earlier part of
the judgment and claimed the right to a notice on the basis of that all the
further actions without any notice to the petitioners/appellants, were illegal
and non-est. It was on this basis, that the whole proceedings of acquisition
were challenged before the High Court. The petition was opposed by the SRA, the
Corporation, as also by the Arbitrator, so also by 2 other respondents, namely,
Ashtavinayak Cooperative Housing Society Ltd. and Siddhivinayak Developers on
various grounds. Ultimately, the High Court has come to dismiss the Writ
Petition, which judgment is in challenge before us.
8.
Before
the High Court, the respondents had raised the defence that the
petitioners/appellants had already resorted to alternative remedy by filing
Small Causes Suit No. 3233 of 2006 in Bombay City Civil Court at Bombay and
when they failed to obtain any interim relief, they have approached this Court.
The further plea raised was about the 7 laches. It was further pleaded that
the concerned land had become a part and parcel of the TPS of Borivali-II and
was never available for the Court sale. It was further pleaded that by the TPS,
which came into effect on 15.04.1996, the concerned plot of land was allotted
to respondent No. 6, the Corporation and under the said TPS, the said plot was
reserved for public purpose and the compensation thereof was also paid to the
owners after its acquisition and, therefore, there was no question of the
petitioners'/appellants' right, title or interest in the land.
It was pointed out
that even prior to the publication of TPS of Borivali-II, an Arbitrator was
already appointed under Section 72(1) of the Act and in pursuance of that, ultimately
a scheme was finalized and published by him, which came into force from
15.4.1996 and, therefore, the petitioners/appellants could not claim any
interest in that land.
9.
The
High Court traced the history and found on the basis of the affidavit filed by
the Corporation along with the documents that when the arbitration proceedings
in respect of the Scheme were initiated in the year 1972, then the concerned
land was original plot No. 22, which ultimately became Final Plot Nos. 22A, 22B
and 22C. It was found that Final Plot No. 22B was reserved in the TPS for
Health Centre, while Final Plot No. 22C was reserved for garden and the Final
Plot No. 22A had been allotted in lieu of original plot No. 22 to Shri Anant P.
Valkar and 6 Ors. The High Court found that the arbitration proceedings were
initiated by notification No. TPB-4762-M dt. 18.10.1962 and one 8 Mr. J.G.
Keskar was appointed as Town Planning Officer. A public notice dt. 3.1.1963 was
also given and hearing was also conducted by the Arbitrator on 29.4.1972. After
Mr. J.G. Keskar, Mr. K.S. Keswani came to be appointed as Arbitrators, who
again gave an opportunity to the interested parties for hearing on 22.4.1975
and the minutes of the said hearing dt. 22.4.1975 were signed by all the
interested parties.
After Mr. Keskar, Mr.
Keswani dealt with the matter as an Arbitrator and thereafter, the final
decision was issued by Mr. V.D. Kulkarni. Firstly, the draft Scheme was
finalized on 07.07.1978 and then the final scheme was submitted by Mr. G.D. Karkare,
the Arbitrator to the State of Maharashtra on 15.4.1983 for final sanction. It
was so sanctioned by a Government Notification dt. 7.3.1996 w.e.f. 15.4.1996.
The High Court noted that the occupants of the structures were also noticed and
they had also appeared on 27.10.1975 and were heard in the matter. The High
Court found that originally, the TPS of Borivali-II was sanctioned on 27.1.1931
and came into force w.e.f. 15.3.1931. The first variation of the TPS was
initiated by Borivali Municipality on 11.9.1956 and on 1.2.1957, the area of
Borivali Municipality merged in Bombay Municipal Corporation (`the Corporation'
herein) and on 29.2.1960, the Corporation decided to vary the principal scheme.
The State Government had also authorized the Collector of Bombay and Bombay
Suburban District to make and publish a draft variation scheme and thus, on
26.9.1962, the draft variation scheme was sanctioned by the Government. There
were, in all, five Arbitrators appointed, whose 9 names have come earlier in
this judgment and ultimately, the last Arbitrator Mr. V.D. Kulkarni had
finalized the draft scheme on 7.7.1978.
The High Court noted
that the matter was also dealt with by the Appellate Tribunal, which decided
the appeal on 4.11.1982 and thereafter, the then Arbitrator Mr. G.D. Karkare
submitted the Scheme to the State Government on 15.4.1983 after incorporating
the decisions of the Appellate Tribunal, which was approved by the Government
of Maharashtra on 7.3.1996 w.e.f. 15.4.1996. Thus, the High Court came to the
conclusion that the Arbitrator had submitted the final Scheme to the
Government, as required by Section 82(2) of the Act and it stood sanctioned.
The High Court also took notice of the fact that the petitioners/appellants had
filed a Civil Suit and they failed to obtain the injunction and thereafter, the
present petition was filed. The High Court also noted the fact that Shri Anant
P. Velkar and 6 others, who were the original owners, were allotted plot No.
22A in lieu of whole original plot No. 22, which was divided into plot Nos.
22A, 22B and 22C. The High Court further noted that the Suit in respect of that
property was pending as Civil Suit No. 42 of 1972, in which there was a
settlement on 27.6.1978 and it was only after the settlement and judgment in
this Suit, that the petitioners/appellants allegedly purchased the property.
However, even prior
to this, the land in question got divested as per the TPS of Borivali-II of the
Corporation and it was only then, that Shri Anant P. Velkar and 6 others were
allotted Final Plot No. 22A and also accepted the compensation in lieu of the
entire plot No. 22. The High 10 Court also noted that when the draft Scheme
was finalized, the owners were already informed and they had fully
participated. In short, the High Court came to the conclusion that even before
the petitioners/appellants purchased the property from the Court Receiver on
24.9.1981, much water had flown under the bridge, in the sense that the draft
Scheme was finally prepared and as such, the petitioners/appellants had no
right or claim, so as to insist upon a notice, while taking over the possession
of the property in question. The High Court also found that the
petitioners/appellants could not have purchased this property, since it had
already vested with the Corporation in terms of the order passed by the
Arbitrator. The claim of the petitioners/appellants that they were in
possession of the property, which was given to them by the Court Receiver, was
also disputed by the respondents and rejected by the High Court. The High
Court, ultimately, observed that if at all the petitioners/appellants had any
claim, title or interest, it can be only against Velkar & Family, who were
the original owners of the land and were parties in the Civil Suit No. 42 of
1972. However, the petitioners'/appellants' claim regarding Final Plot Nos.
22A, 22B and 22C, admeasuring 13,980 sq. yards, could not be entertained. This
is how the petition came to be dismissed.
10.
Shri
Shyam Diwan, Learned Senior Counsel, appearing for the appellant, basically
urged that the petitioners/appellants have and had good title and they alone
were entitled to develop the property. In 11 support of this, the Learned
Senior Counsel heavily relied on the Sale certificate dt. 24.9.1981, issued by
the Bombay High Court, as also other incidental facts that at the time of
acquiring Final Plot No. 13A, the petitioners/appellants' right was recognized
in those land acquisition proceedings. He also pointed out that the
petitioners/appellants had undertaken development and construction of plot No.
7B in pursuance to the Consent Terms entered in this very Court on 23.10.2002
and in those proceedings, the Corporation was a party. The Learned Senior
counsel further invites our attention that a commercial building known as
`Ghanshayam Towers' was constructed by the petitioners/appellants on Final Plot
Nos. 7-A1 and 7-A3 after duly obtaining the sanction from the Corporation.
Lastly, the Learned Senior Counsel urged that the property cards maintained by
the City Survey Office were also maintained by posting a suitable mutation
entry dt. 23.1.1986, showing the name of the petitioners/appellants as a holder
in place of Velkar & Family in respect of plot No. 22B and 22C.
11.
After
this assertion of ownership, the Learned Senior Counsel develops his further
argument that there could be no lawful vesting of plot Nos. 22B and 22C,
incorporated under Section 88 of the Act. The Learned Senior Counsel suggested
that it was consistently the case of the Corporation that this vesting took
place only from 15.4.1996 and in support of this stand three affidavits were
filed before the High court, in which this very case was pleaded. The Learned
Senior Counsel took exception to the proceedings before the Arbitrators, which
were relied 12 upon by the Corporation. The Learned Senior Counsel went to the
extent of saying that the record appeared to be concocted and did not represent
a true state of affairs. On that basis, the case pleaded was that once there
was lawful prior acquisition of the rights by the petitioners/appellants from
the Court Receiver, there was no question of the petitioners/appellants not
being given any notice and hence, the subsequent land acquisitions must fail,
thereby, there would further be no question of the vesting of the property in
the Corporation. The Learned Senior Counsel also took exception to the huge
delay on the part of the State Government to sanction the Scheme, which was
about 13 years. The Learned Senior Counsel, therefore, assailed the sanction to
the proposed Scheme by the Arbitrator, also. The Learned Senior Counsel also
suggested that there was no lawful vesting of plot Nos.
22B and 22C in the
Corporation, even under Section 83 of the Act. The Counsel buttressed his
arguments by suggesting that Section 83 was never resorted to or relied upon by
the Corporation and there was nothing on record to suggest that the possession
of the initial Final Plot No. 22B was ever taken by the Corporation. The
Learned Senior Counsel also assailed the theory of advance possession taken
under Section 83, on the ground that there was no lawful arbitral award or
decision or sanction. Lastly, the Counsel argued that there was no document to
show vesting of Final Plot No. 22C through the advance possession procedure. The
so-called possession receipts, which were filed by the Corporation, were also
seriously disputed and ultimately, the Counsel argued that unless the Scheme
was finally sanctioned by the State Government under Section 86, there could be
no finality with respect to the TPS. In short, the contention was that since
there was no vesting of the land under Section 83(3) and since before the
alleged vesting on 15.4.1996, the property was purchased by the
petitioners/appellants from the Court Receiver in whose custody the property
was, the petitioners'/appellants' rights could not be jeopardized.
Lastly, it was
contended that respondent No. 3 and 4 had no rights, whatsoever, as they had no
title and, therefore, the Letter of Intent dt. 18.4.2006 was liable to be
withdrawn. We were taken through the various provisions of the Act. While
commenting on the High Court judgment, the Learned Senior Counsel contended
that the High Court had ignored the principles of natural justice, secondly, it
had given palpably erroneous factual references and the High Court had also
given an incorrect finding on the vesting of the property.
12.
Shri
Arvind V. Sawant, Learned Sr. Counsel, Shri Sanjay V. Kharde, Shri Pallav
Shishodia, as also Shri Arun Pednekar, Learned Counsel, appearing on behalf of
the contesting respondents like Ashtvinayak Cooperative Housing Society Ltd.,
SRA, the Corporation and the Arbitrator respectively, supported the judgment of
the High Court. Again by relying on various provisions of the Act, the parties
traced the history of the proceedings, which ultimately led to issue of a
notification in 1996. The respondents also took us through the various 14
Sections, Rules, as also the Scheme Rules under the Act. Before we take up the
rival contentions and the considerations, we would have to trace the history
even at the cost of repetition and also consider the various provisions of the
Act and the schemes thereunder.
13.
The
disputed land is, undoubtedly, a part of the TPS Borivali-II, which was
sanctioned on 27.1.1931. On 26.9.1962, Draft TPS Borivali- II, which was of
First Variation came into existence and ultimately, the earlier plot No. 22 was
divided in 3 plots, being Final Plot No. 22A, 22B & 22C. The Final Plot No.
22A was allotted to Anant P. Velkar and six others, who were the original
owners of the property, Final Plot No. 22B was reserved for health centre and
Final Plot No. 22C was reserved for a recreational ground by sanction of
Government dated 4.5.1993. The arbitration proceedings started on 18.10.1962. However,
since the earlier proceedings were inconclusive, they were recommenced under
the Act, which came on the anvil in 1966. Before the Arbitrator, a Vakalatnama
was filed on behalf of the Velkar Family and they all appeared through
advocate. They did not take any objection to the possession, being taken of
Final Plot No. 22B. We find from the record that Mr. Vakil, Advocate, appearing
on behalf of the Velkar Family was agreeable to possession of Final Plot No.
22B and 22C being taken over by the Corporation immediately under Section 83 of
the Act. Civil Suit No. 42 of 1972 was filed for partition between the members
of the Velkar Family and amongst the other properties, these three plots (Final
Plot 15 Nos. 22A, 22B and 22C) came to be included. An endorsement was found
by the Arbitrator on 22.04.1975 to the effect that plot No. 22A was allotted to
Shri Velkar & 6 others, while rest of the land was acquired under the
Scheme for Health Centre and garden, being Final Plot Nos.
22B and 22C
respectively. In the Civil Suit, a consent decree came to be filed on 27.6.1978
and this decree also included the disputed properties, namely, all the three
plots. A Court Receiver was appointed for effecting the partition as per
respective share of the parties to the Suit. An order is found on the record of
the Civil Suit to the effect that in the event, the Commissioner could not
conveniently allot the properties to the concerned parties, such property
should be sold by way of auction. Sh. Shishodia, learned counsel for the
respondents, brought to our notice that there is no document or material
evidence to show that the Court Receiver ever took even a symbolic possession
of the property and thus, the property continues to be in possession of the
parties.
14.
On
4.10.1979, a notification appeared in the Gazette in exercise of powers under
Section 83(2), directing the arbitrator to take possession of the original plot
No. 22 (part), being Final Plot No. 22B.
The Arbitrator took
the possession of the Final Plot No. 22B (Pt.) and handed over the same to the
Corporation. This happened on 16.6.1980.
Even before this,
notices were also sent on 8.2.1980 for taking the possession under Section
83(3). This date, i.e., 8.2.1980 is extremely 16 important, as it suggests
that the action for taking the possession was already initiated, even before
the auction by Civil Court. Though on 24.9.1981, the present appellant claimed
to have acquired the property in the auction of this property along with other
properties, there does not appear to be any document or evidence to show any
follow up action, suggesting the taking of possession of Final Plot No. 22B or
22C on behalf of the petitioners/appellants from the Court Receiver. Some
persons had filed the appeals before the Appellate Tribunal on 4.11.1982, but
nothing happened to that. Ultimately, on 15.4.1983, the then Arbitrator drew
the final scheme and tendered it to the Government for grant of sanction. It
was on 22.6.1985, that these areas were declared as slums under the Maharashtra
Slum Areas (Improvement Clearance and Redevelopment Act, 1971) (hereinafter
called "Slum Act" for short). The Government exercised its power of
extending the time on 6.3.1996 and ultimately, a notification came to be issued
by the Government of Maharashtra on 7.3.1996, granting approval under Section
86(2) to the TPS with effect from 15.4.1996. By operation of Section 86(3), the
TPS became part of the Act and under Section 88(a), all lands required by the
planning authority vest absolutely in planning authority, i.e., the
Corporation, free from all encumbrances and all the other rights in the
original plot shall determine. It was on 18.4.2006 that the SRA issued a Letter
of Intent in favour of the 4th Respondent herein.
It was then that the
Civil Suit was filed by the petitioners/appellants in the Civil Court, being
Civil Suit No. 3233 of 2006 for cancellation of 17 above Letter of Intent and
it was then that the petitioners/appellants asserted his ownership over the
property described as Final Plot No.
22B(Pt.). The
petitioners/appellants were informed that land bearing Final Plot Nos. 22B and
22C stood allotted to the Corporation, for which the compensation of
Rs.91,214.35 was paid to the Velkar Family. As has already been suggested, the
Trial Court did not grant injunction, wherein, the claim was made by the
petitioners/appellants that the plaintiff's right in the land subsisted and was
not affected by the acquisition thereof in favour of the Corporation. It was
then that the Writ Petition came to be filed purportedly, challenging the
Letter of Intent dt. 18.4.2006.
15.
Shri
Shishodia pointed out that there is one other Letter of Intent issued on
12.9.2006, which was in supercession of earlier Letter of Intent dt. 18.4.2006,
however, the petitioners/appellants have not so far challenged the Revised
Letter of Intent. We have deliberately stated the history in order to test the
claim of the petitioners/appellants that they had acquired the title to the
land in dispute and, therefore, any acquisition proceedings without notice to
them, could not materialize.
When we see the
development of the proceedings under the Act, it would be seen that the first
Arbitrator was Shri J.G. Keskar, who had issued notice to the concerned parties
like Shri Velkar & 6 others. It must be noted here that at that juncture,
petitioners/appellants were nowhere in the picture. In fact,
petitioners/appellants came on the 18 picture only on the day when they
purportedly purchased the property involved in the Suit on 24.9.1981, which was
way beyond the earlier mentioned date of 8.2.1980, when the notices were
already issued under Section 83(3) for taking possession. Learned Counsel Shri
Shishodia, as well as Shri V. Savant and Shri Kharde, appearing for the
respondents asserted before us that on 27.6.1978, this property, particularly,
the Final Plot No. 22 could not have been in the hands of the Receiver as the
Receiver could only hold the property, which belonged to the Velkar Family and
much before that, the proceedings were concluded, at least the Draft final
Scheme was passed, and the advance possession procedure was also adopted,
thereby, there was no question of the Receiver being in possession of the
concerned property or his giving the possession of the said property in favour
of the petitioners/appellants. The petitioners/appellants, undoubtedly, may
have purchased the other properties involved in the Suit, however, insofar as
this particular property was concerned, the learned Counsel for the respondents
insisted that the Receiver could not have been in possession of the property,
nor could he have granted the possession of the properties to the
petitioners/appellants. It is with that idea that the learned Counsel rightly
submit that there is absolutely no proof anywhere that the petitioners/appellants
were given the possession of the concerned property.
16.
On
this backdrop when we see the history of the proceedings under the Act, it is
clear that Shri Keskar, who was the first Arbitrator was followed later on by
Shri P.G. Sirdesai, Shri J.B. Kamat, Shri K.S. Keswani, Shri V.D. Kulkarni and
it was Shri V.D. Kulkarni, who had finalized the Scheme on 7.7.1998. The High
Court had also noticed this factor that the Appeal was decided by the Appellate
Tribunal against the Draft Scheme on 4.1.1982 and thereafter, Shri G.D.
Karkare, who had stepped into the shoes of Shri Kulkarni, had submitted the
Scheme to the State Government on 15.4.1983 after incorporating the decisions
of the Tribunal of Appeal and ultimately, it was this Scheme, which came to be
finalized and approved by Government of Maharashtra on 15.4.1996 by way of
first variation. On the Backdrop of this, the learned Counsel rightly contend
that the claim of the petitioners/appellants to have become owner of the
property, cannot stand.
17.
Mr.
Shyam Divan, Learned Sr. Counsel, appearing on behalf of the appellants very
strenuously contended that apart from the certificate of the Court Receiver,
the petitioners/appellants was in fact, put in possession on 13.12.1983 by the
Court Receiver himself as per the possession receipt. He also pointed out that
in respect of other properties, which were purchased, on Final Plot Nos. 7-A1
and 7-A3, the petitioners/appellants had constructed a building called
`Ghanshyam Towers'. So also, in respect of a Final Plot No. 7B, there was some
dispute which was settled by the consent terms dt. 23.10.2002 before 20 this
Court. The contention is attractive, but, meritless. It will be seen that
number of other properties, besides the concerned property were purchased by the
petitioners/appellants and there is nothing to disbelieve that version that the
petitioners/appellants were auctioned purchasers. However, that does not mean
that the petitioners/appellants became the owner of the concerned properties in
Final Plot No. 22 and more particularly, Final Plot No.22B and 22C. The prayer
in civil suit related to Final Plot No.22B (Pt.) while the prayer in writ
petition is delightfully vague. It is only in respect of Letter of Intent
without mentioning specific plot number. It is obvious that the other
properties were not part of the TPS or at least, they have not been shown as
the part of the TPS. Even if it is accepted that the petitioners/appellants had
became the owner and dealt with those properties that does not help the petitioners/appellants,
insofar as the present property is concerned, as it was already a part of the
TPS and the possession thereof was already taken under Section 83(3) by the
Arbitrator. Shri Divan urged that Section 83(3) did not apply. Section 83 is as
under:- "83. (1) Where a Planning Authority thinks that in the interest of
the public, it is necessary to undertake forthwith any of the works included in
a draft scheme for a public purpose, the Planning Authority shall make an
application through the Arbitrator to the State Government to vest in it the
land (without any building) shown in the draft scheme.
(2) The State
Government may, if satisfied that it is urgently necessary in the public
interest to empower the Planning Authority to enter on such land for the
purpose of executing any of such works, direct the 21 Arbitrator, by
notification in the official Gazette to take possession of the land, or may,
after recording its reasons refuse to make any such direction.
Provided that, no
such direction shall be made without the Arbitrator giving a hearing to any
person or Planning Authority affected by such direction, and considering the
report of the Arbitrator in that behalf.
(3) The Arbitrator
shall then give a notice in the prescribed manner to the person interested in
the land the possession of which is to be taken by Arbitrator requiring him to
give possession of his land to the Arbitrator or any person authorized by him
in this behalf within a period of one month from the date of service of notice and
if no possession is delivered within the period specified in the notice, the
Arbitrator shall take possession of the land and shall hand over the land to
the Planning Authority. Such land shall thereupon, notwithstanding anything
contained in this Act, vest absolutely in the Planning Authority free from all
encumbrances."
The contention was
raised under sub-Section (3). The action of taking the possession under Section
86(2) by the Arbitrator could be done only when the Arbitrator gives a notice
to the person interested in the land. The learned Senior Counsel contended that
the petitioners/appellants were, undoubtedly, "person interested", as
the petitioners/appellants came on the land via sale certificate in September,
1981. This is clearly an incorrect argument, for the simple reason that the
petitioners/appellants merely purchased the properties of Velkar Family in the
auction in September, 1981, however, there is nothing on record to suggest that
the possession of those properties was given by the Receiver. Indeed it could
not have been given, for the simple reason that the possession was already
taken earlier in the year 22 1980 under the notice to Velkar family. Again the
petitioners/appellants were not anywhere in the picture, so as to insist upon a
notice. It is obvious that in the earlier proceedings under the Act, the
representatives of Velkar Family were properly heard and the Arbitrator had
proceeded perfectly in tune with the provisions of the Act. We do not have any
reason to dispute the claim on behalf of the Corporation, as also the
Arbitrator that the possession was taken in the year 1980 itself. If that is
so, at that time, since the petitioners/appellants were not on the picture,
there was no question of giving any notice to them or hearing them under
Section 83(2). Shri Divan also, very heavily relied on the property cards
maintained by the City Survey Office, which were amended by a mutation entry
dt. 23.1.1986, which showed the name of the petitioners/appellants as the
holders in place of the Velkars. We have no difficulty in accepting that the
property cards were indeed amended, but that by itself, will not give any
benefit to the petitioners/appellants, for the simple reason that a mere
amendment in the property cards of City Survey Office cannot and could not
create a title in favour of the petitioners/appellants. The entries may have a
presumptive value, however, that would not be sufficient. We have already shown
that the Velkar Family had lost the possession way back in 1980 itself and the
concerned plot was included in the Draft Scheme.
Under the
circumstances, there was no question of the ownership and/or possession being
transferred to the petitioners/appellants by the court receiver. If that is so,
the amended property cards of City Survey 23 Office loose all the
significance. It is needless to mention that this contradiction stands
explained by the affidavits of city survey department and the Corporation and
the officers of Corporation.
18.
At
this juncture, it will be better to consider some provisions regarding the TPS
and its legal implication. Under Section 59(1)(a), the Planning Authority for
the purpose of implementing the proposals in Final Development Plan, prepares
the TPS for the area in its jurisdiction or any part thereof. Under Section 60,
the Planning Authority declares its intention to make a TPS and within 30 days,
publishes the declaration in the Official Gazette and a copy of the Plan is
available for inspection to the general public. Under Section 61, a Draft Scheme
is prepared. The limitation for it is 12 months. However, even if the Scheme
lapses because of the elapse of time of 12 months, that is no bar for making
fresh declaration. Section 65 provides for the power of the Planning Authority
to reconstitute the plots, while Section 68 speaks about the power of the State
Government to sanction the Draft Scheme.
Under sub-Section
(2), though there is a limitation provided, Section 68 (2) gives power to the
State Government to extend the time within which the Draft Scheme can be
sanctioned. Section 69 imposes restrictions on use and development of land
after declaration of TPS. Section 71 deals with the disputed claims as to the
ownership of any land included in the TPS or its declaration. Section 72
provides for the Arbitrator, who is to be appointed immediately after the
publication of the Draft Scheme.
24 Section 72(3)
deals with the duties of such Arbitrators. Section 73 gives finality to the
decisions of the Arbitrator. We have already seen the features of Section 83
under which the advance procedure can be started for taking the possession. In
the wake of all these provisions, we have examined the records at the request
of Shri Shyam Divan, Learned Senior Counsel for the petitioners/appellants,
including the possession receipts. Shri Divan tried to criticize the
proceedings before Arbitrator and tried to show that the possession was not
properly taken or given to Corporation, however, it is obvious that the
petitioners/appellants cannot question all those claims because the
petitioners/appellants were nowhere in the picture at that time. We are
satisfied with the proceedings before the Arbitrator and we are also satisfied
that the Arbitrator had already taken the advance possession under Section 86
(2) and 83(3) and had also forwarded a draft Scheme.
19.
Lastly,
Shri Divan tried to argue that the State Government in this case, had taken
unduly long period of 13 years for sanctioning the Scheme. He pointed out that
if the Scheme was sent in 1983, it was only sanctioned with effect from
15.4.1996, which was not possible. The Counsel urged that though the State
Government has power to extend the period for sanctioning the Scheme, it could
not be stretched to the unreasonable period of 13 years. We appreciate the
argument, however, considering the fact that the area is from a very busy
locality like Borivali, Mumbai, the legal complications because of the pending
25 suits and the unduly long time taken in finalizing the Scheme, we hold, that
by itself, cannot invalidate the whole Scheme. In our opinion, therefore, the
petitioners/appellants have not been able to prime facie prove the
petitioners/appellants title or possession, vis-a-vis, the land in question.
Some minor contentions were raised by Shri Divan regarding the breach of
Section 82(2), as also, Rule 18 of the MRTP (Maharashtra Regional and Town
Planning) Rules. However, all those challenges must fall in view of the fact
that the petitioners/appellants had not been able to prime facie establish his
contentions regarding title and possession. We do not mean to decide about the
title of the petitioners/appellants, however, all these enquiries and our
observations are only related to the Scheme and the claims made by the
petitioners/appellants, that the acquisition proceedings of the land in
question were bad, as they were not given any notice thereof. It is only with
that angle, that our observations should be read. It will be perfectly open for
the petitioners/appellants to establish their rights, if any, in relation to
the land in question in proper forums.
20.
This
takes us to a further question as to whether this Writ Petition was tenable at
all. It has been strenuously contended by Shri Savant, Learned Senior Counsel,
Shri Shishodia and Shri Kharde, Learned Counsel, that the claims in Civil Suit
and the Writ Petition were almost identical and the Civil Suit was still
pending, when the Writ Petition came to be filed, after the injunction was
refused to the 26 petitioners/appellants. The contention of the
petitioners/appellants, however, was that the frame of the Suit and the frame
of the Writ Petition are distinct. According to Shri Divan, Learned Senior
Counsel for the appellant, no reliefs in the Civil Suit were directed in the
proceedings under the Act, while the Writ Petition was in respect of the
illegalities, which vitiated the proceedings under the Act. According to Shri
Divan, the principal relief in the Writ Petition was directed against the
arbitral proceedings by the Arbitrator, culminating in the final sanction of
1996 and since the directions dt. 18.4.2006 and the Survey Notice dt. 21.8.2006
were consequential reliefs, they were included in the petition. According to
the Learned Counsel, the scope of the Suit was primarily directed at the bogus
and fraudulent Letter of Intent, granted after inflating the number of
occupants entitled to rehabilitation, and since the petitioners/appellants as
the owners, had not granted any `No Objection Certificate', there was no scope
for giving any Letter of Intent to any other party for developing the plots.
Shri Divan also argued that under Section 149 of the Act, there is a bar to the
jurisdiction of the Civil Court and, therefore, the petitioners/appellants were
justified in filing the Writ Petition. We would not go to the extent of saying
that the Writ Petition was altogether barred, since the High Court had
entertained the Writ Petition and had chosen to dispose it of on merits. We
leave the question at that, as we have found that the High Court was right in
dismissing the Writ Petition on merits, more particularly, holding that the
petitioners/appellants could not assert their 27 entitlement to the notice,
particularly, in view of the finalized proceedings of Arbitration under the
Act.
21.
We
must also take into consideration the argument on the part of the respondents,
that the petition was hopelessly belated. It cannot be disputed that the
Government had finalized the Scheme on 6.3.1996 and 7.3.1996. It is difficult
for us to believe that the petitioners/appellants asserting their title over
the land and who are in the construction business themselves as the builders,
could not and did not have the idea about the Scheme dt. 15.4.1996. It is also
surprising that the petitioners/appellants have come to know about the Scheme
etc. only when the Counter affidavit came in the Suit in reply to their
injunction application. It is also difficult to believe that the petitioners/appellants
had no idea, whatsoever, about the TPS, the Draft of which was sanctioned as
back as on 26.9.1962. We find that the TPS was finalized on 7.7.1978 and right
from 1972 to 1978, the proceedings before the Arbitrator were in progress. If
the petitioners/appellants claimed to have come on the property by way of an
auction purchase in the year 1981, which included Final Plot No. 22, it cannot
be believed that the petitioners/appellants would have no idea about the state
of affairs regarding the Scheme, which was already finalized in 1978. There is
a clear reference to the Town Planning Scheme II of Borivali in the Certificate
dated 24.09.1981 which is a basic document of the petitioners/appellants. It is
again difficult to believe that 28 the petitioners/appellants did not have
idea that the possession of this plot was already taken by the Arbitrator in
the year 1980 itself from Velkars. At any rate, at that stage, when the
possession was taken, if at all anybody had any grievance, it was the Velkars
and not the petitioners/appellants, because the petitioners/appellants were
nowhere on the scene on that date. Therefore, it could not lie in the mouth of
the petitioners/appellants that the possession was illegally taken from Velkars
or was not taken at all. There are enough documents on record to prove that the
possession was actually taken and was thereafter handed over to the
Corporation. Even at the cost of repetition, we may say that we have carefully
seen the records regarding possession of the plot being taken and being given
to the Corporation. On the other hand, there is nothing to suggest that the
Court Receiver actually took the physical or symbolic possession of Final Plot
No. 22C. At any rate, the appointment of the Court Receiver could not have affected
the earlier pending proceedings before the Arbitrator. It also does not lie in
the mouth of the petitioners/appellants, that there was no notification under
Section 83(2). In fact, the notification under Section 83(2) dt. 21.9.1979 was
duly published in official gazette on 4.10.1979. In the wake of this
notification, if the petitioners/appellants came on the legal scene in the year
1981, they were bound to enquire about the properties which they had allegedly
purchased in the Court auction. We are, therefore, convinced that the
petitioners/appellants maintained a sinister silence right from 1983 till they
ultimately filed the petition in the year 2006. We 29 are also surprised at
the fact that though the petitioners/appellants claimed to have got mutation in
the year 1986 on CTS Survey, they did not advert to the Corporation for
mutation at any stage. All this brings us to a conclusion that the petition was
hopelessly belated. Even on merits (presuming that the same could be
considered), it is difficult to appreciate the petitioners/appellants' efforts
to upset notification dt. 15.4.1996 by filing a Writ petition in 2006. We are,
therefore, convinced that the petition had no merits and was rightly dismissed.
22.
However,
the matters did not stand there, as at the end of the arguments, Shri Divan
also asserted that respondent No. 3 herein Ashtavinayak Cooperative Housing
Society Ltd. (proposed), as also respondent No. 4 M/s. Siddhivinayak Developers
did not have any locus in the matter and could not be given the development
rights for the aforementioned plots. We have heard Shri Kharde, Learned Counsel
appearing on behalf of the SRA on that question.
23.
In
view of several slum dwellers in Mumbai City and Mumbai Suburban Districts,
since the slum dwellers had no basic amenities, the Government of Maharashtra
decided to redevelop the slums and framed Development Control Regulation No.
33(10) (hereinafter called `DCR').
The Maharashtra
Government also amended the provisions of Maharashtra Slum Area (I.C & R)
Act, 1971 and inserted a chapter 1A therein. SRA was established under Section
3A of the Slum Act for 30 implementation of the Slum Rehabilitation Projects
in Mumbai City. At the same time, Government of Maharashtra also amended the
provisions of Maharashtra Regional and Town Planning Act, 1960 (`the Act'
herein) and by these amendments, the powers of Planning Authority were given to
SRA for implementation of Slum Rehabilitation Projects.
This is how the SRA
came into picture. The said Authority has issued guidelines for implementation
of the Schemes, under which the eligible slum dwellers, i.e., 70% or more, have
to form a society and appoint a Chief Promoter. The said Chief Promoter has to
collect all the documents such as 7/12 extracts and PR Card of the plot on
which the slum is situated. Under the said Scheme, the Chief Promoter has to
submit an application in prescribed form Annexure 1, which describes the
details of the ownership of land, plot area, existing hutments, amenities,
Floor Space Index available and number of tenements to be constructed. Annexure
2 to this application includes the details of the plots, declaration of slum by
the notification, structures on the plot, details of slum dwellers, who have
given consent in writing to the proposed Slum Rehabilitation Scheme etc. The
said Annexure 2 is required to be certified by the land owning authority, in
this case, the Corporation. Annexure 3 prescribes the assessment of financial
capability of the Promoter. SRA scrutinizes the proposal submitted by the Chief
Promoter and Architect and then issues a Letter of Intent.
24.
It
is pointed out by the Learned Counsel for the SRA that in this case, respondent
Nos. 3 and 4 submitted the proposals for Final Plot No. 22B in the year 2005.
As the TPS was implemented for the said area, it was apparent from the remarks
obtained by the Architect that the ownership of the plot was that of the
Corporation. Accordingly, the Corporation has issued Annexure 2 on 7.7.2005. It
is asserted that the SRA after scrutinizing the proposal issued the Letter of
Intent on 18.4.2006, which was subsequently revised, and the revised Letter of
Intent was issued on 12.9.2006. It was pointed out by the Counsel that
respondent No. 4 developer had obtained all the necessary permissions required
under the Act and the Regulations and respondent No. 4 had shifted the slum
dwellers since 2006 to transit camps and the expenses is borne by respondent
No. 4. It was pointed out by the Counsel that it was the right of the slum
dwellers to choose their developer and appoint him for the same by passing
resolution in its meeting. In short, under the Scheme, the Government or the
land owners have no right to impose a developer on the slum dwellers. The
Learned Counsel was also at pains to point out that under Section 14(1) of the
Slum Act, if the land owner was not prepared for allowing the development of
the slums on the encroached plot, the Slum Authority has the power to acquire
the property and proceed with the Scheme as per the wish of 70% of the slum dwellers.
It was pointed out by the Learned Counsel that only after all these
formalities, a Letter of Intent was issued in favour of Ashtavinayak
Cooperative Housing Society Ltd. (proposed) and M/s.
32 Siddhivinayak
Developers, respondent Nos. 3 and 4 herein respectively, who on their own
expenses have arranged for the transit accommodation of the slum dwellers in
the said plot. Both Shri Savant, as well as Shri Kharde, counsel for the
respondents, pointed out that for last two years, the slum dwellers are living
at the expenditure of the 4th respondent M/s Siddhivinayak Developers. This is
apart from the fact that the slum dwellers, who were uprooted from their
tenements, were now living at the far off place, suffering utmost on that
account. Learned Senior Counsel Shri Savant, urged that all these proceedings
under the Act would suggest that the Letter of Intent was issued properly. Shri
Savant also pointed out and referred to the provisions of Section 83(3) of the
Act, to point out that while M/s. Parag Construction, the appellant herein,
came on the scene on 24.9.1981 under the sale certificate dt.
21.9.1981, the Final
Plot No. 22B had already vested in the Planning Authority, i.e., the
Corporation under Section 83(3) of the Act, the possession of which was taken
way back in 1980. He pointed out that once the Arbitrator takes possession of
the land and hands over the land to the Planning Authority, such land vests
absolutely in the Planning Authority, free from all the encumbrances. The
Learned Senior Counsel rightly argued that the land which was handed over to
the Planning Authority, i.e., the Corporation, had vested in the Planning
Authority, free from all the encumbrances, including subsequent encumbrances of
the petitioners/appellants. We have already dealt with this aspect earlier in
the judgment and have already held that the land 33 had vested into the
Planning Authority, particularly, after the sanction under Section 86, as also
under Section 88(a) of the Act.
25.
The
Learned Counsel also invited our attention to Section 88(b), whereby, all
rights in the original plots, which have been reconstituted, are determined and
the reconstituted plots became subject to the rights settled by the Arbitrator.
We have already approved the proceedings before the Arbitrator. We have
referred to all these contentions in order to appreciate as to whether the
appellants can find fault with the proceedings under the SRA and more
particularly, against the 3rd and 4th respondent herein. We do not find any
reason to interfere with any of those proceedings.
26.
As
a desperate attempt, Shri Divan filed an affidavit on behalf of the appellants
that appellants should be permitted to develop the specified land in the Letter
of Intent dt. 18.4.2006 as per the terms and conditions specified in the said
Letter of Intent, for which the petitioners/appellants shall deposit a sum of
Rs.1 crore or such amount as directed by this Court within 2 weeks from the
date of the order with the Chief Executive Officer (CEO) of respondent No. 5,
SRA and that the CEO may be permitted to utilize the aforesaid amount to the
extent required to compensate respondent No. 4 towards any expenses that may
have been incurred by them, pursuant to the Letter of Intent towards
rehabilitation of the slum dwellers, upon rendering of accounts 34 by the said
respondent. We will not go into this aspect, particularly, at this juncture, as
we are concerned with the legality or otherwise of the challenged judgment.
27.
This
is apart from the fact that the said affidavit has been met with stiff
opposition from M/s. Siddhivinayak Developers, who claimed that they have
already spent Rs.2.5 crores excluding the interest till date, towards the
expenses of formation of society, shifting of slum dwellers, rental of slum
dwellers, various security deposits and legal expenses in defending present
litigation and other expenses. It is asserted by the 4th respondent that they
have been working on this project for more than 3 years and under the
circumstances, such an order should be made by this Court. As has been stated
earlier, we refuse to go into this question. It will be for the parties to
negotiate, if they want to, subject to the approval of the SRA. With these
observations, the appeal is dismissed, but without any orders as to the costs.
......................................J.
(Lokeshwar Singh Panta)
......................................J.
(V.S. Sirpurkar)
New
Delhi;
November
19, 2008.
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