Dismissed

Dudhnath Kallu Yadav v. the State of Maharashtra and 5 Ors.

Bombay HC25 Sept 2008WP/2303/2006

Case brief

AI extract

What is this about?

Palanisamy Chettiar. The petitioner challenged via writ petition the government notification acquiring his land for slum redevelopment under the Maharashtra Slum Act. The High Court dismissed the petition, finding the acquisition lawful and noting the petitioner's inconsistent pleas and lack of clean hands due to delay and prior failure to challenge the slum declaration.

What did the court decide?

Petitioner's writ petition was dismissed with no order as to costs.

Dudhnath Kallu Yadav Vs the State of Maharashtra and 5 Ors. — Land Acquisition | Bombay HC (2008)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO. 2303 OF 2006

¶4

 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

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 versus

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 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. )

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 3. Deputy Collector, )
 (Excess/Expulsion), )
 Griha Nirman Bhavan, )
 Ground Floor, Room No.68, )
 Bandra (East), Mumbai-400 051. )

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 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, )

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 Daftary Road, Opp-Dena Bank, )
 Malad (East), Mumbai-400 097. )...Respondents

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 Mr.Milind Sathe alongwith Mr.Ramchandra Yadav and
 Mr.Swapnil Joshi i/b. M/s.Vigil Juris for the
 Petitioner.

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 Mr.M.V. More, AGP for Respondent Nos.1 to 4.

¶12

 Mr.R.V. Govilkar alongwith Mr.P.M. Shah for Respondent
 No.6.

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CORAM : SWATANTER KUMAR, C.J. AND
V.M. KANADE, J.

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Date of reserving
 the judgment :17th June, 2008

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 Date of pronouncing
the judgment : 25th September, 2008

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ORAL JUDGMNET (PerV.M. KANADE, J.) :-

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 1. The petitioner is one of the co-owners in

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 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 :-

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 (a) That this Hon’ble court be pleased to

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 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");

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 (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;

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 (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;

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 (c) For interim an ad interim reliefs in

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 terms of prayer (b) the above;"

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 . Brief facts are as under :-

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 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,

¶29

 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.

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 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.

¶32

 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

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 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.

¶35

 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

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 existing structure. It was further submitted that the

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 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.

¶39

 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

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 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.

¶42

 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

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 without any substance. Though it is true that the

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 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

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¶47

 petitioner, therefore, cannot be permitted to make

¶48

 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.

¶49

 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

¶50

 through his Advocate raised some objections. These
 objections were considered by respondent no.2 and he

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 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

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 of the Award was communicated to the petitioner and he

¶55

 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.

¶56

 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
Navnirman Co-operative Housing Society Ltd. and Anr.

¶57

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

¶58

 correctly declared and the particulars have been given
 by him in the affidavit-in-reply. However, this issue

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 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).

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 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

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¶63

 was followed by the respondents herein. The petitioner

¶64

 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.

¶65

 9. Writ Petition, therefore, is dismissed. Under

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 the circumstances, there shall be no order as to costs.

¶68

 CHIEF JUSTICE

¶69

 V.M. KANADE, J.

Dudhnath Kallu Yadav v. the State of Maharashtra and 5 Ors.

Case brief

What is this about?

What did the court decide?

Dudhnath Kallu Yadav v. the State of Maharashtra and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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